Opinion
E064064
05-12-2017
AVMGH II LIMITED PARTNERSHIP, Plaintiff and Respondent, v. ROBERT HOHN, Defendant and Appellant.
Law offices of Thomas Y. Barclay and Thomas Y. Barclay; Law Offices of Jeffrey A. Coleman and Jeffrey A. Coleman for Defendant and Appellant. Hart¦King, C. William Dahlin, and Boyd L. Hill for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIC1505764) OPINION APPEAL from the Superior Court of Riverside County. Daniel A. Ottolia, Judge. Dismissed. Law offices of Thomas Y. Barclay and Thomas Y. Barclay; Law Offices of Jeffrey A. Coleman and Jeffrey A. Coleman for Defendant and Appellant. Hart¦King, C. William Dahlin, and Boyd L. Hill for Plaintiff and Respondent.
Defendant and appellant, Robert Hohn, complained to departments of the Corona city government (the city) about allegedly illegal activities on property owned by plaintiff and respondent, AVMGH II Limited Partnership (AVMGH or the partnership). Robert Hohn is a limited partner of AVMGH, but does not have authority to act on its behalf. The city inspected the property, found numerous non-complying uses, and began the process of obtaining compliance. As a result, some businesses which had been paying rent to AVMGH relocated.
AVMGH sued Robert Hohn for breach of contract and interference with business relations. According to the complaint, Robert Hohn breached the limited partnership agreement by holding himself out as an authorized representative of the partnership in seeking to have the city inspect the property and then assisting in the inspections.
Robert Hohn filed a special motion to strike both causes of action under Code of Civil Procedure section 425.16 (section 425.16). The trial court concluded Robert Hohn's conduct was protected petitioning activity, but denied the motion on the ground AVMGH had established a likelihood of success on the merits.
Robert Hohn appealed.
I
FACTUAL BACKGROUND
A. The Property and the Partnership
Respondent AVMGH owns 144 acres at 1501 and 1601 Sherborn Street in Corona (the property). The partnership's name derives from the initials of the parents of the principal disputants, appellant Robert Hohn and his older brother, Bruce Hohn. Bruce Hohn manages the partnership. Robert Hohn is a limited partner, but has no managerial authority.
The background facts come from the declarations and exhibits the parties submitted in connection with appellant's anti-SLAPP motion.
The property is a vacant lot surrounded by excavation and industrial uses. According to Bruce Hohn, the lot is "devoid of vegetation or water, except for an approximate 30 acre 11 feet deep 'lake' that exists in a thirty foot deep depression created by prior sand and gravel mining located at the center rear of the property." Vulcan Materials, Inc. (Vulcan) has gravel mining operations on land to the north, and Robertson's Ready Mix operates a concrete mixing plant on land to the south.
The partnership allowed third parties limited use of the property in return for monthly rent—or "licensing fees," as the partnership designates the payments. According to Bruce Hohn, the partnership has allowed trucking, construction, and truck repair companies to park trucks, equipment, and trailers on the property since the 1970's. He says those uses were lawful when they began and remained lawful as pre-existing uses when the city revised its development ordinance in 2001. The partnership submitted eight agreements showing it had allowed third parties to park trucks, trailers, and equipment on the property and, in one case, to make concrete parking lot bumpers. Bruce Hohn said he had discussed those businesses with Robert Hohn, who was aware the income compensated Bruce Hohn for his work as the authorized representative of AVMGH partnerships.
The partnership had plans to regrade the property, so it could be put to use as an industrial building site. The partnership was in negotiations with a developer who would undertake a development review with the city. In addition, Vulcan had expressed interest in expanding its operations onto part of the property.
B. The Inspections
The city inspected activities on the property on three occasions between February and April 2015.
