Judge: Ashfaq G. Chowdhury, Case: 24NNCV00432, Date: 2024-08-09 Tentative Ruling
Case Number: 24NNCV00432 Hearing Date: August 9, 2024 Dept: E
Case No: 24NNCV00432
Hearing 08/09/2024 – 11:00am
Trial Date: UNSET
Case Name: OG PASADENA, LLC, a California limited
liability company v. WILLIAM D. HOYMAN, an individual; ALL OTHER PERSONS
UNKNOWN, CLAIMING ANY RIGHT TITLE, ESTATE, LIEN OR INTEREST IN THE REAL
PROPERTY DESCRIBED IN THE COMPLAINT, ADVERSE TO PLAINTIFFS’ OWNERSHIP INTEREST
OR ANY CLOUD ON PLAINTIFFS’ TITLE THERETO; and DOES 1-50, inclusive
MOTION 1
TENTATIVE RULING MOTION 1
A
motion to strike ending with the Res ID 8374 is on calendar for 8/9/2024. This
motion to strike (Res ID 8374) is DENIED as moot. It was filed on 6/27/2024 and
is directed at Plaintiff’s original complaint filed on 3/22/2024. However,
after the filing of this motion to strike on 6/27/2024, a First Amended
Verified Complaint for Unlawful Detainer was filed on 7/10/2024.
MOTION 2
The instant motion to
strike was filed on 7/23/2024 and is Defendant’s Motion to Strike Plaintiff’s
First Amended Complaint for Unlawful Detainer After Foreclosure. This motion
was originally scheduled for 8/30/2024; however, on 8/5/2024, this Court
granted Plaintiff’s ex parte application for an order shortening time to
hear Defendant’s Motion to Strike Plaintiff’s First Amended Complaint for
Unlawful Detainer After Foreclosure. The 8/5/2024 Minute Order noted that the
instant hearing on the instant motion to strike is scheduled for 08/09/2024.
PROCEDURAL ANALYSIS
Moving Party: Defendant, William D. Hoyman
Responding Party: Plaintiff,
OG Pasadena, LLC
Moving Papers: Notice/Motion
Opposition Papers: Opposition
Reply Papers: No Reply
submitted
Proof of Service
Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP § 1005(b)): Ok – the Court granted Plaintiff’s ex
parte to hear this motion on the instant date.
Proper Address (CCP § 1013, § 1013a, § 1013b): Ok
RELIEF REQUESTED
Defendant, William D. Hoyman, moves pursuant to
CCP §§ 435 and 436 to strike Plaintiff’s FAC on the grounds that it is not
drawn in conformity with the laws of this state, in that it does not state in
the caption “Action based on Code of Civil Procedure Section 1161a.”
The motion will be
based on this notice of motion and motion, on the declaration of Defendant
William D. Hoyman and the supporting memorandum served and filed with this
notice and motion, on the records and file herein, and on such evidence as may
be presented at the hearing of the motion.
Meet and
Confer
Before filing a motion
to strike pursuant to this chapter, the moving party shall meet and confer in
person or by telephone with the party who filed the pleading that is subject to
the motion to strike for the purpose of determining if an agreement can be
reached that resolves the objections to be raised in the motion to strike. If
an amended pleading is filed, the responding party shall meet and confer again
with the party who filed the amended pleading before filing a motion to strike
the amended pleading. (CCP § 435.5(a).)
Here, in the Hoyman
declaration, Hoyman makes no indication that he attempted to meet and confer.
“A determination by the
court that the meet and confer process was insufficient shall not be grounds to
grant or deny the motion to strike.” (CCP § 435.5(a)(4).)
The grounds for moving to strike must appear on
the face of the pleading or by way of judicial notice. (Code. Civ. Proc. §
437; Turman v. Turning Point of Central California, Inc. (2010) 191
Cal.App.4th 53, 63 [“judges read allegations of a pleading subject to a motion
to strike as a whole, all parts in their context, and assume their
truth”].)
