Judge Robert S. Draper, Case 21STCV21946 2023-05-08 Tentative Ruling

Judge: Robert S. Draper, Case: 21STCV21946, Date: 2023-05-08 Tentative Ruling

Case Number: 21STCV21946 Hearing Date: May 8, 2023 Dept: 78

Superior Court of California

County of Los Angeles

Department 78

CARMEL NUNGARAY,

Plaintiff,

vs.

SEBERIANO NUNGARAY, et al.,

Defendants. Case No: 21STCV21946

Hearing Date: May 8, 2023

[TENTATIVE] RULING RE:

PLAINTIFF CARMEL NUNGARAY’S MOTION TO COMPEL INSPECTION OF REAL PROPERTY.

Plaintiff Carmel Nungaray’s Motion to Compel Inspection of Real Property is GRANTED.

Defendants are ordered to schedule an inspection that will occur within 15 days after the date of this order.

The request for sanctions is DENIED.

Moving party is ordered to provide notice and to file proof of service of such notice within five court days after the date of this order.

FACTUAL BACKGROUND

This is an action for a family dispute over real property. The Complaint alleges as follows.

In about 1994, Defendants Seberiano Nungaray (“Seberiano”) and Abigail Seberiano (“Abigail” and together with Seberiano, “Parents”) purchased real property on Fellowship Street in La Puente (the “Subject Property”). (Compl. ¶ 10.) The Subject Property was purchased with the understanding that Parents’ daughter, Plaintiff Carmel Nungaray (“Plaintiff”) would become the owner. (Ibid.)

Parents struggled financially, and Plaintiff frequently paid for the family’s previous residence. (Compl. ¶ 12.) In July 1995, Parents decided to transfer the Subject Property to Plaintiff with the understanding that Plaintiff would pay the mortgage payments. (Compl. ¶ 13.) On July 25, 1995, Parents recorded a Grant Deed (the “Deed”) transferring title of the Subject Property from Parents to Plaintiff, as a sole owner. (Compl. ¶ 14.) From that date until 2006, all mortgage payments were made from a joint bank account shared by Parents and Plaintiff, into which Plaintiff frequently made deposits. (Compl. ¶ 15.) In 2001 or 2002, Parents began paying rent to Plaintiff. (Compl. ¶ 16.)

In 2006, Plaintiff’s sister, Defendant Maria Nungaray (“Maria”, and together with Parents, “Defendants”) argued that Parents and Plaintiff should no longer share a bank account, as it would cause Parents to lose their government benefits. (Compl. ¶ 17.) Plaintiff continued to make mortgage payments on the Subject Property, and in 2012, began making the payments directly to the mortgage lender. (Compl. ¶ 18.)

In September 2016, Plaintiff allowed her brother, Defendant Hugo Nungaray (“Hugo”) to stay in the Subject Property. (Compl. ¶ 20.) Hugo and Maria began to harass Plaintiff, including trying to force Plaintiff to sign legal documents against her will, and taking Parents to Las Vegas. (Compl. ¶ 23.) In 2019, Maria obtained a power of attorney for the affairs of Seberiano, who was suffering from dementia at that time. (Compl. ¶ 24.)

In 2019, Plaintiff abandoned the Subject Property due to the constant harassment by Maria and Hugo. (Compl. ¶ 26.) Hugo has remained living in the Subject Property without paying rent and has begun conducting construction without Plaintiff’s permission. (Compl. ¶ 27.) Hugo will not vacate the property, despite Plaintiff’s requests. (Compl. ¶ 29.)

PROCEDURAL HISTORY

On June 11, 2021, Plaintiff filed the Complaint asserting three causes of action:

1. Quiet Title;

2. Declaratory Relief; and

3. Accounting

On September 30, 2021, Plaintiff filed the operative First Amended Complaint asserting the same causes of action and adding a fourth cause for Conversion.

On March 24, 2022, Defendants filed an Answer.

Also on March 24, 2022, Seberiano filed the Cross-Complaint asserting five causes of action:

1. Resulting Trust;

2. Constructive Trust;

3. Breach of Fiduciary Duty;

4. Quiet Title; and

5. Financial Elder Abuse.

On December 5, 2022, Plaintiff filed a Notice of Lis Pendens as to the Subject Property.

On February 10, 2023, Plaintiff filed the instant Motion to Compel the Inspection of Real Property.

As of May 3, 2023, no Opposition has been filed.

DISCUSSION

I. MOTION TO COMPEL INSPECTION

Plaintiff moves to compel inspection of real property pursuant to Code of Civil Procedure section 2031.300.

“Any party may obtain discovery within the scope delimited by¿Chapter¿2 (commencing with¿Section 2017.010), and subject to the restrictions set forth in Chapter 5 (commencing with¿Section 2019.010), by inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information in the possession, custody, or control of any other party to the action.” (CCP § 2031.010(a).)

“A party may demand that any other party produce and permit the party making the demand, or someone acting on¿the demanding party's behalf, to inspect and to photograph, test, or sample any tangible things that are in the possession, custody, or control of the party on whom the demand is made.” (CCP § 2031.010(c).)

Here, Plaintiff seeks to inspect the Subject Property.

On October 13, 2022, Plaintiff served Defendants with the Demand for Inspection of Real Property as to the Subject Property. (Gastelum Decl. ¶ 2.) Plaintiff scheduled the date for inspection for December 9, 2022. (Ibid.; Exh. A.)

On December 6, 2022, Plaintiff’s Counsel reached out to Defendants’ Counsel to confirm the December 9 inspection. (Id. ¶ 3.) Defendants’ Counsel responded that he was not aware of the inspection and requested that the date be moved back a week so that he could confirm the date with Defendants. (Ibid; Exh. B.)

Between December 9, 2022, and December 16, 2022, Plaintiff’s Counsel repeatedly reached out to Defendants’ Counsel to inquire about the new date. (Id. ¶ 4.) On December 16, 2022, Defendants’ Counsel told Plaintiff’s Counsel that he was working on deadline but would call Plaintiff’s Counsel to discuss. (Ibid.) Plaintiff’s Counsel never received a call. (Ibid.) Plaintiff’s Counsel reached out again on January 3, 2023, but has not received a response, precipitating the instant motion. (Id. ¶ 5.)

The Court finds that Plaintiff properly requested inspection of the Subject Property, and Defendants have failed to comply without cause. Accordingly, Plaintiff’s Motion to Compel Inspection of Real Property is GRANTED.

Plaintiff also seeks monetary sanctions pursuant to Code of Civil Procedure Sections 2031.300(c) and 2023.030(a).

Section 2031.300(c) does not apply because this motion was not opposed. Section 2023.030(a) does not alone allow for the imposition of sanctions without reference to another provision of the Discovery Act.

For this reason, the request for sanctions is denied.

DATED: May 8, 2023

______________________

Hon. Jill T. Feeney

Judge of the Superior Court