Judge: Stephen I. Goorvitch, Case: 21STCV46704, Date: 2023-08-07 Tentative Ruling
Case Number: 21STCV46704 Hearing Date: August 14, 2023 Dept: 39
People
v. Tracy C. Joy
Case
No. 21STCV46704
Motion
for Summary Judgment
BACKGROUND
The
People of the State of California, by and through the City Attorney’s Office
(the “City” or “Plaintiff”) filed this complaint for abatement and injunction
under Civil Code section 3479, et seq., and Health and Safety Code section
11570, et seq. against Defendant Tracy C. Joy (“Joy” or “Defendant”). The City alleges that there is a “persistent
narcotics nuisance” emanating from a single-family house located at 4307
Westlawn Avenue in Los Angeles, California 90066 (the “Subject Property”). Now, the City moves for summary judgment,
which Defendant opposes. The motion is
denied, as the dispositive issues must be resolved at trial.
FACTUAL BACKGROUND
A. The City’s Evidence
Defendant
has resided at the Subject Property since 2005.
(Defendant’s Response to Plaintiff’s Separate Statement, ¶ 4.) On July 28, 2021, officers of the Los Angeles
Police Department (the “LAPD”) conducted a “buy-bust operation.” (Declaration of Christopher Walters, ¶ 3.) The LAPD used a confidential informant (the
“C.I.”) and searched him to ensure that he had no narcotics. (Id., ¶ 5.)
The LAPD equipped the C.I. with an electronic video and audio monitoring
device. (Ibid.)
The
LAPD gave the C.I. a quantity of United States currency and directed him to try
to buy narcotics from someone at the Subject Property. (Ibid.)
The C.I. approached two men standing on the sidewalk in front of the
garage of the Subject Property.
(Ibid.) Then, Joy exited the
garage and spoke to the C.I.
(Ibid.) After speaking with the
C.I., Joy walked back inside the residence while the C.I. waited outside near
the garage. (Ibid.) Joy returned and spoke to the C.I. (Ibid.)
The C.I. walked back to the officers and handed them a plastic bindle
containing a substance that appeared to be crystal methamphetamine. (Ibid.)
LAPD
officers arrested Joy. (Id., ¶ 8.) Officer Walter recovered multiple access
cards in other people’s names and $228 in cash from Joy’s front pocket. (Ibid.)
Another officer recovered a plastic bindle containing a white powder
from the open bed of the truck parked in front of the garage of the Subject
Property. (Ibid.)
Following
Joy’s arrest, the LAPD obtained a search warrant for the Subject Property,
which was executed on August 10, 2021.
(Id., ¶ 9.) During a detailed
search of the house, officers recovered various quantities of substances that
appeared to be crystal methamphetamine contained in several Ziplock bags and
bindles loosely scattered on the dining room table. (Id., ¶ 13.)
Officers recovered a scale from the kitchen table. (Ibid.)
Officers observed one man—later identified as Robert Stewart—standing at
the dining room table, where he appeared to be weighing or cutting
narcotics. (Id., ¶ 10.) The scale had a white powder residue on
it. (Id., Exh. #2.) Officers also recovered substances appearing
to be crystal methamphetamine from the ground near the dining room table, as
well as the ground in the hallway directly facing the table. (Id., ¶ 13.)
Officers recovered a .22 caliber pistol and ammunition in the northwest
bedroom, as well as a substance appearing to be crystal methamphetamine from
the living room. (Id., ¶ 14.) Officers recovered a box of baggies from the
southwest bedroom (not the kitchen).
(Ibid.)
Officer
Walters prepared two reports. (Id., ¶
19.) The police report from July 28,
2021, is DR Number 21-14-15749. (Ibid.) The police report from August 10, 2021, is DR
Number 21-14-00081. (Ibid.) The substance recovered on July 28, 2021,
weighed 1.31 grams and contained methamphetamine. (Declaration of Bethany Muro, ¶¶ 3-6 &
Exh. #13.) The substances recovered on
August 10, 2021, weighed 76.68 grams and contained methamphetamine. (Declaration of Milena Srbova, ¶¶ 3-6 &
Exh. #15.)
Prior
to these arrests, the LAPD had been monitoring the Subject Property. (Declaration of Hector Aceves, ¶ 7.) One officer has observed “defendant Tracy Joy
congregating with boisterous groups at and around the Property; groups drinking
alcohol in front of the garage (which faces Louis Avenue); and individuals
hanging out in parked cars in front of the Property with no apparent reason for
being there.” (Ibid.) The officer has also observed “motorcycle
parts, trash, and other debris puling up in front of the garage and the
sidewalk and street abutting the Property.”
