Opinion
E066417
10-25-2018
NATHAN D. LAMOURE, Plaintiff and Appellant, v. THE BANK OF NEW YORK MELLON, as Trustee etc., et al., Defendants and Respondents.
Nathan D. LaMoure, in pro. per., for Plaintiff and Appellant. Severson & Werson, Jan T. Chilton and Kerry W. Franich for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CIVDS1402759) OPINION APPEAL from the Superior Court of San Bernardino County. Brian S. McCarville, Judge. Affirmed. Nathan D. LaMoure, in pro. per., for Plaintiff and Appellant. Severson & Werson, Jan T. Chilton and Kerry W. Franich for Defendants and Respondents.
Plaintiff and appellant Nathan D. LaMoure appeals the grant of summary judgment in favor of defendants and respondents The Bank of New York Mellon fka The Bank of New York, as Trustee for the Certificate Holders CWABS, Inc., Asset-Backed Securities (BONY) and Bank of America N.A., successor by merger to BAC Home Loans Servicing, L.P. (BAC). LaMoure filed suit against BONY insisting that he stored numerous pieces of art, valued at $25,000 or more (the Art), at Dale Grinager's home located in Morongo Valley (the Home). BONY took possession of the Home after a foreclosure sale. The Art was missing.
LaMoure claims on appeal that there were triable issues of fact as to his causes of action of trespass and conversion. He also contends the trial court erred by failing to rule on his evidentiary objections.
We conclude the motion for summary judgment (the Motion) was properly granted.
FACTUAL AND PROCEDURAL HISTORY
A. STATEMENT OF FACTS
The following facts are taken from the undisputed and disputed material facts filed in support of the Motion. BONY foreclosed and obtained ownership of the Home on February 25, 2013. Grinager, the former owner, remained in the Home upon foreclosure. BONY brought an unlawful detainer action against Grinager and took possession of the Home on March 12, 2014. Grinager released all of the personal property at the Home to Donald Brake before BONY took possession of the Home. LaMoure was not present when BONY took possession of the Home. BONY did not see the Art at the Home at the time BONY took possession and never possessed the Art.
LaMoure disputed that Grinager read the release of personal property; LaMoure claimed that the release was altered after Grinager signed it. LaMoure also disputed that the Art was not at the Home; he saw the Art at the Home one month prior to the eviction.
B. PROCEDURAL BACKGROUND
1. COMPLAINT AND FIRST AMENDED COMPLAINT
On March 10, 2014, LaMoure filed his complaint for possession of personal property and damages against Grinager and does one through five. He sought immediate return of the Art; the Art was listed in an exhibit. In June 2012, pursuant to an oral agreement, Grinager agreed to store the Art at the Home. In June 2013, their relationship became strained. In July 2013, LaMoure made written and oral demands to Grinager to return the Art. Grinager refused to return the Art.
On May 20, 2014, LaMoure filed his first amended complaint for possession of personal property and damages (FAC). In the FAC, he named, in addition to Grinager, BONY as the Trustee for the Certificate Holders CWABS, Inc., Asset-Backed Securities and BAC. LaMoure provided additional information that Grinager had been evicted from the Home. He alleged that BAC was the agent for BONY in California. He added the additional information that BONY through BAC had foreclosed and obtained title to the Home. The Home had been locked. He alleged that BONY, BAC and Grinager all wrongfully and unlawfully possessed the Art. He sought immediate return. He added one additional piece of art to the list for a total of 51 pieces. He added Tri State Land Surveyors as a defendant on June 30, 2014. LaMoure sought punitive damages.
On August 18, 2014, BONY brought a motion to strike the prayer for punitive damages. On the same day, BONY filed a demurrer to the FAC. BONY contended that the FAC failed to state a cause of action; LaMoure never alleged that BONY had possession of the Art (and BONY never had possession) and his only recourse was against Grinager. LaMoure failed to allege the Art was at the Home at the time of the foreclosure and that it remained there after foreclosure.
On November 17, 2014, the trial court sustained the demurrer to the FAC without leave to amend. The FAC was dismissed with prejudice.