Further, CCP § 431.10(a)-(c) states as follows:
(a) A material allegation
in a pleading is one essential to the claim or defense and which could not be
stricken from the pleading without leaving it insufficient as to that claim or
defense.
(b) An immaterial
allegation in a pleading is any of the following:
(1) An allegation
that is not essential to the statement of a claim or defense.
(2) An allegation
that is neither pertinent to nor supported by an otherwise sufficient claim or
defense.
(3) A demand for
judgment requesting relief not supported by the allegations of the complaint or
cross-complaint.
(c) An “immaterial
allegation” means “irrelevant matter” as that term is used in Section 436.
(CCP §§ 431.10(a)-(c).)
TENTATIVE RULING MOTION 2
Filing Fees
As a preliminary matter, this motion does not have a CRS #.
“[P]ayment of filing fees is both mandatory and
jurisdictional.” (Hu vs. Silgan Containers Corp. (1999) 70 Cal. App. 4th
1261, 1269.)
If Defendant wants this motion heard, Defenant is ordered to
pay the filing fees prior to the hearing on this motion.
CCP § 1166(c)
“In an action regarding residential real property based on
Section 1161a, the plaintiff shall state in the caption of the complaint
“Action based on Code of Civil Procedure Section 1161a.”” (CCP § 1166(c).)
Defendant argues that under CCP §§ 435 and 436 the Court must
enter an order striking Plaintiff’s FAC because it was not drawn in conformity
with the laws of this state because Plaintiff did not state in its caption, “Action
based on Code of Civil Procedure Section 1161a.”
The Court will hear argument.
First, even though Defendant argues that the Court “must”
enter an order striking Plaintiff’s FAC on the grounds that the FAC is not
drawn in conformity with the laws of this state, this Court notes how the
language of CCP § 436 does not say “shall” or “must.” In relevant part, “The
court may, upon a motion made pursuant to 435, or at any time in
its discretion, and upon terms it deems proper…” (CCP § 436,
emph. added.)
Further, the Court will hear argument because it is not
entirely clear what Plaintiff’s position is in the Opposition with respect to
CCP § 1161a.
On the one hand, Plaintiff argues that CCP § 1166(c) does not
apply because the FAC does not allege that the real property at issue is
residential real estate. Plaintiff points out that the FAC alleges that the
subject property is being operated as an unlicensed boutique hotel/bed and
breakfast commonly known as The Bissell House by Hoyman. Plaintiff argues that
the subject property is thus a commercial operation, and therefore since this
action is not based on residential property, 1166(c) doesn’t apply and
Plaintiff does not have to state in its caption that this is an “Action based
on Code of Civil Procedure Section 1161a.”
On the other hand, Plaintiff acknowledges that the FAC’s
caption indicates it is an action based on 1161(a), instead of indicating that
it is an action based on 1161a, no parentheses. Plaintiff thus argues that
rather than striking the entire FAC for this minor infraction, the Court should
strike only the parentheses surrounding the a in § 1161(a) so that the only
remaining portion is § 1161a instead of § 1161(a).
Tentatively, the Court seems to agree that striking just the parentheses
surrounding the a in § 1161(a) would be a more appropriate manner to handle the
defect that Defendant is complaining about.
However, this raises the question: if the Court strikes the parentheses,
is the Plaintiff in fact alleging that this is an action regarding residential
real property based on section § 1161a, or is it not?
It seems as if Plaintiff should be the one to know this
answer, since Plaintiff is the one bringing this action.
Further, even if this Court strikes only the parentheses, it
still appears as if the Court would need to strike the parentheses and then
grant leave to amend to file a second amended complaint so that Plaintiff can file
the SAC that does not include the parentheses.
Because if the Court strikes the parentheses and Plaintiff
doesn’t file an amended complaint without the parentheses, and this FAC becomes
the operative complaint, the Court will not be able to tell that the parentheses
were previously stricken from the FAC unless it is pointed out to the Court by
one of the parties.