On February 20, 2015 staff from the city's Code Enforcement Division (the division) inspected 1601 Sherborn Street in response to a complaint. The code enforcement case sheet for the property lists Bruce Hohn as the owner and Robert Hohn as the complainant. Four days after the inspection, Marc Ilagan of the division notified Bruce Hohn and the partnership they found several violations of the municipal code, including concrete pipe manufacturing, truck storage, contractor's offices, rock crushing, operation of a car wash, use of the property for living purposes, and illegal dumping of various materials. Ilagan's letter informed the partnership of actions needed to correct the problems.
On February 27, 2015, after the first inspection by the division, Robert Hohn's attorney sent a letter to the fire marshal of the Corona Fire Department. The letter reported Robert Hohn had conducted an inspection of the property and found numerous violations related to the handling and maintenance of hazardous materials. The letter requested the fire marshal conduct its own inspection to ensure compliance.
On March 12, 2015, at Bruce Hohn's request, "city staff members from the Code Enforcement Department, the Fire Department, the Planning Department, and the Building Division, along with the city's environmental compliance coordinator and principal civil engineer" held a follow-up meeting to discuss the February 24 notice of violations. At that meeting, the city advised the partnership it would inspect the property again at the conclusion of the meeting and that "re-inspection would occur in the future to determine if any violations had been abated." Bruce Hohn was aware there would be future inspections and expressed no objection. Bruce Hohn "indicated that [he] would immediately begin abatement actions which would be apparent upon re-inspection of the Property."
The fire department and building division conducted the March 12, 2015 inspection. The code enforcement case sheet notes the fire inspector ordered one business to cease operations immediately due to a hazardous materials issue and the building inspector advised some electrical uses were not permitted. Marc Ilagan noted he would be conducting a re-inspection of the property.
On March 19, 2015, Bruce Hohn sent the city "copies of eviction notices to the business[es] at the location."
On April 28, 2015, representatives from the city and Riverside County inspected the property again. The inspection team included staff from the city's Fire Department, Building Division, and Public Works Department, and the Riverside County Hazardous Materials Branch. Inspectors "found numerous types of businesses conducting operations . . . in violation of [the Corona Municipal Code], including, but not limited to: concrete manufacturing, temporary batch plant, truck storage, trucking companies, contractors' offices (occupied and abandoned), and contractor's storage yards. Additional prohibited uses were observed, including use of the Property for living purposes (evidenced by trailers), discharge of unknown liquid from the trailer(s), storage of unknown chemicals, storage of containers of oil, and unmarked drums, tires, trash, unpermitted electrical structures, storage of abandoned, wrecked and dismantled vehicles and trucks, refuse and waste, truck and trailer repair, and washing and cleaning of trucks." They also observed a truck salvage business was "storing inoperable vehicles, allowing a sand bag company . . . to operate . . . on the premises, allowing people to live and occupy trailers and motorhomes on the premises, has constructed accessory buildings and is conducting an auto repair business all in violation of the Corona Municipal Code."
On June 11, 2015, the division sent a final notice of violation addressed to Bruce Hohn and the partnership. The notice letter sets out the details of all three inspections and the violations discussed above and demanded the partnership "immediately cease and desist and remove all business operations" noted at the April 28 inspection. The notice letter set a deadline of July 13, 2015 for compliance.
C. The Consequences
According to Bruce Hohn, the partnership subsequently lost income from businesses that had been operating on the property. He said "some businesses have left the property and are no longer pay[ing] licensing fees to AVMGH II. Titan Materials left the property, and AVMGH II no longer receives their $2,500 per month licensing fee. In addition, the concrete block company and the concrete manhole company found a different property . . . and have set up operations in that location, causing AVMGH II to lose $4,000 per month . . . Also, another trucking company, CCC Trucking left the property and is no longer paying its $2,500 per month licensing fee."
Bruce Hohn said these events have also damaged relations between the partnership and the city. He said they "have caused City officials to be at odds with AVMGH II at the precise time when AVMGH II is negotiating with developers and Vulcan for development of the AVMGH II Property and when AVMGH II will need to negotiate and deal with the City regarding development entitlements for each development project. I have had to spend extra time and money and hire consultants and legal counsel to meet with the City to resolve the issues created by Robert J. Hohn's unpermitted and wrongful actions and to put AVMGH II and the City back on a constructive path."
