Judge: Mary H. Strobel, Case: 21STCV34079, Date: 2023-04-13 Tentative Ruling

Case Number: 21STCV34079    Hearing Date: April 13, 2023    Dept: 82

            Plaintiff and Cross-Defendant Toi Davis (“Plaintiff”) moves for appointment of a receiver over 10614 S. Hoover Street, Los Angeles CA 90044, Assessor’s Identification Number (“AIN”): 6061-019-004 (“Property”).  The court twice previously denied this same relief.  Plaintiff now renews the motion. 

Judicial Notice

Plaintiff’s Request for Judicial Notice (“RJN”) Exhibits B, C, D – Granted.  (Evid. Code § 452(b), (c), (h).) 

Background and Procedural History

            Plaintiff contends that she took title to the Property in May 2019 with her brother-in-law Timothy Galloway.  (See Davis Decl. filed 10/24/22 (“1st Davis Decl.”) ¶ 5.)  Plaintiff declares that her good credit was used to obtain the loan for the Property and, in exchange, Galloway agreed Plaintiff would receive $50,000 when the Property sold at a profit.  (Id. ¶ 7.)  Plaintiff declares that “the deed where GALLOWAY and me took title to THE PROPERTY” showed Plaintiff as having a 50% interest in the Property.  (Id. ¶ 8.)  Plaintiff contends that, in June 2020 and at the residence of Defendant Shandrea Moody, Plaintiff “sign[ed] unknown documents that would amount to an agreement relieving me from the financial responsibility for payment of” the loan for the Property.  (Id. ¶¶ 9-13.)  On or about October 17, 2020, Galloway passed away.  (Id. ¶ 18.)  Plaintiff alleges that Moody has not used rent from the Property to pay the mortgage; that the mortgage is “seriously into arrears”; and that a notice of default was served by Planet Home Lending showing a default amount of $37,663.92.  (Id. ¶¶ 19-50 and Exh. D.) 

On September 15, 2021, Plaintiff filed her complaint for cancellation of deed, fraud, conversion, and quiet title against Defendant Shandrea Moody and Urban Not Average, Inc. (“Defendants”). 

On February 1, 2022, Defendants filed a cross-complaint for accounting and conversion.  The cross-complaint alleges, inter alia¸ that Plaintiff co-signed the loan for the Property with Galloway and that it was agreed that Plaintiff “would be on the title … until such time as either the loan was paid off or her name was otherwise removed from it.”  (Cross-Compl. ¶ 8.)  The cross-complaint alleges that Plaintiff and Galloway sold the Property to Defendants in June 2020. (Id. ¶ 9.)

On October 11, 2022, the court granted Plaintiff’s ex parte application for an order shortening time to a hear a motion to appoint receiver.  The court set the motion for hearing on November 15, 2022, and set a briefing schedule. 

On November 15, 2022, after a hearing, the court denied Plaintiff’s first motion to appoint a receiver.  The court’s minute order provided a summary of receivership law and the court’s reasons for denying the motion.  That discussion is not repeated here but is incorporated by reference.  The court denied Plaintiff’s oral request to continue the motion.  The court instructed that “[i]f the motion is re-filed, counsel is to comply with Code of Civil Procedure Section 1008.”

On December 19, 2022, Defendant Moody filed and served a substitution of attorney removing Defendant’s former attorney, Joel S. Farkas, Esq., and stating that Defendant would represent herself.   That same date, Defendant Urban Not Average, a corporation, also filed a substitution removing Farkas as counsel and stating that it would be represented by Defendant Moody. 

On December 19, 2022, Plaintiff filed and served her second motion to appoint a receiver.    

On January 12, 2023, after a hearing, the court denied Plaintiff’s second motion for appointment of receiver for insufficient notice. 

On March 15, 2023, Plaintiff filed and served her third motion for appointment of a receiver.  No opposition has been received. 

Analysis

Compliance with CCP Section 1008

In its November 15, 2022, ruling, the court instructed that “[i]f the motion is re-filed, counsel is to comply with Code of Civil Procedure Section 1008.”

Legal Standard

Code of Civil Procedure section 1008 governs applications to reconsider and provides, in relevant part:

(a)  When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.

(b)  A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on ex parte motion.

….[¶]

(e) This section specifies the court's jurisdiction.... No application to reconsider any order … may be considered by any judge or court unless made according to this section.

“A motion for reconsideration may only be brought if the party moving for reconsideration can offer ‘new or different facts, circumstances, or law’ which it could not, with reasonable diligence, have discovered and produced at the time of the prior motion. . . .A motion for reconsideration will be denied absent a strong showing of diligence.”  (Forrest v. State Of Cal. Dept. Of Corps. (2007) 150 Cal.App.4th 183, 202.)  A renewal motion pursuant to CCP section 1008(b) is also subject to this reasonable diligence requirement.  (See California Correctional Peace Officers Ass’n v. Virga (2010) 181 Cal.App.4th 30, 47.) 

