samsloan
2012-12-11 06:20:48 UTC
SUPERIOR COURT OF CALIFORNIA
COUNTY OF MARIN
DATE: ll/28/12 TIME: 8:30 A.M. DEPT: B CASE N0: CV1204541
PRESIDING: HON. ROY O. CHERNUS
CLERK: DUONG THAI
PLAINTIFF: BANK OF AMERICA, N.A.
vs.
DEFENDANT: SAMUEL H. SLOAN, ET AL
NATURE OF PROCEEDINGS: 1) MOTION FOR SUMMARY JUDGMENT - AGAINST
SLOAN AND KIMURA [PLTF] BANK OF AMERICA, N.A'
2) MOTION FOR SUMMARY JUDGMENT - AGAINST DEFTS HOPPE AND
THORNALLY [PLTF] BANK OF AMERICA. N.A.
RULING
Motions for Summary Judgment by Plaintiff Bank of America, N. A.,
Trustee of the Trust for Michael created under the Goodall Trust dated
September 12,1990, against defendants Samuel Sloan, Roy Hcppe, Frank
Thornally, and Kayo Kimura are denied.
As against Sam Sloan and Kayo Kimura plaintiff seeks judgment far
possession based on orders of the San Francisco Superior Court and the
July 27, 2012, Sixty-day notice. Plaintiff has put its title to the
property "at issue" in this unlawful detainer proceeding. The bulk of
the allegations in the Complaint and the "Undisputed Facts" in support
of the subject motion for summary judgment are addressed to plaintiffs
extensive efforts by way of collateral proceedings in San Francisco
Superior Court to confirm that the premises is an asset of the Trust
for Michael created under the Goodall Trust dated September 12,l990,
that title to the premises is in Bank America as trustee, and that
plaintiff may administer the premises pursuant to the terms of Trust.
Yet despite plaintiffs extensive allegations detailing the San
Francisco proceedings, plaintiff does not actually allege or
demonstrate via undisputed facts that the orders of the SF Sup. Court
are final or that the issue of its title to the subject property has
been fully and finally determined.
Plaintiff appears to base its right to commence this unlawful detainer
proceeding upon the Minute Order of the SF Superior Court dated July
19, 2012, denying defendant's petition for reconsideration as
plaintiff served the subject 60-Day Notice eight days later on July
27,2012, even though the court's order was not formally entered until
September 27, 2012. (See Complaint, par. 19, and Exh. E) Even assuming
the order denying defendant's petition for reconsideration constitutes
a final and binding determination of plaintiffs title (though not
specifically alleged) plaintiff served the 60-day notice before the
notice before that order was formally entered on September 27, 2012.
This unlawful detainer action was filed a mere 12-days later on
October 9, 2012. As stated by the Court in Greenhut v. Wooden {1982}
129 Cal.App.3d 64,68, this is not your usual garden variety type of
unlawful detainer action where the issue of title is strictly limited.
Having put its own title in issue and by relying on the San Francisco
Trust proceeding as the source of its authority to commence this
proceeding plaintiff should demonstrate that title to the property
has, in fact, been finally adjudicated in its favor. Plaintiff's
pleading and evidence falls falls short of demonstrating a final
adjudication of title in its favor and raises a question of fact
whether the alleged 60-day notice was served prematurely.
As to defendants Hoppe and Thornally, a complaint for unlawful
detainer must allege that the tenant continues in possession of the
premises. (CCP $1161.) No cause of action for unlawful detainer exists
if the tenant has quit before the action is filed. Defendants Hoppe
and Thornally have filed answers admitting they have relinquished
possession of the premises. In its motion, plaintiff claims that while
Hcppe and Thornally have relinquished physical possession of the
premises, “plaintiff is informed that Hoppe and Thornally have not
relinquished their alleged right to possession of the premises." If a
landlord wishes to determine rights to possession but not physical
possession, it cannot do so by way of summary unlawful detainer; a
quiet title action would be the proper remedy.