Further, the Court notes that this entire motion could have
likely been avoided if Defendant Hoyman had complied with its obligations under
CCP § 435.5 and met and conferred with Plaintiff.
MOTION 3 and MOTION 4
Motion 3 is Plaintiff’s motion that ends with the Res ID
6461. Motion 3 was filed on 6/20/2024.
In this motion, Plaintiff seeks an order to compel Defendant,
William D. Hoyman, to appear for and attend his deposition along with the
production of documents; for an order to compel inspection and access of the
subject real property (201 Orange Grove Avenue, South Pasadena, CA) by
Plaintiff, and for the imposition of monetary sanctions in the sum of
$1,960.00.
Exhibit 1 of Motion 3 is Plaintiff’s notice of taking the
deposition of Defendant and request for production of documents. This notice
was served on May 31, 2024. This notice indicates that the deposition is to
occur on June 20, 2024, and that Defendant is required to produce the documents
that are requested in the 20 requests for production that are listed in this
deposition notice.
Exhibit 2 of Motion 3 is Plaintiff’s demand for physical
inspection of 201 Orange Grove Avenue, South Pasadena, A. The Demand for
Inspection of Property in Exhibit 2 states:
Plaintiff, OG Pasadena, LLC, (“Asking Party” or
“Plaintiff”), demand to Defendant, WILLIAM D. HOYMAN, to make available,
without objection, Plaintiff’s statutory right to inspect and enter any portion
(interior and exterior) of real property, located at 201 Orange Grove Avenue,
South Pasadena, California for the purpose of inspecting, measuring, surveying,
photographing, videotaping, taking inventory any portion of said property on
the date of June 19, 2024, between the hours of 10:00 a.m. and 3:00 p.m. Said
inspection, measuring, surveying, inventory and photographing will be done by
visual inspection, photography, videography, tape measurement, and measurement
by laser. Said inspection, measuring, surveying, taking inventory, and
photographing may include opening doors, closing doors, or moving objects that
are obstructing access to any portion of the premises. Access to all rooms,
basements, appurtenant structures, garages, buildings, sheds, storage units,
pool areas and the like shall be unlocked and immediately accessible to Plaintiff,
its agents, attorneys, inspectors and contractors. The activities will not
permanently alter or destroy the land, buildings or any items involved. However,
the Plaintiff may and intends to install permanent security cameras at various
locations on the property during the inspection. To complete this task, it may
require multiple visit by licensed contractors to complete installation.
(Exhibit 2, Motion 3.)
This demand for inspection indicates that it was
served on May 31, 2024 and that the inspection was to occur on June 19, 2024.
Motion 4 is Plaintiff’s motion that ends with the Res
ID 0588. Motion 4 was filed on 7/11/2024.
The relief requested in Motion 4 states:
Plaintiff OG PASADENA, LLC (“Plaintiff”),
will and hereby does apply to this Court, for an Order to further compel
Defendant WILLIAM D. HOYMAN to appear for and attend his deposition with
documents as previously ordered by this court and without objection; for an
order to compel inspection and access of the subject real property located at
201 Orange Grove Avenue, South Pasadena, California, without objection or
interference and for the imposition of monetary sanctions in the sum of
$53,682.30.
This Application is based on this notice,
the accompanying Memorandum of Points and Authorities, the Declaration of
Daniel A. Nassie and any Exhibits attached thereto, and whatever oral and
documentary evidence may be presented at the hearing on this matter.
(Pl. Mot. p. 2.)
ANALYSIS
As
a preliminary matter, it is unclear if Motion 3 has been heard and ruled on
based on Plaintiff’s arguments and based on the lack of clarity in the 6/24/2024
Minute Order.
Plaintiff’s Motion 3 was
filed on 6/20/2024, and on 6/21/2024 Plaintiff filed an ex parte application
for an order shortening time to hear Plaintiff’s Motion 3.
