Judge Layne H. Melzer, Case 2022-01280840 2022-12-06 Tentative Ruling

Judge: Layne H. Melzer, Case: 2022-01280840, Date: 2022-12-06 Tentative Ruling

Petitioner City of Westminster

Petition For Order To Abate Substandard Building and Appointment of Receiver

The Petition brought by the City of Westminster, pursuant to Health & Safety Code §17980.6 and Health & Safety Code §17980.7 is CONTINUED to 12/22/22 at 2PM , to permit Petitioner to address the interest holder Sungevity Development, LLC.

Petitioner offers the Declaration of paralegal Lois Moy, who declares that “[p]art of my assigned duties is to contact a title company to request a litigation guarantee title report for the Subject Property.” (¶3 of Moy Declaration.) Per Ms. Moy, the most recent litigation guarantee is attached to her Declaration as Exhibit 1. (Id.) Per the litigation guarantee, title to the estate is vested in Dennis D. Webb and Dianna E. Webb, husband and wife as joint tenants. (Id.) The litigation guarantee also reflects recorded interests held by Bank of America, N.A., Kina’ole Hawaii Kai Solar, LLC, Sungevity Development, LLC, and Sunrun, Inc. (Id.)

Thereafter, Petitioner offers the death certificate of Dennis D. Webb, which indicates he passed on January 12, 2019. (¶4 of Moy Declaration and Exhibit 2 thereto.) Based on the same, Respondent Diana Webb is the sole remaining owner of the property.

The instant Petition was appropriately personally served on Diana Webb, Bank of America, N.A., Kin’Ole Hawaii Kai Solar, LLC and Sunrun, Inc. (ROA Nos. 20, 22, 24 and 26); however, Sungevity Development, LLC has not been listed as a Respondent in this action or served with the Petition.

As indicated briefly above, the litigation guarantee identifies this entity as jointly holding an interest in the property with Kina’ole Hawaii Kai Solar, LLC:

12. Matters contained in document entitled Notice of an Independent Solar Energy Producer Contract by and between Dianna E. Webb; Kina'ole Hawaii Kai Solar, LLC and Sungevity Development, LLC recorded September 30, 2016 as Instrument No. 2016000475625, of Official Records.

(¶3 of Moy Declaration and Exhibit 1 thereto.) Indeed, the interest of Sungevity Development, LLC, identified in the litigation guarantee, is identical to the interest of Sunrun, Inc., which has been named as a Respondent herein:

14. Matters contained in document entitled Notice of an Independent Solar Energy Producer Contract by and between Dianna E. Webb and Sunrun Inc. recorded July 8, 2020 as Instrument No. 2020000322810, of Official Records.

(¶3 of Moy Declaration and Exhibit 1 thereto.) Petitioner does not address this entity within the Petition or otherwise offer any explanation for its exclusion from this action.

Additionally, to demonstrate compliance with Health & Safety Code §17980.7(c), Lois Moy attaches true and correct copies of the Notice of Intent and its Proofs of Service. (¶6 of Moy Declaration and Exhibits 4 and 5 thereto.) A review of these documents confirms that on August 31, 2022, more than 3-days prior to the initiation of this action, the City had a Notice of Intent to File a Petition conspicuously posted on the door of the property. (¶6 of Moy Declaration and Exhibits 4 and 5 thereto.) Similarly, the Notice of Intent was mail served that same day, on Dianna E. Webb, Bank of America, Kina’ole Hawaii Kai Solar, LLC and Sunrun, Inc. (Id.) Once again, however, the Notice of Intent was not served on Sungevity Development, LLC.

The notice is dated August 31, 2022 and communicates Petitioner’s intent to file an action for the appointment of a receiver. (¶6 of Moy Declaration and Exhibit 4 thereto.) The instant action was subsequently initiated on September 13, 2022. (ROA No. 2).

Based on the above, Petitioner complied with the requirements of Health & Safety Code §17980.7(c), only with respect to the named Respondents. Absent evidence that Sungevity Development, LLC was no longer, as of August 31, 2022, an interest holder in the property, full compliance with Health & Safety Code §17980.7(c) has not been shown.

Additionally of note, per the Declaration of Lois Moy, a Notice to Abate was served by her office on July 26, 2022. (¶5 of Moy Declaration and Exhibit 3 thereto). Exhibit 3 includes a Proof of Service, demonstrating mail service of the same on all Respondents. Interestingly, the Notice to Abate was mail served on Sungevity Development, LLC, albeit not on the address listed in the litigation guarantee. (¶3 and ¶5 of Moy Declaration and Exhibits 1 and 3 thereto.)

Nonetheless, by including Sungevity Development, LLC in the service of the Notice to Abate, Petitioner appears to concede that this entity was an interest holder in the property. At least as of July 26, 2022.

Based on all of the above, the instant Petition is CONTINUED to 12/22/22 at 2PM. Petitioner is ordered to file a Supplemental Brief and Declaration, no later than 9 Court days prior to the continued hearing date, which addresses the interest of Sungevity Development, LLC. Petitioner shall, if appropriate, explain with citation to legal authorities any reason why this Petition may proceed without including Sungevity Development, LLC as a Respondent and without properly serving the same.

Petitioner shall, additionally, provide notice of the instant continuance and file a Proof of Service demonstrating such notice, no later than 9 court days prior to the continued hearing date.