(Ibid.) The declaration does not
state during which time period he observed these issues, i.e., before or after
August 10, 2021.
B. Defendant’s Evidence
Defendant does
not advance sufficient evidence to give rise to a triable issue on any of these
facts. Instead, Defendant proffers a
declaration stating: “My last incident with LAPD was on August 10, 2021. I have participated in the criminal court
process, adhered to the terms of my plea and am doing community service. My home is clean, tidy, and not a
nuisance.” (Declaration of Tracy C. Joy,
¶ 6.)
C. The Court’s Finding
Based upon the
foregoing, the Court found that “there was a nuisance on the Subject Property
on or before August 10, 2021.” (Court’s
Minute Order, dated February 10, 2023, p. 5.)
However, the Court did not consider some of the City’s evidence. At the initial hearing on this motion, the
Court did not consider the video/audio of the buy-bust, which was lodged as
Exhibit #10, or the transcript, which was lodged as Exhibit #11. (See id., pp. 3-4.) The Court found that these exhibits were not
properly authenticated. (Ibid.) The Court also did not consider certain
evidence accompanying the City’s reply brief.
(See id., p. 5.) The Court
continued the hearing; permitted the City to resolve the problems with its
evidence; and afforded Defendant an opportunity to respond to the additional
evidence in writing.
D. The City’s Additional Evidence
The
City properly authenticated the buy-bust video, which is Exhibit #5 to the
City’s supplemental appendix of evidence.
(See Declaration of David Nick, ¶ 5; Declaration of Joseph L. Gonzalez,
¶¶ 5-6.) The City properly authenticated
the transcript of the video/audio, though the audio recording is the evidence
in the case. (See Declaration of Joseph
L. Gonzalez, ¶ 7.) This evidence further supports the Court’s finding that
there is no triable issue whether there was a nuisance on the property as of
August 10, 2021.
PROCEDURAL HISTORY
The
City filed this action on December 22, 2021, naming Tracy Joy as a
defendant. The City filed a motion for
summary judgment on November 21, 2022.
The Court held a hearing on February 10, 2023, but was not able to
resolve the motion on that date. The
City did not properly authenticate certain evidence; relied on certain
declarations lacking foundation; and advanced new evidence with the reply brief,
depriving Defendant an opportunity to respond in writing. (See Court’s Minute Order, dated February 10,
2023.) More important, the City did not
address a critical issue: Whether the Court may order closure of a property if
the owner is not named as a defendant in the action. Therefore, the Court continued the hearing
and authorized the parties to file supplemental briefing. The parties also continued to engage in
settlement discussions. Initially, the
parties believe they had settled this case.
(See Defendant’s Sur-Reply Brief, filed on April 5, 2023. Then, on June 12, 2023, the parties informed
the Court that they could not resolve the case.
Therefore, the Court proceeds with the hearing on the pending
motion.
EVIDENTIARY ISSUES
As
discussed, the City initially did not properly authenticate the video/audio
recording of the buy-bust, but corrected the issue in the supplemental
pleadings. Regardless, the Court found
that there was a nuisance as of August 1, 2021, in the absence of this
evidence.
The City proffers
the police reports from July 28, 2021, and August 10, 2021, which are DR Number
21-14-15749 and DR Number 21-14-00081, respectively. The Court will not consider any hearsay,
e.g., the summaries of any conversations, in these reports. Rather, the Court will consider these reports
for only two purposes. First, the Court
considers these reports as a summary of what contraband the officers recovered
and where it was located (though this is duplicative of Officer Walters’
declaration). This is permissible under
Evidence Code section 1280. (See Rupf v.
Van (2000) 85 Cal.App.4th 411, 430 fn. 6; see also Coe v. City of San Diego
(2016) 3 Cal.App.5th 772, 786-788.)
Second, the Court will consider the two reports for purposes of
chain-of-custody with respect to the narcotics, since the criminalists’ test
results are linked to the report numbers.
The Court will not consider any other police reports in this matter
absent good cause.
Finally,
the City seeks to rely on declarations from police officers stating that there
have been complaints about the Subject Property. These reports are hearsay with respect to the
truth of the matters asserted therein, e.g., that the Subject Property is a
nuisance. The City did not provide
declarations from the community members who observed the issues, which the
Court could have considered.