Confusingly, in the
6/24/2024 Minute Order [the date the Court heard Plaintiff’s ex parte application
for an order shortening time to hear Plaintiff’s Motion 3], the Court not only
granted the ex parte to shorten time to hear Plaintiff’s Motion 3, but
the Court also noted that, “The deposition of defendant is ordered to proceed
within the next five business days. The inspection of the property is ordered
to proceed within the next five business days. Court notes the defendant’s
objections. Plaintiff to file Proposed Order for Court to sign.” (Min. Order,
6/24/2024, p. 2.)
This is confusing because
despite the fact that the ex parte was for shortening time to hear
Motion 3, it appears as if the 6/24/2024 Minute Order compelled the deposition
and the inspection of property, which was the relief that was actually sought
in Motion 3, not the ex parte. Or to phrase it differently, it seems as
if the 6/24/2024 Minute Order ruled on matters brought up in Motion 3, and not
just on the issue of shortening time, which is what the ex parte was
about.
Further, if the 6/24/2024
did in fact rule on matters brought up in Motion 3, the Court did not mention anything
with respect to the request for production of documents. Motion 3, in relevant
part, sought to compel the deposition, along with document requests in the
deposition notice, and an inspection of the property. The 6/24/2024 Minute
Order only commented on the deposition and inspection of property, not the
document requests.
To add further confusion,
in Plaintiff’s Motion 4 that was filed on 7/11/2024, Plaintiff indicates that on
6/24/2024, this Court granted Plaintiff’s ex parte application to compel
the deposition of Defendant and for inspection of the subject real property. This
adds further confusion because the ex parte was titled as an ex parte
for an order shortening time to hear Motion 3, not an ex parte to
actually compel the deposition and inspection of property.
Therefore, the Court will
hear argument as to whether or not Motion 3 was ruled on, and what the ex
parte hearing on 6/24/2024 did and did not rule on. The ex parte on
6/24/2024 did not discuss the production of documents in the deposition notice.
Further, the Court is
uncertain as to what Plaintiff’s Motion 4 is.
Plaintiff’s Motion 4
requests this Court for an order to “further compel Defendant WILLIAM D. HOYMAN
to appear for and attend his deposition with documents as previously ordered by
this court and without objection; for an order to compel inspection and access
of the subject real property located at 201 Orange Grove Avenue, South
Pasadena, California, without objection or interference and for the imposition
of monetary sanctions in the sum of $53,682.30.” (Pl. Mot 4, p. 2.)
This request is confusing
because if Plaintiff is requesting Defendant to comply with the Court’s
previous order to attend the deposition and allow inspection of the property,
then it appears as if Plaintiff’s Motion 4 should have been brought under CCP §
2025.450(h) because that statute pertains to when a party deponent fails to
obey a previous order to compel.
However, it is confusing
if Plaintiff is in fact seeking an order based on Defendant failing to obey a
previous order because Plaintiff’s Motion 4 also mentions how after the
6/24/2024 hearing on the ex parte, Plaintiff re-noticed the deposition and
inspection to take place.
Therefore, it appears as
if Plaintiff is basing Motion 4 on a different deposition notice than Motion 3,
in which case it is possible that a motion to compel a deposition under
2025.450(a)-(b) would be more appropriate than moving to compel under
2025.450(h) for failing to comply with a prior order.
Overall
Setting
aside whether or not Motion 3 was already ruled on, it is difficult to
determine what should be done with respect to Motion 3 because it is difficult
to determine the legal authority that Plaintiff is basing its request for
relief in Motion 3.