LaMoure filed a motion for reconsideration. He sought reversal of the dismissal of the FAC otherwise a gross injustice would result. He also sought leave to file his second amended complaint (SAC). LaMoure declared he had shown up for the hearing on the demurrer but was late and the trial court had refused to hear his argument. LaMoure's had mistakenly mailed his opposition to the demurrer to the San Bernardino Superior Court's old address. BONY opposed the motion for reconsideration. The trial court granted LaMoure's reconsideration motion; the demurrer was sustained as to the FAC with 30 days leave to amend.
2. SECOND AMENDED COMPLAINT
On February 17, 2015, LaMoure filed his SAC. He named BONY fka The Bank of New York as Trustee for the Certificate Holders CWABS, Inc., Asset-Backed Securities; BAC; Grinager; Tri State Land Surveyors; and Donald Brake.
The first cause of action was for claim and delivery against Grinager and Tri State Land Surveyors. He alleged that he had lived and worked part time, with the consent of Grinager, at the Home. Tri-State Land Surveyors also worked out of the Home. In 2012, Grinager agreed LaMoure could store the Art at the Home. Grinager refused to return the Art to LaMoure. On or about September 24, 2013, BONY foreclosed on the Home. In March 2014 BONY obtained possession of the Home. BONY was not subject to this cause of action because BONY denied any possession of the Art. LaMoure alleged that the Art was at the Home when BONY took possession. Further, BONY and the other defendants agreed to release the Art to Brake. The second cause of action was for breach of promissory note against Grinager.
The third cause of action for trespass to personal property named all defendants, including BONY. LaMoure alleged the "conduct" of all defendants was done with the knowledge that with substantial certainty it would result in damages to LaMoure based on interference with his right to the Art. LaMoure alleged he purchased the Art for $25,000 but it was now worth over $100,000.
The fourth cause of action was for conversion against all defendants. LaMoure alleged that the conduct of defendants substantially interfered with his ownership and right to possession of the Art. He had suffered damages in an amount to be proved at trial. He also sought general and punitive damages. The fifth cause of action was for an accounting against only Grinager and Tri State Land Surveyors.
He attached as exhibit No. 1 the list of the Art. He also attached a letter sent to BONY on April 14, 2014, notifying it that he had stored the Art at the Home. LaMoure advised BONY that the Art had been stored in the master bedroom closet. He demanded immediate possession of the Art. LaMoure also attached as an exhibit his letter to Brake dated February 7, 2015, demanding return of the Art. LaMoure advised Brake he was informed that Grinager had given the Art to Brake after Grinager had been evicted from the Home.
Attached as another exhibit was a personal property release signed by Grinager stating that as of March 12, 2014, all personal property at the Home was being released to Brake.
On March 16, 2015, BONY filed a motion to strike the SAC. Specifically, BONY sought to strike the trespass and conversion causes of action plus the demand for punitive damages. Although LaMoure was granted leave to file the SAC, he was not granted leave to add additional causes of action. The trespass and conversion claims were new claims that could only be included with leave of the court. Further, LaMoure had not shown he was entitled to punitive damages.
Along with the motion to strike the SAC, BONY filed a demurrer to the SAC. BONY first argued under Code of Civil Procedure section 472, LaMoure could not allege the new causes of action in the SAC. Further, LaMoure alleged that he entered into an agreement with Grinager to store the Art and that Grinager entered into an agreement to have Brake take all of the personal property stored at the Home. LaMoure had no recourse against BONY. There was no claim for trespass based on LaMoure's failure to allege that BONY ever had possession of the Art; that BONY knew it was stored at the Home; or that BONY intentionally kept the Art from him.
LaMoure filed an opposition to the demurrer to the SAC. He insisted discovery was required to determine where the Art was located and if it was recoverable. BONY intentionally interfered with his possession of the Art by taking possession of the Home while the Art was still stored there and by relinquishing it to Brake. There was a triable issue of fact on the trespass claim whether BONY interfered with his possession. If the Art could not be recovered, the conversion claim was supported.