LEGAL STANDARD
“[T]he party moving for summary judgment bears the
burden of persuasion that there is no triable issue of material fact and that
he is entitled to judgment as a matter of law[.] There is a triable issue of
material fact if, and only if, the evidence would allow a reasonable trier of
fact to find the underlying fact in favor of the party opposing the motion in
accordance with the applicable standard of proof.” (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “[T]he party
moving for summary judgment bears an initial burden of production to make a
prima facie showing of the nonexistence of any triable issue of material fact;
if he carries his burden of production, he causes a shift, and the opposing
party is then subjected to a burden of production of his
own to make a prima facie showing of the existence of a triable issue of
material fact.” (Ibid.)
“A party may
move for summary adjudication as to one or more causes of action within an
action, one or more affirmative defenses, one or more claims for damages, or
one or more issues of duty, if the party contends that the cause of action has
no merit, that there is no affirmative defense to the cause of action, that
there is no merit to an affirmative defense as to any cause of action, that
there is no merit to a claim for damages, as specified in Section 3294 of the
Civil Code, or that one or more defendants either owed or did not owe a duty to
the plaintiff or plaintiffs.” (Code Civ.
Proc., § 437c, subd. (f)(1).)
DISCUSSION
The
City’s evidence establishes that there was a nuisance on the Subject Property
on and before August 10, 2021. However,
there is a triable issue whether the nuisance is continuing, i.e., whether
Defendant is engaged in ongoing conduct that justifies injunctive relief.
The
City relies on a declaration of LAPD Detective Joshua Ordonez, who states that
he conducted surveillance of the property in October, November, and December
2022. (See Declaration of Joshua
Ordonez, ¶ 6.) On October 18, 2022,
Detective Ordonez observed “heavy foot traffic to and from the location and
observed numerous people gathered around the driveway of the Property’s
detached garage.” (Id., ¶ 10.) The property has “a make-shift wooden wall”
that separates the driveway from the sidewalk.
(Ibid.) Detective Ordonez
observed a woman later identified as Alexandria Rodriguez stop at the wall and
talk to someone on the other side of the wall (i.e., on the property). (Id., ¶ 13.)
Then, she rode her bicycle a few feet eastbound, and a man later
identified as Mario Lara Jiminez exited the property from a doorway in the
wooden driveway wall. (Id., ¶¶ 13-14.) Jimenez walked to the rear passenger door of
a van parked in front of the property, where Rodriguez met him. (Id., ¶ 15.)
The two talked, and Rodriguez handed Jiminez as unknown item. (Id., ¶ 16.)
Jiminez accepted the item and handed Rodriguez something in return. (Ibid.)
Detective Ordonez believes that this was a hand-to-hand drug
exchange. (Ibid.)
On
November 16, 2022, Detective Ordonez observed Mario Lara Jiminez and a man
“engage in a quick hand-to-hand exchange of unknown items” near Jiminez’s van,
which was parked at the property. (Id.,
¶ 24.) Then, Detective Ordonez observed
a woman walk to the van, enter the van, and close the door behind her. (Id., ¶ 26.)
She exited the vehicle about five minutes later. (Ibid.)
Afterwards, Mario Lara Jiminez exited the vehicle, got onto an electric
bicycle, and rode away. (Id., ¶
27.) Jiminez rode to an apartment
building, retrieved an Amazon box that had just been delivered, and return to
Defendant’s house, where he entered through the doorway of the driveway
wall. (Id., ¶¶ 28-29.) Detective Ordonez observed Defendant at the
property on that date. (Id., ¶¶ 30-31.)
On December 12,
2022, Detective Ordonez observed Defendant at the property, and Mario Lara
Jiminez in a van outside the property.
(Id., ¶¶ 35-36.) Defendant exited
the property from the doorway of the driveway wall and spoke to different
people who appeared to be loitering outside his residence. (Id., ¶ 35.)
Defendant then walked back onto his property through the driveway
wall. (Ibid.) Then, A man later identified as Dwight Krantz
Bergeron approach the van and hand Jiminez “a handful of U.S. currency
bills.” (Id., ¶ 41.) Jiminez accepted the bills and handed the man
an unknown substance, which he placed in the left pocket of his jacket. (Ibid.)
Bergeron was arrested, and the substance was recovered. (Id., ¶¶ 44, 46.) The substance was tested, and it contained
fentanyl and methamphetamine.