“A trial court may not grant a party’s [statutory] motion for reconsideration that does not comply with section 1008.’”  (Cox v. Bonni (2018) 30 Cal.App.5th 287, 312.) 

Motion for Reconsideration Pursuant to Section 1008(a) is Untimely

            Plaintiff gave notice of the court’s November 15 ruling on November 17, 2022.  Plaintiff did not move for reconsideration within 10 days of November 17, 2022.  Accordingly, any motion pursuant to section 1008(a) is untimely and must be denied.  The court considers the motion as a renewed motion under section 1008(b).

Plaintiff’s New or Different Facts, Circumstances, or Law

In her notice of motion, Plaintiff states: “This Motion is not barred by C.C.P. § 1008 because it is based on new facts which were not available to counsel at the time the last motion was filed. Specifically, Ms. Moody (who is now representing herself) stated clearly in a meeting with me that she will never permit plaintiff to reside at the property. By her own telling, Ms. Moody suffers from serious mental illness, which, it appears to me, would include serious delusional thinking. Ms. Moody’s ‘plans’ for the property will certainly guarantee foreclosure as the property is $60,731.16 in arrears as of February 17, 2023.”  (Mot. 2.) 

            In his declaration, attorney Kielty describes this December 12, 2022 meeting with Defendant, as discussed in the analysis below.  (Kielty Decl. ¶ 53.)  Plaintiff also makes factual representations about this December 12 meeting in the motion that are not contained in the declaration.  Those statements are not verified and are not competent evidence.  (See Mot. 9:11-24; CCP § 2015.5.) 

            The December 12, 2022, meeting occurred after the court ruled on the first motion to appoint a receiver and may constitute a “new fact” within the meaning of CCP section 1008.  The court will consider the evidence about that meeting, as provided in paragraph 53 of Kielty’s declaration, in its analysis of the third motion below. 

            Motion Does Not Comply with CCP Section 1008(b) In All Other Respects

In support of the renewed motion, attorney Thomas Kielty has submitted a lengthy declaration that includes a substantial amount of evidence not presented with his declaration for the first receivership motion.  For the most part, Kielty makes statements on information and belief based on his discussions with Plaintiff or his review of documents.  (See Kielty Decl. ¶¶ 11-52.)  Similarly, Plaintiff submits a new declaration that also appears to include some evidence that was not presented for the first motion.  However, in the motion and in these declarations, Plaintiff has not identified any of this evidence as “new” or “different” within the meaning of CCP section 1008. 

Furthermore, a renewal motion pursuant to CCP section 1008(b) is subject to the reasonable diligence requirement that applies to motions for reconsideration.  (See California Correctional Peace Officers Ass’n v. Virga (2010) 181 Cal.App.4th 30, 47.)  A party “may not make seriatim motions that seek the same relief” without complying with the reasonable diligence requirement.  (Id. at 45.)  “Without a diligence requirement the number of times a court could be required to reconsider its prior orders would be limited only by the ability of counsel to belatedly conjure up a legal theory different from those previously rejected, which is not much of a limitation.”  (Id. at 46.) 

Plaintiff does not satisfy this reasonable diligence requirement, except for Kielty’s description of the December 12 meeting.  In their declarations, neither Kielty nor Plaintiff provide any statement of reasons why the other evidence could not have been presented for the first motion with the exercise of reasonable diligence.  Based on the court’s review of the declarations, the court concludes that all other evidence concerns matters that were known to Plaintiff and Kielty, or should have been known with the exercise of reasonable diligence, in time to be submitted for hearing on the first motion.    

Plaintiff’s request for judicial notice similarly relates to matters that, with the exercise of reasonable diligence, could have been presented for the first motion.  Plaintiff does not show that the Covid-19 programs at issue were not in existence at the time the first motion was filed.  (RJN Exh. B-D.) 

In his declaration, attorney Kielty also describes correspondence that he had with the lender, Planet Home Lending, starting December 1, 2022.  (Kielty Decl. ¶¶ 2-10.)  Kielty states that he attached a copy of a “draft Declaration” that he submitted to Planet Home Lending.  (Id. ¶ 2.)  No such draft Declaration was attached to Kielty’s declaration or the motion.  However, a copy was attached to Kielty’s declaration filed January 9, 2023, for the second motion and has been reviewed by the court.  Plaintiff does not assert that Kielty’s description of his correspondence with Planet Home Lending is “new evidence” within the meaning of CCP section 1008 or that the correspondence with Planet Home Lending could not have occurred, with reasonable diligence, in time to be presented for the first motion.  Substantively, Planet Home Lending’s refusal to sign a declaration indicating Plaintiff would receive a more favorable interest rate were she an owner occupant does not support Plaintiff’s contention that a receiver would be effective in saving the property from foreclosure. 