LaMoure also filed opposition to the motion to strike the SAC. It was similar to the opposition to the demurrer and alleged that he was entitled to punitive damages. BONY filed a supplemental brief arguing Civil Code section 1989 "relieves a party who takes possession of real property from liability to third parties for personal property left at a residence once the party taking possession releases the personal property to a former tenant or owner."
At a hearing on May 5, 2015, the trial court overruled the demurrer to the trespass and conversion causes of action in the SAC. It found that based on the SAC and the demurrer, Civil Code section 1989 did not apply. The trial court struck the prayer for punitive damages without leave to amend. BONY filed an answer to the SAC.
3. SUMMARY JUDGMENT MOTION
On March 10, 2016, BONY filed the Motion. BONY submitted a separate statement of undisputed material facts, request for judicial notice and evidence, including declarations. BONY alleged when the Home was foreclosed on, the Art was not inside. Further, no personal property was inside the Home because Grinager gave all of his personal possessions to Brake when Grinager moved out of the Home.
BONY alleged that under the undisputed facts, LaMoure could not prove his trespass cause of action. He could not establish an intentional interference with his possession of the Art. BONY never had possession of the Art. LaMoure could not prove the second cause of action of conversion. LaMoure had not established that BONY proximately caused his injury. BONY never had possession of the Art. A necessary element of conversion is the intent to exercise ownership over property that belongs to another. LaMoure could not prove this element. It was undisputed that BONY never had possession of the Art.
Attached to the Motion were excerpts from the depositions of Brake, Grinager and LaMoure. Counsel for BONY submitted a declaration that the depositions were true and correct copies.
Brake's deposition was taken on September 9, 2015. LaMoure was present; he represented himself. Brake brought the agreement between himself and Grinager regarding the personal property at the Home. He took possession of the personal property on the day of the eviction, which was March 12, 2014. Brake took possession of the personal property based on the agreement that Grinager signed it over to him. Brake listed some of the personal property of which he took possession. He only described two pictures. Brake returned some of the items back to Grinager; they were placed in a storage facility. Brake took everything out of the house. One of the two pictures got damaged in his home and was thrown away.
Grinager was deposed on November 2, 2015. On the day he was evicted, Brake was present along with a sheriff's deputy. He felt pressured to sign the agreement with Brake to take his items and sell them in exchange for a getting a share of the profits when they were sold. Grinager denied that he had anything that belonged to LaMoure. The allegations that the Art was at the Home were false. LaMoure never lived with him and never asked him to store the Art.
LaMoure's deposition was taken on March 5, 2015. LaMoure initially stated he was at the Home one or two weeks prior to the lockout and the Art was in the master bedroom closet. He never spoke with anyone at BONY prior to the lock-out date about the Art. LaMoure later stated that he went to the Home one week prior to the lockout. The gates were locked and he could not get inside because Grinager was not home. He just assumed the Art was still in the closet because nothing appeared to have changed at the Home. LaMoure was certain the Art was there because he "knew" Grinager and he would not remove the Art. LaMoure also stated that Grinager may have given the Art to Brake or "the broker." He could only recall seeing the Art approximately one month prior to the lockout.
BONY requested judicial notice of the trustee's sale of the Home; the trustee's deed upon sale filed on March 5, 2013, showing the Home was purchased by BONY; and the March 12, 2014, notice of eviction.
4. LAMOURE'S OPPOSITION TO THE MOTION
LaMoure filed opposition to the Motion (the Opposition) on May 12, 2016. LaMoure agreed that the only causes of action against BONY were trespass and conversion. Since the location of the Art was still unknown, BONY was liable for conversion and trespass. LaMoure insisted that the Art was "peaceably located" in the Home; BONY foreclosed and removed Grinager from the Home. The Art was now missing. He insisted that whether BONY ever had possession of the Art was not determinative of the causes of action. There was no doubt that BONY and BONY's agents were the cause of the removal of the Art from the Home.
LaMoure submitted a declaration from Tina Amiri. She worked for LaMoure. She had helped LaMoure and Grinager sometime in 2012 put the Art in the master bedroom closet at the Home. Since that time, she had not been back to the Home.