The notice of Motion for
Motion 3 does not indicate which statute Plaintiff is moving under. While the
notice does not indicate which statute Plaintiff is moving under, the
memorandum in Motion 3 does in fact cite to CCP § 2025.450. However, Plaintiff does
not explain how it has satisfied the requirements of § 2025.450(a)-(b). For
example, Motion 3 seeks not only to compel a deposition, but the deposition
notice included requests for production. Under § 2025.450(b), the motion shall
set forth specific facts showing good cause justifying the production for the
things described in the deposition notice. (See CCP § 2025.450(b).) Nowhere in
Motion 3 does Plaintiff address the requests for production; therefore, the
Court fails to see how Plaintiff demonstrated good cause for the production
requests.
Additionally, Motion 3
not only sought to compel the deposition and production requests as indicated
from the deposition notice, but Motion 3 also sought an order to compel
inspection and access of the subject real property.
It appears as if seeking
to compel inspection of the subject property is an entirely different discovery
tool. CCP § 2025.450(a) pertains to “after service of a deposition notice.” The
demand for physical inspection has nothing to do with the deposition notice. In
fact, the demand for physical inspection located in Exhibit 2 of Motion 3 cites
to § 2031.010. Plaintiff’s Motion 3 does not cite any legal authority as to
what statute applies to compelling a demand for physical inspection, nor does
Plaintiff’s Motion 3 cite to how it met the applicable statutory requirements,
whatever those may be. Additionally, since the demand for physical inspection
appears to be a completely different discovery tool than the deposition notice,
it appears as if Plaintiff’s Motion 3 should have been separated into two
motions because a motion must be brought separately as to each discovery method
at issue – here the deposition notice and the demand for physical inspection.
Therefore, the Court will hear argument as to if
Motion 3 should have been separate into two motions. “[P]ayment of filing fees is both mandatory
and jurisdictional.” (Hu vs. Silgan
Containers Corp. (1999) 70 Cal. App. 4th 1261, 1269.)
Likewise, Motion 4
faces several of the same issues that Motion 3 faced. Motion 4 does not cite to
any legal authority for the basis of its relief requested. Not only does the
notice page in Motion 4 not cite the statutory basis, but the memorandum also
does not cite to any statutory basis for the relief requested. Further,
whatever statutory section is applicable here for Motion 4, Plaintiff makes no
attempt to explain how it met those requirements, whatever they may be. Additionally,
Motion 4 faces the same problem that Motion 3 faced with respect to not filing
two separate motions for the two separate discovery tools – the deposition
notice and the physical inspection demand.
To make matters even
worse, not only are Motions 3 and 4 unclear and not rooted in argumentation
being tied to legal authority, but Defendant’s opposition papers are equally as
unclear.
Defendant filed a
document on 7/23/2024 titled, “Defendant’s Objection And Notice of Non-Consent
To Plaintiff’s Demand To Install Video Surveillliance [sic] Spy Technology
Disguised As A Mere Inspection Of Real Property; Declaration of William D.
Hoyman.” The Court notes that it is unclear if this document is directed at the
Demand for Inspection of Property that was supposed to take place on June 19,
2024 or if it is directed at the amended Demand for Inspection of Property that
was to take place on June 27, 2024.
Defendant also filed a
document on 7/23/2024 that is an Opposition to Plaintiff’s Motion to Further
Compel Defendant’s deposition with production of documents and order to compel
inspection.
Defendant’s documents
in Opposition are equally as difficult to decipher as Plaintiff’s motion
because Defendant also fails to cite legal authority for its arguments on many
occasions.
With respect to
Defendant’s objection to Plaintiff’s demand to install video spy surveillance, Defendant
states:
Pursuant
to CCP § 1161a, in order to have occupants removed from the premises, Plaintiff
OG Pasadena, LLC (“Plaintiff”) must prove:
a.
that the
property was sold in accordance with CIV § 2924 under a power of sale in a deed
of trust;
b.
that title
under the sale has been duly perfected;
c.
that the
occupant(s) were served a valid notice to quit; and,
d.
that the
occupant(s) still occupies the premises after expiration of a valid notice to
quit.
(Def. Objection p. 2.)
