Judge Salvatore Sirna, Case Number: 23PSCV02788, Date: 2024-04-25 Tentative Ruling

Judge: Salvatore Sirna, Case: 23PSCV02788, Date: 2024-04-25 Tentative Ruling

Case Number: 23PSCV02788 Hearing Date: April 25, 2024 Dept: G

Petitioner City of Azusa’s Motion to Appoint a Receiver

Respondent: Defendant Flagstar Bank, N.A.

TENTATIVE RULING

Petitioner City of Azusa’s Motion to Appoint a Receiver is CONTINUED to a date to be determined in Department G (Pomona).

Furthermore, Petitioner City of Azusa is ordered to file a supplemental declaration establishing its compliance with the posting requirement of Health and Safety Code section 17980.7, subdivision (c) within nine (9) court days of the next hearing on the present motion.

BACKGROUND

This is a nuisance action brought by the City of Azusa (the City) to appoint a receiver. The subject of this action is a residential property in Azusa that allegedly has a history of substandard conditions in violation of the Azusa Municipal Code. Starting in October 2020, the City first issued a notice of violation with regards to the Azusa property. After issuing multiple notices of violation and five administrative citation fines, the City declared the Azusa property a public nuisance at a hearing on March 24, 2022.

On September 11, 2023, the City filed a complaint for nuisance and petition for the appointment of receiver against Respondents Thomas Ybarra; Quicken Loans, Inc. (Quicken Loans); JPMorgan Chase Bank, National Association (Chase Bank); and Does 1-25.

On October 3, 2023, the City amended the petition to replace Doe 1 with Respondent Flagstar Bank, National Association (Flagstar Bank).

On January 25, 2024, the City amended the petition to replace Doe 2 with Respondent Cavalry SPV I, LLC (Cavalry).

On February 13, 2024, the City filed the present motion. On February 14, the City dismissed Quicken Loans from the present action.

A hearing on the present petition is set for April 25, 2024, along with a case management conference, OSC Re: Failure to File Proof of Service, and OSC Re: Default.

REQUEST FOR JUDICIAL NOTICE

The City’s request for the court to take judicial notice of provisions in the California Building Code and Azusa Municipal Code are GRANTED. (Evid. Code, § 452, subd. (a), (b).)

ANALYSIS

The City petitions the court for the appointment of GS Strategies, Inc. as receiver for the Azusa property. For the following reasons, the court CONTINUES the City’s motion.

Pursuant to Health and Safety Code section 17980.7, the City may petition the court for the appointment of a receiver in the following manner:

“In its petition to the court, the enforcement agency, tenant, or tenant association or organization shall include proof that notice of the petition was posted in a prominent place on the substandard building and mailed first-class mail to all persons with a recorded interest in the real property upon which the substandard building exists not less than three days prior to filing the petition. The petition shall be served on the owner pursuant to Article 3 (commencing with Section 415.10) of Chapter 4 of Title 5 of Part 2 of the Code of Civil Procedure.” (Health & Safety Code, § 17980.7, subd. (c) (emphasis added).)

In this case, while the City’s petition states the City “has served all parties with a recorded interest in the Subject Property with a three-day notice,” the City’s petition fails to include any proof that notice of the petition was posted and properly served at least three days prior to the filing of the petition. (Complaint, Prayer, ¶ 10.) In a declaration filed in support of the present motion, the City’s counsel does state that the three-day notice of the petition was sent to Ybarra, Flagstar Bank, and Chase Bank on August 31, 2023, via certified mail. (Gunzel Decl., ¶ 7.) But while a copy of the notice itself states “Via Certified U.S. Mail and Posting,” counsel’s declaration fails to state when, where, and if the notice was actually posted. (Gunzel Decl., ¶ 7, Ex. E.)

Accordingly, the court CONTINUES the hearing on the present motion. The City is ordered to file a supplemental declaration establishing its compliance with the posting requirement of Health and Safety Code section 17980.7, subdivision (c) within nine (9) court days of the next hearing on the present motion.