LaMoure submitted his own declaration. He did not know what happened to the Art but it was missing. The Art had been stored at the Home since 2012. He declared the Art remained at the Home after it was foreclosed upon on February 25, 2013. LaMoure insisted that after February 25, 2013, he used the Home as a second office. He had not been to the Home since the end of 2013 but assumed the Art was still stored there. He attempted to get the Art in the beginning of March 2014, but the Home was locked. He could not enter the Home. He was certain that the Art was in the Home. Also, the release of Grinager's personal property to Brake was made under duress.
LaMoure included in his declaration conversations that he claimed to have had with Grinager when attending court appearances. Grinager was mean to him and denied any knowledge of the Art.
LaMoure attached documents from the unlawful detainer actions, including move-out agreements. He also submitted a request for production of documents made to BONY. LaMoure attached emails between him and Grinager from August 2013.
5. BONY'S REPLY TO THE OPPOSITION
BONY filed a reply to the Opposition. Brake and Grinager both provided testimony that the Art was not at the Home when BONY took possession of the Home. As such, LaMoure's causes of action failed due to BONY never having possession of the Art. LaMoure was not at the Home at the time of the eviction so he could not attest it was still at the Home. LaMoure had not provided a triable issue of fact. He admitted he did not know who had the Art. LaMoure had not presented any evidence to prove the Art was at the Home when BONY took possession. Amiri did not provide such evidence.
6. EVIDENTIARY RULING
BONY filed evidentiary objections to LaMoure's declaration provided with the Opposition. BONY made seven objections to statements in Amiri's declaration; 25 objections were made to statements in LaMoure's declaration. At the hearing on May 25, the trial court sustained seven of BONY's objections to LaMoure's declaration; including LaMoure's statements that the Art had been at the Home since 2012 and remained there on March 12, 2014; the statement that he attempted to retrieve the Art in March 2014 but was locked out of the Home; the statements supposedly made by Grinager to LaMoure during the court appearances; LaMoure's claim he had been damaged for the loss and dispossession of the Art; and that BONY had been cause of the loss of the Art. Amiri's declaration was admitted in its entirety.
Two days prior to the hearing on the Motion LaMoure filed and served evidentiary objections. He objected to the Brake deposition excerpt, filed with the Motion, on several grounds including that it was unsigned. At the hearing on May 27, 2016, counsel for BONY contended that LaMoure's objections, filed two days prior to the hearing, were untimely pursuant to California Rules of Court Rule 3.1354. The trial court agreed and did not consider LaMoure's objections.
7. RULING
The trial court tentatively ruled that the Motion was granted based on the undisputed facts set forth in the case including those provided by LaMoure as follows: "The artwork was not on the property at the time. The defendant took it over, so factually the—in this case the defendant could not have had any type of intentional interference with plaintiff's possession. As well, since the property was not—when I say property, artwork—was not on the property, there's no way that the defendant could have converted the property. As such, based upon all the documents provided the motion is granted." LaMoure maintained that the Art had been at the Home since 2012 and was missing. BONY had "interfered" with his possession of the Art. After hearing argument, the trial court adopted the tentative ruling.
Notice of entry of judgment with dismissal with prejudice was filed on June 14, 2016. LaMoure filed a timely notice of appeal.
DISCUSSION
"A trial court will grant summary judgment where there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. A defendant moving for summary judgment must prove the action has no merit. He does this by showing one or more elements of plaintiff's cause of action cannot be established or that he has a complete defense to the cause of action. At this point, plaintiff then bears the burden of showing a triable issue of material fact exists as to that cause of action or defense." (Towns v. Davidson (2007) 147 Cal.App.4th 461, 466; see also Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849 (Aguilar).) "A trial court may only grant a motion for summary judgment if no triable issues of material fact appear and the moving party is entitled to judgment as a matter of law." (Schachter v. Citigroup, Inc. (2009) 47 Cal.4th 610, 618.)
