A A A 

Tentative Ruling
Judge Donna Geck
Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107


Rancho Las Cruces LLC vs Robert Allen Ramirez

Case No: 17CV05747
Hearing Date: Fri Mar 09, 2018 9:30

Nature of Proceedings: Demurrer/Motion to Quash Service of Summons

TENTATIVE RULING: The motion to quash is granted.


Background: The complaint, filed December 20, 2017, alleges that plaintiff Rancho Las Cruces LLC is the owner of property located at RR 1, Box 300, Goleta CA 93117-9711, on APN: 081-080-022. It alleges that defendant Robert Allen Ramirez is a squatter on the property, who took possession of the property on approximately April 20, 2017, purportedly pursuant to an oral agreement with defendant’s brother. A 30-Day Notice to Quit was served upon defendant on November 7, 2017, by posting and mail service. That period expired on December 7, 2017. Fair rental value of the premises is $10/day. The complaint seeks $2100 in past-due rent, forfeiture of the agreement, damages at $10/day for each day defendant remains in possession through entry of judgment, and plaintiff reserves its rights and remedies for waste because of defendant’s demolition of a dwelling on the premises, and his subsequent squatting without any legal right to possession.

In an attachment, plaintiff somewhat disjointedly alleges further that the property is held in the name of Rancho Las Cruces LLC, and subject to the management and control of defendant’s two maternal uncles, who are its majority owners and managers under the terms of the operating agreement. The property had been part of the family homestead and ancestral property of defendant’s mother’s family, prior to its transfer into Rancho Las Cruces, LLC. Defendant’s mother, Carolyn Jane Winther had possessed a minority interest in the property, with no rights of management or control. After her death, defendant discussed his plans to take possession of the dwelling unit on the premises with his brother, John Mogens Henning, under the mistaken belief that he now had some entitlement to the property, although any interest he had in the premises was an expectancy as to a personal property interest, without any right of occupancy or possession. At no time did defendant have the permission of his uncles (as managing members of the LLC) to occupy the property or to demolish the residence that had been on the property since the 1940s, and he had no right to occupy the premises without such consent; his mother’s interest in the LLC did not give him any rights to the property under the LLC Operating Agreement.

On or about April 20, 2017, defendant demolished the dwelling unit on the premises and moved on a travel trailer, a 40 foot, storage/shipping container, several motor vehicles, and constructed a kennel on the property where the dwelling unit had been located. Plaintiff alleges that it reserves all rights and remedies for waste in a separate proceeding, or as part of the anticipated probate proceeding of Carolyn Jane Winther’s estate.

Exhibit—30-Day Notice to Quit, served upon plaintiff by posting and by mail service, on November 7, 2017. Directed to Robert Allen Ramirez, 1781 Laurel Street, Solvang, CA 93463. The notice states that his tenancy with Rancho Los Cruces LLC, is terminated, and if he fails to vacate before December 15, 2016, an action to evict him will be brought by Rancho Las Cruces, LLC. It further states that the Notice notifies him that the LLC reserves all rights and remedies relation to the demolition of the residential premises on April 20, 2017.

Demurrer/Motion to Quash: Defendant Ramirez has filed a combination demurrer and motion to quash service of summons, contending that no cause of action for unlawful detainer has been stated, and this is not an appropriate dispute for resolution through the expedited unlawful detainer process.

Declaration The demurrer/motion is supported by defendant’s declaration, in which he states he is the son of Carolyn Jane Winther and one of the heirs of her estate. His mother owned a 1/3 interest in the property owned by Rancho Las Cruces LLC. She died intestate and was not married, meaning that he and his three siblings are the heirs to her estate, including her interest in the property. He declares that he informed his uncles that he would like to put a trailer on the property and live there, and they had no objection. The uncles attended a barbeque at the site on 4/22/17, and he let them know he was going to order a 40-foot storage container; they were curious about how much that would cost. His brother (John Henning) petitioned to be Administrator of his mother’s estate (18PR00001). As administrator, John Henning granted defendant permission to live at the property. Defendant declares he spent $34,000 to buy the trailer, clean and clear the property, obtain the storage container, buy a generator, and have electrical work done that allowed him to hook up to existing electrical service at the property, and he only did so once his uncles agreed to his living there. Although they now claim they never gave consent, that is untrue, and he would not have incurred all of those expenses and moved onto the property without their consent.