(Declaration of Janne Cieslak, ¶¶ 3-6 & Exh. A.) The Court does not rely on any hearsay
statements contained in the declaration of Detective Ordonez.
The City argues
that these facts demonstrate narcotics transactions are occurring at the
property, and it matters not whether Defendant was personally involved because
“a building constitutes a nuisance even when a third party conducts the
activity.” (Plaintiff’s Sur-Reply in
Support of Motion for Summary Judgment, p. 2:24-25.) The Court assumes without deciding that the
City is correct that there are narcotics sales by third parties at the property,
which constitutes a nuisance.
Nevertheless, the Court must deny this motion because the City did not
name the owner of the property as a defendant in this action. In fact, Defendant is not the owner; he is
only a tenant. The owner of the property
is a trust; the prior trustee was the Arden Trust Company; and the current
trustee is Bryan Broomall. (See
Defendant’s Request for Judicial Notice, Exh. #1.) Because the owner is not a party, it would be
unconstitutional for the Court to order any remedy against the property itself,
e.g., a closure order. It is
unconstitutional to deprive any person of life, liberty, or property without
due process of law. Due process required
the City to name the trustee as a defendant in this action. The City failed to do so.
In the
alternative, the City argues that Defendant constitutes the nuisance. The City’s evidence satisfies its burden of
establishing that Defendant himself is dealing drugs or permitting others to
deal drugs on his property. This shifts
the burden to Defendant to proffer sufficient evidence to give rise to a
triable issue. Defendant relies on his
own declaration in which he states that he has not been involved in narcotics
activities since August 10, 2021. (Id.,
¶ 4.) Defendant states that Mario
Jiminez does not live with him and is not welcome in his home. (Id., ¶ 5.)
Defendant states that Mario Jimenez is a neighbor who often parks his
van in front of Defendant’s home. (Id.,
¶ 3.) Finally, Defendant disputes
Detective Ordonez’s account that Jiminez’s van was parked in front of
Defendant’s house on the dates in question.
(Ibid.) Defendant states that the
photographs show Jiminez’s van was parked in front of someone else’s house on
the dates in question. (Ibid.) The Court cannot resolve the issue on summary
judgment because the Court is not permitted to weigh credibility. Moreover, even assuming Defendant ceased his
illegal activities after August 10, 2021, there is a triable issue whether he
did so in good faith or whether he may resume his narcotics sales once this
case has concluded. “[W]here the
injunction is sought solely to prevent recurrence of proscribed conduct which
has, in good faith been discontinued, there is no equitable reason for an
injunction.” (People v. National
Association of Realtors (1981) 120 Cal.App.3d 459, 476.) However, mere cessation of illegal conduct
during a lawsuit does not preclude an injunction enjoining Defendant from residing
at the property. (See Aguilar v. Avis
Rent A Car System, Inc (1999) 21 Cal.4th 121, 132-133.) These issues can only be resolved at
trial.
CONCLUSION AND ORDER
The City raises two
separate theories. First, the City
argues that the property itself constitutes a nuisance because third parties
are selling drugs at the property.
Second, the City argues that Defendant constitutes a nuisance by selling
drugs or allowing others to do so at his property. However, the City did not name the owner of
the property as a defendant in this action, and there is a triable issue
whether Defendant is selling drugs or allowing others to do so. The City attempts to overcome this problem by
conflating its two theories, i.e., arguing that because the property is a
nuisance, the Court should issue a stay away order against Defendant. But there is a triable issue whether
Defendant is creating the nuisance. Simply,
the City seeks a remedy against Defendant based upon drug dealing by third
parties at the property when he is not the owner and there is a triable issue
whether he allowed the drug dealing to occur.
If the City seeks a closure order against the property, it must name the
owner as a defendant in this action. If
the City seeks a stay away order against Defendant, it must establish that there
is no dispute he sold drugs at the property or knowingly permitted others to do
so. The City does neither. Therefore, the Court must deny summary
judgment and resolve the issues at trial.
Based upon the
foregoing, the Court orders as follows:
1. The Court denies the City’s motion for
summary judgment.
2. The City shall file a notice on or
before August 28, 2023, informing the Court whether it intends to name the
trust as a defendant or whether it intends to proceed solely against Defendant
to obtain an injunction enjoining him from entering or occupying the property.
3. The Court continues the trial setting
conference to September 6, 2023, at 8:30 a.m.
4. The City shall provide notice and file
proof of such with the Court.