Respondent requests we take judicial notice of an email communication between appellant and the city prior to the actions which caused the filings in this matter. Due to the dismissal of this appeal, we decline to do so. --------
D. The Lawsuit
On May 14, 2015, the partnership sued Robert Hohn for breach of the AVMGH limited partnership agreement and for interfering with its business relationships with the companies that had been operating on the property.
Article 7.2 of the AVMGH II Limited Liability Partnership Agreement (the agreement) provides: "The Limited Partners shall take no part in the conduct or control of the Business and shall have no right or authority to act for or to bind the Partnership in any manner whatsoever. Any Partner who acts beyond the scope of the authority granted by this Agreement shall, in addition to any other remedy available to the Partnership or other Partners, be liable in damages to the Partnership and each other Partner for any loss or damages that they may incur or suffer as a consequence of such act."
Article 7.4 of the agreement provides: "The General Partner may terminate the interest of a Limited Partner and expel such Partner for . . . interfering in the management of the Limited Partnership affairs or by holding themselves out to others as having the power to act for or bind the Partnership . . . [or] [¶] . . . engaging in conduct which tends to bring the Partnership into disrepute."
1. Breach of contract claim
The partnership alleged Robert Hohn is a limited partner of AVMGH (which he does not contest) and breached articles 7.2 and 7.4 of the agreement "by holding himself out to the City of Corona as the authorized representative of AVMGH II . . . to induce City of Corona code enforcement officers to drive off individuals and businesses which were licensed by AVMGH II to park their vehicles, equipment and trailers on the vacant portion of the AVMGH II Property . . . [and as a means of] allow[ing] and encourag[ing] the City of Corona code enforcement officers to conduct an unauthorized warrantless inspection and wrongful citation of those individuals and business[es] licensed by AVMGH II to occupy the AVMGH II Property."
The partnership claimed as a proximate cause of the breach, it "lost licensing fees that would have been earned from the use of the AVMGH II Property by those individuals and businesses who withdrew from the property as a result of the improperly obtained notices of violation." It also alleged it is "entitled to expel Defendant Robert J. Hohn for interfering with the management of AVMGH II affairs and for holding himself out to others as having the power to act for or bind AVMGH II, pursuant to Section 7.4 (a) of the [agreement]."
2. Interference with business relationship claim
The partnership alleged it had ongoing license agreements with businesses allowing them to use the property, and Robert Hohn "intentionally interfered with those license agreements and business relationships by initiating a complaint with the City of Corona and by inviting the City of Corona code enforcement officers onto the AVMGH II Property for a warrantless inspection, while at the same time representing himself to be an authorized representative of AVMGH II . . . with the intent to harm AVMGH II financially and to induce those [businesses to] cease[] to use [the property] and [to cease paying] license fees to AVMGH II." The partnership sought compensatory damages and also sought punitive damages on the ground Robert Hohn acted maliciously.
3. Robert Hohn's anti-SLAPP motion
On July 12, 2015, Robert Hohn responded by filing a motion to strike the complaint under section 425.16. He contended reporting violations to the city and encouraging it to enforce the law is protected activity even if it injured the partnership. He also contended the partnership could not demonstrate a likelihood of prevailing on the merits because—among other reasons—it could not present evidence showing his conduct caused the injury.
In support of his motion Robert Hohn submitted letters to Bruce Hohn and the partnership from the division, which set out the city's inspections and findings as we described them in part I.B.
4. AVMGH's evidence in opposition
In opposition to the motion, the partnership contended the focus of the complaint was the fact that Robert Hohn held himself out as an authorized representative of the partnership in order to obtain inspections and then to gain entry to the property by inspectors. The partnership argued these acts breached the agreement and caused the injury.