If the moving defendant meets its burden of showing evidence "that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action . . . the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff . . . shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto." (Code Civ. Proc., § 437c, subd. (p)(2); see Aguilar, supra, 25 Cal.4th at p. 849.) "[A] party 'cannot avoid summary judgment by asserting facts based on mere speculation and conjecture, but instead must produce admissible evidence raising a triable issue of fact.' " (Dollinger DeAnza Associates v. Chicago Title Ins. Co. (2011) 199 Cal.App.4th 1132, 1144-1145.)
"In ruling on the motion, the court must 'consider all of the evidence' and 'all' of the 'inferences' reasonably drawn therefrom [citation], and must view such evidence [citations] and such inferences [citations], in the light most favorable to the opposing party." (Aguilar, supra, 25 Cal.4th at p. 843.) Our review of the summary judgment motion is de novo. (Claudio v. Regents of University of California (2005) 134 Cal.App.4th 224, 230.)
A. CLAIM AND DELIVERY
LaMoure mentions the cause of action in the SAC involving claim and delivery. However, he concedes the SAC removed BONY as a defendant from that cause of action. The claim is not properly raised here.
B. TRESPASS
LaMoure appears to contend that the fact BONY never had possession of the Art was not fatal to his claim of trespass; BONY intentionally interfered with his personal property by taking possession of the Home. He insists that BONY and/or its agents were the cause of removal of the Art. There was a causal connection between BONY and the loss of the Art.
"[T]he tort of trespass to chattels allows recovery for interferences with possession of personal property 'not sufficiently important to be classed as conversion, and so to compel the defendant to pay the full value of the thing with which he has interfered.' [Citation.] [¶] Though not amounting to conversion, the defendant's interference must, to be actionable, have caused some injury to the chattel or to the plaintiff's rights in it. Under California law, trespass to chattels 'lies where an intentional interference with the possession of personal property has proximately caused injury.' [Citation.] In cases of interference with possession of personal property not amounting to conversion, 'the owner has a cause of action for trespass or case, and may recover only the actual damages suffered by reason of the impairment of the property or the loss of its use.' [Citation.] In modern American law generally, '[t]respass remains as an occasional remedy for minor interferences, resulting in some damage, but not sufficiently serious or sufficiently important to amount to the greater tort' of conversion." (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1350-1351, italics omitted; see also Jamgotchian v. Slender (2009) 170 Cal.App.4th 1384, 1401.)
BONY's moving papers made a prima facie showing that there was no interference—intentional or unintentional—with LaMoure's possession of the Art because it was not at the Home at the time BONY took possession. First, BONY presented the deposition of Grinager, who denied the Art was at the Home when he was evicted on March 12, 2014. Further, BONY also produced evidence that Brake took the personal property from the Home and only two pictures were at the Home. Moreover, nothing was left at the Home at the time of the eviction. Even LaMoure had not seen the Art at the Home at the time of the eviction; he last saw it one month prior to the eviction. Without the Art being at the Home when BONY took possession of the Home, BONY could not interfere with LaMoure's possession. In fact, BONY had no knowledge of the Art.
LaMoure sent a letter to BONY demanding possession of the Art, but it was after the eviction.
It was up to LaMoure to present evidence in the Opposition that the Art was at the Home or that BONY was somehow responsible for its removal. As stated by LaMoure in his declaration, he was not present at the time of the eviction on March 12, 2014. He had seen the Art one month prior to the eviction but had no knowledge of whether the Art was at the Home at the time of the eviction. He presented the declaration from Amiri but she only provided evidence that the Art was placed in a closet at the Home in 2012; she had no knowledge of the location of the Art on March 12, 2014.
LaMoure did not show that a triable issue of one or more material facts existed as to the trespass cause of action. Although LaMoure continuously argues that possession was not an element of trespass, BONY would have to have had some knowledge of the Art in order to interfere with LaMoure's possession. BONY cannot be held responsible for the actions of Grinager or Brake. There was no triable issue of fact that BONY interfered with LaMoure's possession of the Art.