COUNTY OF MARIN
DATE: ll/28/12 TIME: 8:30 A.M. DEPT: B CASE N0: CV1204541
PRESIDING: HON. ROY O. CHERNUS
CLERK: DUONG THAI
PLAINTIFF: BANK OF AMERICA, N.A.
vs.
DEFENDANT: SAMUEL H. SLOAN, ET AL
NATURE OF PROCEEDINGS: 1) MOTION FOR SUMMARY JUDGMENT - AGAINST
SLOAN AND KIMURA [PLTF] BANK OF AMERICA, N.A'
2) MOTION FOR SUMMARY JUDGMENT - AGAINST DEFTS HOPPE AND
THORNALLY [PLTF] BANK OF AMERICA. N.A.
RULING
Motions for Summary Judgment by Plaintiff Bank of America, N. A.,
Trustee of the Trust for Michael created under the Goodall Trust dated
September 12,1990, against defendants Samuel Sloan, Roy Hcppe, Frank
Thornally, and Kayo Kimura are denied.
As against Sam Sloan and Kayo Kimura plaintiff seeks judgment far
possession based on orders of the San Francisco Superior Court and the
July 27, 2012, Sixty-day notice. Plaintiff has put its title to the
property "at issue" in this unlawful detainer proceeding. The bulk of
the allegations in the Complaint and the "Undisputed Facts" in support
of the subject motion for summary judgment are addressed to plaintiffs
extensive efforts by way of collateral proceedings in San Francisco
Superior Court to confirm that the premises is an asset of the Trust
for Michael created under the Goodall Trust dated September 12,l990,
that title to the premises is in Bank America as trustee, and that
plaintiff may administer the premises pursuant to the terms of Trust.
Yet despite plaintiffs extensive allegations detailing the San
Francisco proceedings, plaintiff does not actually allege or
demonstrate via undisputed facts that the orders of the SF Sup. Court
are final or that the issue of its title to the subject property has
been fully and finally determined.
Plaintiff appears to base its right to commence this unlawful detainer
proceeding upon the Minute Order of the SF Superior Court dated July
19, 2012, denying defendant's petition for reconsideration as
plaintiff served the subject 60-Day Notice eight days later on July
27,2012, even though the court's order was not formally entered until
September 27, 2012. (See Complaint, par. 19, and Exh. E) Even assuming
the order denying defendant's petition for reconsideration constitutes
a final and binding determination of plaintiffs title (though not
specifically alleged) plaintiff served the 60-day notice before the
notice before that order was formally entered on September 27, 2012.
This unlawful detainer action was filed a mere 12-days later on
October 9, 2012. As stated by the Court in Greenhut v. Wooden {1982}
129 Cal.App.3d 64,68, this is not your usual garden variety type of
unlawful detainer action where the issue of title is strictly limited.
Having put its own title in issue and by relying on the San Francisco
Trust proceeding as the source of its authority to commence this
proceeding plaintiff should demonstrate that title to the property
has, in fact, been finally adjudicated in its favor. Plaintiff's
pleading and evidence falls falls short of demonstrating a final
adjudication of title in its favor and raises a question of fact
whether the alleged 60-day notice was served prematurely.
As to defendants Hoppe and Thornally, a complaint for unlawful
detainer must allege that the tenant continues in possession of the
premises. (CCP $1161.) No cause of action for unlawful detainer exists
if the tenant has quit before the action is filed. Defendants Hoppe
and Thornally have filed answers admitting they have relinquished
possession of the premises. In its motion, plaintiff claims that while
Hcppe and Thornally have relinquished physical possession of the
premises, “plaintiff is informed that Hoppe and Thornally have not
relinquished their alleged right to possession of the premises." If a
landlord wishes to determine rights to possession but not physical
possession, it cannot do so by way of summary unlawful detainer; a
quiet title action would be the proper remedy.