Based on the foregoing, the motion does not comply with CCP section 1008(b) except for paragraph 53 of Kielty’s declaration.    

Analysis of Renewed Motion Based on Facts Concerning December 12, 2022, Meeting with Defendant

In his declaration, attorney Kielty describes the December 12 meeting with Defendant Moody as follows: “On or about December 12, 2022, I had about a 20 to 30-minute zoom meeting with Ms. Moody. Ms. Moody agreed to having the meeting recorded. Ms. Moody made it abundantly clear that she would never agree to have TOI reside on the property even if that was the only way to save the property from foreclosure. She also made numerous comments about her grave depression and mentioned that this included three (3) suicide attempts. She claimed one of the suicide attempts was directly caused by TOI and her husband.”  (Kielty Decl. ¶ 53.) The court notes that Plaintiff made similar allegations in the first motion, asserting that “Counsel for TOI suspects that MOODY may suffer from mental illness or other psycho-emotional disorders that interfere with her ability to take simple but crucial actions.”

It is unclear from the legal briefing for this renewed motion why Plaintiff contends this new evidence should change the court’s ruling on the request for a receivership.  Plaintiff does not discuss this new evidence in the “Application of Law to the Facts” part of her motion.  (See Mot. 9-10.)  In the notice, Plaintiff states only that Defendant’s “‘plans’ for the property will certainly guarantee foreclosure,” without elaboration.  (Mot. 2.) 

Plaintiff’s new evidence is not relevant to the court’s conclusion, for the first motion, that Plaintiff “does not adequately support her allegation of fraud against Moody.”  (11/15/22 Ruling at 3.)  The alleged statements at the December 12, 2022, meeting, even if made, do not pertain to the allegations of fraud related to the grant deed and mortgage. 

While not clearly stated in the renewed motion, Plaintiff’s new evidence concerning the December 12, 2022, meeting may respond either to (1) the court’s conclusion that Plaintiff did not show that a receivership is necessary to preserve any financial or other debtor rights Plaintiff may have related to the mortgage or the Property, or (2) the conclusion that Plaintiff did not adequately support her claim that appointment of a receiver would be effective in preserving the Property under the circumstances of this case.  (See 11/15/22 Ruling at 4-5.) 

            Plaintiff’s new evidence does not persuade the court to reach different conclusions.  With respect to Plaintiff’s financial or other debtor rights, the court already considered evidence that Defendant had claimed since June 2020 “she would obtain financing that would pay off the loan” but that “nothing has ever happened.”  (11/15/22 Ruling at 4-5, citing Davis Decl. ¶ 14.)  Inherent in such evidence was Defendant’s alleged inaction for a substantial period of time with respect to arrearages on the loan.  The new evidence about Defendant’s refusal to allow Plaintiff to reside at the Property “to save the property” is cumulative to evidence already considered.  The court also considered that “a receiver would not be able to compel Moody to obtain financing to pay off the loan” and “Plaintiff does not explain why monetary damages would be inadequate against Moody to the extent Plaintiff contends that Moody is legally obligated to pay off the loan.”  (Ibid.)  Assuming arguendo that Defendant made the statements attributed to her at the December 12 meeting, the factual circumstances are materially the same.  Plaintiff’s new evidence does not prove that Defendant could be compelled to obtain financing to payoff the loan or that monetary damages would be inadequate.  

            Plaintiff’s new evidence also does not prove that a receiver would be effective in preserving the Property under the circumstances of this case.  While Plaintiff believes a receiver could evict a tenant, allow her to reside in the Property, and obtain a loan modification at a favorable interest rate, that contention was already considered by the court for the first motion.  A receiver could conceivably evict tenants (after incurring the time and expense to do so) and allow Plaintiff to reside at the Property regardless of Defendant’s agreement to such actions.  However, even the proposition that a receiver could simply evict Overstreet has not been fully supported by Plaintiff.  Counsel for Plaintiff’s declaration in support of the motion states that “[e]ither Overstreet has not paid any rent or else he has paid rent to Moody who has not used those funds to pay to the mortgage.”  (Kielty Decl. ¶ 37.)  If Overstreet has in fact paid rent to Moody, Plaintiff has not shown how any unlawful detainer action filed by a receiver would be successful.  Defendant’s alleged statements at the December 12 meeting are irrelevant to this issue. 

            Kielty asserts that Defendant told him at the December 12 meeting that she suffers from depression, including suicide attempts.  If those statements were made, however, they do not change the court’s conclusion that Plaintiff does not prove that a receivership would be effective in preserving the Property.   

In the motion, Plaintiff also states that Defendant claimed at the December 12 meeting that tenant Overstreet “recently entered into a new lease agreement with her and paid $2,000 rent for December 2022.”   (Mot. 9.)  That statement is not verified in Kielty’s declaration and is not competent evidence that can be considered for a renewed motion pursuant to CCP section 1008.

Conclusion

            The motion is DENIED.