Confusingly, although Defendant states “pursuant to CCP § 1161a,” it
is unclear where Defendant is getting the aforementioned language. CCP § 1161a
consists of subsections (a)-(d), and Defendant does not cite a single
subsection.
Setting that issue
aside, Defendant admits he still occupies the premises and that there is no
additional evidence needed by Plaintiff to “prove this element.”
Defendant argues that
an inspection wouldn’t produce any relevant evidence in support of its
allegations of a 2924-compliant sale, duly perfected title, or service of a
valid notice to quit.
Defendant argues that
the inspection of physical property is harassing and abusive because it
requests that Plaintiff may and intends to install permanent security cameras.
Defendant argues that this inspection goes beyond the legislative intent to
allow alteration of property or install security cameras. Defenant argues the
spy cameras violate his constitutional rights.
In Defendant’s
Opposition to Plaintiff’s Motion to Further Compel Defendant’s deposition with
production of documents and order to compel inspection, Defendant also asserts
the same argument that it previously asserted in its objection document with
respect to 1161a and how the inspection will not produce evidence to prove an
essential element of Plaintiff’s claim because Defendant admits that it still
occupies the subject property, so no additional evidence is needed. In this
Opposition, Defendant cites CCP § 1161a(b) as the elements for Plaintiff’s
cause of action.
While it is not
entirely clear how Defendant is arriving at what the elements of § 1161a(b)
are, the Court notes what § 1161a(b) states:
(b) In
any of the following cases, a person who holds over and continues in possession
of a manufactured home, mobile home, floating home, or real property after a
three-day written notice to quit the property has been served upon the person,
or if there is a subtenant in actual occupation of the premises, also upon such
subtenant, as prescribed in Section 1162, may be removed therefrom as
prescribed in this chapter:
(1) Where
the property has been sold pursuant to a writ of execution against such person,
or a person under whom such person claims, and the title under the sale has
been duly perfected.
(2) Where
the property has been sold pursuant to a writ of sale, upon the foreclosure by
proceedings taken as prescribed in this code of a mortgage, or under an express
power of sale contained therein, executed by such person, or a person under
whom such person claims, and the title under the foreclosure has been duly
perfected.
(3) Where
the property has been sold in accordance with Section 2924 of the Civil Code,
under a power of sale contained in a deed of trust executed by such person, or
a person under whom such person claims, and the title under the sale has been
duly perfected.
(4) Where
the property has been sold by such person, or a person under whom such person
claims, and the title under the sale has been duly perfected.
(5) Where
the property has been sold in accordance with Section 18037.5 of the Health and
Safety Code under the default provisions of a conditional sale contract or
security agreement executed by such person, or a person under whom such person
claims, and the title under the sale has been duly perfected.
(CCP § 1161a(b).)
The Court will hear arguments as to if an inspection of the property
is needed.
Defendant also argues that Plaintiff cites no provision within CCP §
2013.010 that entitles Plaintiff to install spy cameras and make invasive
alterations to the property.
Defendant also argues that since the discovery was served on May 31,
2024, there was no claim before the Court because the FAC was not filed until
July 10, 2024. The Court does not find this argument availing. The original
complaint was filed on 3/22/2024. On 5/29/2024, this Court denied Defendant’s
motion to quash service of summons. Defendant provides no on point legal
authority that there was no controversy before the Court and that Plaintiff’s
lacked standing simply because an amended complaint was served after discovery
was served, despite the fact that the Court denied Defendant’s motion to quash
service of summons on 5/29/2024.
Defendant’s Opposition also argued that the deposition was
unilaterally scheduled; however, Defendant cites no legal authority that this
is grounds to deny a motion to compel a
deposition.
TENTATIVE
RULING MOTIONS 3 and 4
The Court will hear argument. Both parties
fail to explain their arguments in any type of comprehensible manner that is
tied to legal authority. Both motions 3 and 4 requested sanctions. The Court
will also hear argument on sanctions.