To support its allegations, the partnership submitted the February 27, 2015 letter from Robert Hohn's attorney to the fire marshal for the City of Corona Fire Department. The letter reports Robert Hohn—who once conducted inspections for a fire department—and someone described as "another qualified individual" inspected the property on December 31, 2014 and found several apparent code violations related to the storage and clean-up of hazardous materials. It described the property as "[o]wned by several entities, including a trust," described Robert Hohn as a person who "has an interest in those entities as an owner and beneficiary," and said Robert Hohn "is concerned about the Property's ongoing maintenance and conformity to the law." The letter requested, on Robert Hohn's behalf, that the fire department inspect the property to ensure the violations would be rectified.
Bruce Hohn and the partnership also point to Robert Hohn's conduct at the April 28 inspection. According to Dennis Beck, who was working on the property the day of the April 28 inspection, "The City official that appeared to be in charge introduced to me a mostly bald-headed gentleman . . . identified as Robert Hohn. The City official told me that Robert Hohn was the 'authorized representative' of the property owner. The person identified as Robert Hohn nodded his head in approval of that statement. The City officials then proceeded to go around accompanied by Robert Hohn to different businesses located on the AVMGH II property. The City officials inspected and issued notices to various businesses." The trial court excluded Dennis Beck's declaration as hearsay.
In response, Robert Hohn admitted he was present for the April 28 inspection, but denied he held himself out as the representative of the partnership. He denied hearing a city official say he was a representative of the partnership and also denied he had nodded in agreement with that statement. He said, "I have no idea what anyone from the City of Corona told Mr. Beck and I was not in the vicinity of any conversation between anyone from the City of Corona and Mr. Beck."
5. The trial court ruling
The trial court ruled Robert Hohn's conduct was protected under the anti-SLAPP statute, but denied the motion based on its finding the partnership had shown a likelihood of prevailing on the merits.
On the first prong, the court found Robert Hohn "is being sued for a protected activity under C.C.P. section 425.16 paragraph (b)(1). His complaint to the city, which plaintiff claims are untrue, extortion, or a breach of contract, fit within the statutory definition of any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law."
On the second prong, the court found the partnership "present[ed] evidence that the defendant was not the owner of the property, or authorized on behalf of the partnership to act on its behalf. The opposition also sufficiently points to the provisions in the limited partnership agreement which prohibit the defendant from dealing with third parties, taking part in partnership business, acting for the partnership in any manner, interfering in the management of the partnership affairs, engaging in conduct which tends to bring the partnership into disrepute, engaging in conduct which tends to subject the partnership to legal proceedings." The court held "[c]ontacting the City to expose the partnership to investigation and incurring the cost of defending itself may be seen as a breach of any or all of the partnership rules that I just enumerated." The court also found the "letter from Robert Hohn's attorney to the City is certainly a claim of ownership interest and implies that, as an owner, Robert Hohn has the authority an owner would have." Accordingly, the trial court denied the motion to strike.
II
REQUEST FOR DISMISSAL
After this matter had been assigned to chambers and we had prepared our tentative opinion, appellant filed a request for dismissal notifying us the respondent had filed a dismissal, with prejudice, of the case in the Superior Court three weeks earlier.
An appellant may not dismiss an appeal as a matter of right. (Huschke v. Slater (2008) 168 Cal.App.4th 1153, 1160, 1163 [imposing $6,000 sanctions on attorney for unreasonable delay in notifying appellate court that parties had settled and dismissed the underlying case].) California Rules of Court, rule 8.244(c)(2) provides that upon receiving a request to dismiss, "the court may dismiss the appeal and direct immediate issuance of the remittitur." (Italics added.) Here, we exercise our discretion to grant appellant's request and direct the remittitur be issued immediately.
III
DISPOSITION
We dismiss the appeal and direct the clerk of this court to issue the remittitur immediately. The parties will bear their own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: RAMIREZ
P. J. FIELDS
J.