The declaration further states that shortly after he moved in, one of his uncles called and had the electrical meter removed from the property, so he now has no electrical hookup. He was notified that they had hired an attorney to evict him from the property, and feels that he is being retaliated against for wanting to live at the property his mother owned in part. He has lived there since May 2017. When they gave him permission to live there, there was no time limit on how long he could stay, and he was not asked to pay rent. His uncles have also been living at the property since 2009 and not paying rent to the LLC. He does not believe his uncles are properly managing the LLC. He believes he has rights in and to the property, after his mother’s death, and he plans to bring an action to remove his uncles as managers, based on their self-dealing and mismanagement, and their improper conduct in bringing this action against him after giving him consent to live on the property.

Argument Defendant contends the 5-day summons should be quashed, because the court has no jurisdiction to hear the matter in unlawful detainer. Defendant has a vested right in the assets of his mother’s estate, including the property held in the LLC. He moved to the property after obtaining the consent of his uncles and his brother, Administrator of his mother’s estate. The matter is not proper for the expedited unlawful detainer procedure. When a complaint fails to state an unlawful detainer cause of action, the court has no jurisdiction over a defendant served with a 5-day summons. (Greene v. Municipal Court (1975) 51 Cal.App.3d 446, 450.) Further, by plaintiff’s own admission, as his mother’s heir, defendant has rights in and to the property. Those rights are currently controlled by his brother, as administrator of his mother’s estate, but his brother has granted permission for him to live on the property. Under the uncles’ logic, they as managers of the LLC and part-owners of the property are able to live rent-free on the property, but the other owner does not. Finally, the complaint seeks forfeiture, but that was not requested in the 30-day notice served upon defendant.

In support of his demurrer/motion to quash, defendant requested judicial notice of the probate action for his mother’s estate, Santa Barbara Superior Court Case No. 18PR00001.

Opposition: The LLC convolutedly opposes the demurrer and motion to quash, again reaffirming that defendant moved onto the property without consent, and demolished a legal, non-conforming dwelling that had existed since before 1944, in violation of management and control provisions of the LLC operating agreement, and committing waste. It argues that because the residence was existing when defendant entered possession, the action is permissibly brought under unlawful detainer because forcible entry is covered under unlawful detainer statutes, citing only Code of Civil Procedure section 1159. It further argues that by entering into possession with or without permission, a tenancy exists between defendant and the owner (no authority cited), and argues that the facts recited in a written instrument are conclusively presumed true between the parties and their successors, and that a tenant is not permitted to deny title of the landlord at the time of the commencement of the relationship. LLC argues that defendant cannot dispute that his mother’s estate “gives him any right to occupy the premises”, or that the interest he might acquire under his mother’s estate is only a minority interest in personal property (no authority cited). LLC contends that the Administrator has no permission to give to defendant, under the provisions of the LLC operating agreement. Defendant misconstrues the legal relationship between the parties, who has title to the property, and how limited his rights are until his claims about the LLC are adjudicated in the probate proceeding. His unilateral mistake as to who owns what is not a jurisdictional defect, or an affirmative defense.

LLC impermissibly seeks judicial notice of its own operating agreement, and the provisions which provide the uncles with authority to manage it, arguing the terms are conclusive against defendant. LLC further asserts that defendant has a statute of frauds problem, since there is no writing to create a legal tenancy of unknown duration, and he will have been in possession of the premises for more than a year “by the time this action is heard.”

LLC contends it has lost the value of an existing, legally non-conforming dwelling on the property, and caused the LLC to incur zoning violations by the destruction of the dwelling, and the failure to secure permits for occupancy in a trailer. Even if permission had been given, the alleged contract for demolition and occupancy of the property would be an illegal contract, since it would violate the building and zoning codes. “Defendant’s contention is because of who he is he can do as he damn well pleases, and nobody can tell him otherwise.” LLC contends the “perceptual problem” has cost it $300,00 [sic] in forfeited vested rights. Although defendant wants to hide behind the pending probate, he has not filed a notice of related action, in violation of court rules.

Evidence The LLC includes a joint declaration of its managers, defendant’s uncles, Walter and James Henning, which asserts that their deceased sister (defendant’s mother) never had management or control over the LLC, because she lived in Denmark. They assert she never intended that defendant have any right to occupy the property, and only learned that defendant had begun demolition of a formal rental unit on the property (without obtaining required permits) when they were advised of it by a resident of the property on April 22, 2017. It was only then that defendant informed them he intended to live there after he had cleared the property, and he has lived there ever since. They never agreed or allowed him to demolish the structure. They have had numerous disputes with him over the years involving family owned real property, which he has “habitually sought to systematically trash, occupy, and commit waste” and stockpile personal property and vehicles on the properties. They refuse to negotiate any disposition of whatever interest he may have to their sister’s interest in the LLC because of his “illegal, malicious, and unauthorized occupancy” of a portion of the LLC property. His destruction of the residence was just an attempt to create leverage on that issue. They seek to regain possession before making their claims for damage in the probate action. They believe there was a mistake in communication between defendant and his brother regarding the brother’s authority to grant permission to occupy the premises. They state the LLC has lost “hundreds of thousands of dollars in value” as to the mistake about who owned what. They never agreed in writing or otherwise to his entry or alteration of the premises.