C. CONVERSION
LaMoure's other cause of action against BONY was for conversion. " 'Conversion is generally described as the wrongful exercise of dominion over the personal property of another. . . . The basic elements of the tort are (1) the plaintiff's ownership or right to possession of personal property; (2) the defendant's disposition of the property in a manner that is inconsistent with the plaintiff's property rights; and (3) resulting damages.' " (Regent Alliance Ltd. V. Rabizadeh (2014) 231 Cal.App.4th 1177, 1181.) "Conversion is a strict liability tort. The foundation of the action rests neither in the knowledge nor the intent of the defendant. Instead, the tort consists in the breach of an absolute duty; the act of conversion itself is tortious. Therefore, questions of the defendant's good faith, lack of knowledge, and motive are ordinarily immaterial." (Burlesci v. Peterson (1998) 68 Cal.App.4th 1062, 1066.)
As with the claim of trespass, BONY provided a prima facie case that the Art was not at the Home when BONY took possession. BONY did not have dominion or control over the Art and had nothing to do with the disposition of the Art inconsistent with LaMoure's property rights. Based on the evidence, even if the Art had been at the Home at some time, when BONY took possession the evidence established that the Art was not at the Home. Either Grinager removed it earlier or Brake took possession. But BONY was only foreclosing on the Home, as it had the right to do, and never took control of the Art.
In response, LaMoure presented evidence that at some time prior to March 12, 2014, the Art was in the closet at the Home. However, there was no evidence presented by LaMoure that on the day that BONY took possession, the Art was at the Home. LaMoure again contends the fact that BONY never had possession of the Art is not dispositive since BONY caused the Art to be lost. LaMoure provides no case law to support this contention. Moreover, it is equally as possible that Grinager removed the Art prior to eviction. BONY had nothing to do with the agreement between Grinager and Brake to remove the personal property from the Home. BONY could not convert personal property that it had no control over.
LaMoure concludes that despite the Art not being at the Home at the time BONY took possession, the mere fact that BONY initiated the foreclosure and took possession disrupted the storage of the Art at the Home. He continues that there was no necessity that BONY have possession of the Art. We reject such claims. BONY had to somehow interfere with LaMoure's property rights but all that LaMoure's evidence showed was that Grinager and Brake may have been involved in removing the Art. LaMoure cannot meet the elements of trespass and conversion because BONY had no control over the Art and cannot be held responsible for the acts of others over whom it had no control.
D. FAILURE TO RULE ON OBJECTIONS TO EVIDENCE
LaMoure complains the trial court failed to rule on his objections to BONY's evidence. He appears to concede he did not comply with California Rules of Court, rule 3.1354 but insists this court must address his objections.
California Rules of Court, rule 3.1354(a) provides: "Unless otherwise excused by the court on a showing of good cause, all written objections to evidence in support of or in opposition to a motion for summary judgment or summary adjudication must be served and filed at the same time as the objecting party's opposition or reply papers are served and filed." Rule 3.1352 provides, "A party desiring to make objections to evidence in the papers on a motion for summary judgment must either: (1) Submit objections in writing under rule 3.1354; or (2) Make arrangements for a court reporter to be present at the hearing."
We apply the abuse of discretion standard when reviewing the trial court's rulings on evidentiary objections. (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 852; Powell v. Kleinman (2007) 151 Cal.App.4th 112, 122.)
Here, LaMoure filed his written objection to Brake's deposition on May 25, 2016, which was two days prior to the hearing on the Motion. He had filed the Opposition on May 12, 2016. As such, he did not comply with California Rules of Court, rule 3.1354. The trial court did not abuse its discretion when it failed to consider LaMoure's objections since they were not made timely and he failed to renew them orally at the hearing. (Hodjat v. State Farm Mut. Auto. Ins. Co. (2012) 211 Cal.App.4th 1, 7-8 [trial court did not abuse its discretion by refusing to consider objections that were not made in compliance with Cal. Rules of Court, rule 3.1354].) The trial court properly ignored LaMoure's untimely objections.
DISPOSITION
The judgment is affirmed. As the prevailing party, respondents are awarded costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting P. J. FIELDS
J.