LLC also requested judicial notice of its own articles of incorporation, of its operating agreement, of a deed to fund the LLC, and of Santa Barbara County Code sections 35-313.2 and 35-314.2.

Reply: In his reply, defendant again reiterates that the action is inappropriate for pursuit in a summary unlawful detainer action, rather than in a regular action. No lease is alleged, and the action does not lie in unlawful detainer. He again contends he has property rights in the property at issue, and that the LLC managers’ actions in living on the property without paying rent to the LLC is creating a basis for their removal as managers. He contends he is not a squatter, but an heir of an original owner, who was given permission to live on a small portion of the several hundred acre property. He asserts the statute of frauds does not apply, since he had permission to be on the property, and the LLC cannot affirmatively use the statute of frauds to commit a fraud.

Declaration The reply includes the declaration of defendant’s brother, John Mogens Henning, who declares he is the administrator of the estate of their mother. Since their mother owned a 1/3 interest in the property, defendant asked him whether he objected to defendant moving a trailer to the property, and he had no objection. As administrator, he is a 1/3 member of the LLC, and he and his 3 siblings are the heirs to the estate. In early 2017, before defendant put his trailer on the property, he attended a meeting with defendant and his uncles, at which time he had already begun cleaning up the property, including a fallen structure. While he had no personal knowledge of his uncles having given defendant prior permission to enter the property, as stated by defendant, at the meeting the uncles told defendant that he should complete the clean-up, put in a concrete pad, and then move his trailer to the property. He was therefore present when the uncles gave permission to move a trailer on the property and live there. He is aware that defendant thereafter spent a considerable amount of money clearing the property to put a concrete pad in and bring the trailer. He has been living there since May 2017. No lease was ever discussed or required, because it was not a lease situation. Since defendant is a part owner of the property, he is not required to pay rent. Similarly, the uncles live at the property without lease or payment of rent.

Analysis: The motion to quash is granted.

Requests for judicial notice Defendant’s demurrer seeks judicial notice of the contents of the probate case for his mother’s estate, Estate of Carolyn Jane Winther, Santa Barbara Superior Court Case No. 18PR00001. There is little in the probate file that is of relevance to the demurrer and motion to quash, but it does show defendant’s status as the son and heir of Carolyn Jane Winther, and the location of estate property at the address of the property at issue in this action. Records of any court of this state are proper subjects of judicial notice. (Evid. Code, § 452, subd. (d)(1).) Judicial notice will be taken.

In opposition to the demurrer and motion to quash, plaintiff seeks judicial notice of four documents. The first two, the LLC’s articles of incorporation and its operating agreement, are not proper subjects of judicial notice. That they may be on file with the Secretary of State’s Office does not cause them to fall within any category which requires or even allows judicial notice of them to be taken. The Court will deny the request for judicial notice of the LLC’s articles of incorporation and operating agreement.

The second two documents are a recorded deed, and provisions of the Santa Barbara County Code. While a court may take judicial notice of the existence of recorded deeds, it may not take judicial notice of the factual matters stated therein. (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.) As a result, while the Court will take judicial notice of the existence and recording of the deed, it will not take judicial notice of the factual matters stated within the deed. Legislative enactments issued by or under the authority of any public entity are a proper subject of judicial notice. (Evid. Code, § 452, subd. (b).) As a result, the Court will take judicial notice of the provisions of the Santa Barbara County Code.

Demurrer/motion to quash Unlawful detainer actions are authorized and governed by statute. (Code Civ. Proc., § 1161 et seq.) The statutory scheme is intended and designed to provide an expeditious remedy for the recovery of possession of real property. (Larson v. City and County of San Francisco (2011) 192 Cal.App.4th 1263, 1297.) Under the express terms of the statute, the remedy is available in only three situations: to a lessor against a lessee for unlawfully holding over or for breach of a lease; to an owner against an employee, agent, or licensee whose relationship has terminated; and to a purchaser at an execution sale, a sale by foreclosure, or a sale under a power of sale in a mortgage or deed of trust against the former owner and possessor. (Taylor v. Nu Digital Marketing, Inc. (2016) 245 Cal.App.4th 283, 288-289, quoting Greene v. Municipal Court (1975) 51 Cal.App.3d 446, 450.) Because unlawful detainer proceedings are summary in nature, one who seeks to avail himself of the remedy must bring himself clearly within the terms of the relationships described in the statute. (Marvell v. Marina Pizzeria (1984) 155 Cal.App.3d Supp. 1, 6.)

If an action does not state a cause of action in unlawful detainer, and the plaintiff purported to utilize Code of Civil Procedure section 1167 to serve the defendant only with an unlawful detainer summons requiring responsive pleading within five days, the court does not acquire jurisdiction over the defendant. (Greene v. Municipal Court (1975) 51 Cal.App.3d 446, 451-452.) This is true even if the complaint states some other cause of action against the defendant, because all other claims require service with a summons requiring responsive pleading within 30 days, and the summons is defective unless some specific statute modifies the time for response. (Code Civ. Proc., § 412.20.) Where the court has not acquired jurisdiction over the defendant, a motion to quash must be granted. (Code Civ. Proc., § 418.10, subd. (a)(1).)

The allegations of plaintiff’s complaint do not fall within any of the situations which may be the subject of summary unlawful detainer proceedings. Plaintiff does not claim that defendant entered the property with their permission, either in exchange for the payment of rent or otherwise, and in fact expressly allege that he is a squatter who entered the property without its consent. While plaintiff’s opposition summarily asserts—without citation of any authority—that a tenancy subject to summary unlawful detainer proceedings exists simply because of defendant’s entry onto the premises, that is simply not the law. There is no possible way to characterize the relationship between the parties as one of landlord and tenant. Neither can the allegations in the complaint be construed to fit any of the other situations described in Section 1161 which can be addressed through summary unlawful detainer proceedings.

In its opposition, the LLC also contends that the action is permissibly brought under the unlawful detainer statute because the dwelling on the premises existed at the time defendant entered onto the property, and forcible entry is covered by unlawful detainer statutes. Plaintiff does not explain how the circumstances it alleged could possibly constitute forcible entry, and cites no legal authority other than Code of Civil Procedure section 1159 to support its contention. Rather, plaintiff simply threw out the possibility in passing, in an attempt to continue to justify the continued maintenance of its action as a summary proceeding, once it became apparent that the action could likely not proceed as one in unlawful detainer.

In failing to support the contention, plaintiff has effectively abandoned it. Even if considered on its merits, however, the contention fails. The facts alleged in the complaint are inconsistent with the LLC’s contention that a forcible entry occurred. Code of Civil Procedure section 1159 provides, in relevant part:

Every person is guilty of a forcible entry who either:

1. By breaking open doors, windows, or other parts of a hours, or by any kind of violence or circumstance of terror enters upon or into any real property; or,

2. Who, after entering peaceably upon real property, turns out by force, threats, or menacing conduct, the party in possession.

Forcible entry statutes have long existed in California. It has always been true that, like the unlawful detainer statutes, the forcible entry statute must be strictly construed, and that in order for a party to avail himself of the summary remedy he must bring himself clearly within its provisions. (House v. Keiser (1857) 8 Cal. 499, 501.) It has also long been settled law that facts which show entry with no more force than might constitute a mere trespass upon property are insufficient to constitute forcible entry. (Castro v. Tewksbury (1886) 69 Cal. 562, 568.)

At best, the complaint alleges that after entering the property, defendant demolished an existing structure, and in its place moved in a travel trailer, shipping container, motor vehicles, and constructed a kennel. Any acts of demolition or “breaking open” of any parts of the structure were not for purposes of gaining entry to the real property; defendant had already entered the property when those acts occurred. They therefore do not meet the definition of a forcible entry, within the meaning of Section 1159(1). Further, there are no allegations which support any part of the alternative circumstance of forcible entry set forth in Section 1159(2), in turning out by force, threats, or menacing conduct, the party in possession.

That a forcible detainer claim is inconsistent with and precluded by the judicial admissions already made by plaintiff does not mean that the facts it has alleged are inconsistent with other possible causes of action, including causes of action which, if proven, could result in defendant’s ultimate ouster from the property. It is quite possible that plaintiff may have causes of action against defendant for ejectment, trespass, to quiet title to the property, or some other possible claim. However, none of those claims can be pursued in summary unlawful detainer or forcible entry proceedings, and all require service of a 30-day summons along with the complaint, in order for the court to acquire jurisdiction over the defendant.

Because the Court finds this action may not be maintained as a summary proceeding (either in unlawful detainer or in forcible entry), and because service of a 5-day summons upon defendant therefore did not act to acquire jurisdiction over defendant, the motion to quash the complaint and 5-day summons must be granted. While this action is at an end, plaintiff is free to file a new action and pursue its claims pursuant to a 30-day summons.

© Superior Court of the County of Santa Barbara
Locations & Contact Info | Court Security | Human Resources | Privacy Policy | ADA