Pacific Palms Condominium Association v. Phillip S. Woyak

Case Number

18CV01192

Case Type

Hearing Date / Time

Mon, 02/26/2024 - 10:00

Nature of Proceedings

Plaintiff’s Motion For An Order To Show Cause Re Contempt Sanctions And For Attorneys Fees

Tentative Ruling

Pacific Palms Condominium Association v. Phillip S. Woyak                          

Case No. 18CV01192      

Hearing Date: February 26, 2024                                          

HEARING:              Plaintiff’s Motion For An Order To Show Cause Re Contempt Sanctions And For Attorneys Fees

ATTORNEYS:        For Plaintiff Pacific Palms Condominium Association: Norman S. Wisnicki, Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP

                                    For Defendant Phillip S. Woyak: No appearance.

                                   

TENTATIVE RULING:

The court denies without prejudice the motion of plaintiff for an order to show cause re contempt sanctions and for attorneys’ fees. Plaintiff shall serve notice of this ruling on defendant and file proof of service of the notice.

Background:

This action commenced on March 8, 2018, with the filing of a complaint by plaintiff Pacific Palms Condominium Association (the Association) against defendant Phillip S. Woyak (Woyak) alleging two causes of action for breach of covenants and nuisance. As alleged in the complaint:

Woyak owns a condominium unit (the property) in a complex (the complex) located at 385 Pacific Oaks Road in Goleta, California. (Complaint, ¶ 5.) The property is subject to the Covenants, Conditions, and Restrictions (the CCR) of the Association, which is composed of owners of the condominium units located in the complex. (Complaint, ¶¶ 1-3, 5, 7.)

Almost immediately after moving into the property, Woyak “engaged in intentional acts designed to harass, offend, disrupt, and/or cause a nuisance to other owners, residents, employees, and guests in the Association, all of which constitute violations of the Governing Documents and a private nuisance.” (Complaint, ¶ 8.) Woyak’s violations include: (1) maintaining the property in an unclean and unsanitary condition with an excessive accumulation of waste, trash, garbage, and miscellaneous items; (2) using multiple vehicles to store trash, clothing, equipment, and other materials which are visible to the public; (3) refusing to allow entry onto the property by the Association’s representatives to ensure that the conditions are addressed and abated; and (4) failing to comply with the CCR. (Ibid.) Woyak was repeatedly asked to correct the conditions on his property and to comply with the CCR, but failed to do so. (Id. at ¶ 9.)

Court records reflect that, pursuant to the court’s order dated May 9, 2018, Woyak was served with the complaint by publication on May 18, May 25, June 1, and June 8, 2018. Woyak did not file an answer or other response to the complaint. On July 17, 2018, the default of Woyak was entered.

Court records further reflect that on July 12, 2019, a money judgment representing attorney’s fees and costs and permanent injunction (collectively, the judgment) was entered and granted in favor of the Association and against Woyak. The Association filed and served on Woyak by mail a notice of entry of the judgment on July 26, 2019.

On July 31, 2023, the Association filed a motion for an order enforcing the judgment (the motion to enforce). Woyak did not oppose or otherwise respond to the motion to enforce of the Association.

On September 11, 2023, the court denied the motion to enforce. In its September 11, 2023, Minute Order (the Minute Order), the court determined that the Association was not seeking to enforce a money judgment or a judgment for possession of real or personal property. The court noted that Code of Civil Procedure section 717.010 sets forth the means of enforcement of a judgment “not otherwise enforceable pursuant to [Title 9] may be enforced by personally serving a certified copy of the judgment on the person required to obey it and invoking the power of the court to punish for contempt.” (Code Civ. Proc., § 717.010.) Because the Association provided no persuasive authority that the court may enforce the judgment in any other manner, the court noted that “the proper remedy is a code-compliant contempt action against Woyak.” (See Minute Order.)

On November 8, 2023, the Association filed a motion for an order to show cause re contempt sanctions and for attorneys’ fees, on the grounds that Woyak has refused to comply with and is in contempt of the judgment. The Association requests that the court enjoin Woyak from “[m]aintaining the [property] in an unclean and unsanitary condition, such that there is an excessive accumulation of waste, trash, garbage, and miscellaneous items, thereby constituting a fire, safety and health hazard, and likely causing a termite infestation”, “[u]sing multiple motor vehicles to store trash, clothing, equipment, and/or materials, in a manner which renders them visible to the public at large”, and “[r]efusing to allow entry by Association representatives into the [property] to ensure the unsanitary conditions are addressed and abated and that the [property] is properly cleaned, maintained, and rendered safe and sanitary.” (Notice at p. 1, ¶¶ (a)-(c).)

In support of the present motion, the Association submits the declaration of Robert Bartlein who is the Association’s property manager. (Bartlein Decl., ¶ 1.) Bartlein declares that Woyak has kept the property in an unclean and unsanitary condition, has continued to accumulate waste, trash, and miscellaneous items on various portions of the property thereby creating a fire, safety, and health hazard. (Id. at ¶ 11.) To support these contentions, Bartlein attaches two photographs of the property taken on June 13, 2023, which Bartlein asserts depict the unhealthy and unsafe conditions Woyak has created on the property. (Id. at Exh. 2.)

Bartlein further declares that the Association has made multiple informal attempts to convince Woyak to resolve the issues described above, to clean up the property, and to satisfy the amount of $13,464.50 awarded to the Association in the judgment, but Woyak has failed and refused to do so. (Bartlein Decl., ¶ 13.) Attached to the Bartlein declaration are three letters dated April 14, May 23, and June 9, 2023, in which Bartlein asserts the Association proposed that Woyak agree to a judgment payment plan and to maintain and clean up the property, offered to waive interest due on the judgment if Woyak made payments and cleaned up the property, and acknowledged receipt of a payment in the amount of $150 from Woyak. (Id. at ¶ 14 & Exh. 3.) Bartlein asserts that Woyak has failed and refused to clean up and maintain the property as required by the judgment. (Id. at ¶ 15.)

The Association also submits the declaration if its counsel to support the present motion. Counsel declares that the Association has incurred $1,312.50 in attorneys’ fees and $60.00 in costs in preparing the present motion. (Wisnicki Decl., ¶ 6.) Counsel anticipates that an additional 3.5 hours will be required for counsel to finalize the motion and appear at the hearing. (Ibid.)

Woyak has not filed an opposition or other response to the present motion.

Analysis:

In the motion, the Association contends that because Woyak has failed to comply with the injunctive terms of the judgment, Woyak is in contempt. The Association requests that the court find Woyak in contempt and fine Woyak the amount of $1,000 for each item of contempt. The Association further requests an award of attorneys’ fees and costs incurred by the Association to bring the present motion.

In support of the motion, the Association submits a request for judicial notice of the judgment and the notice of entry of judgment filed on July 26, 2019, further discussed above. (RFJN, ¶¶ 1, 2 & Exhs. A & B.) Though not necessary, the court will grant the Association’s request for judicial notice of these documents. (Evid. Code, § 452, subd. (d)(1).)

The of notice of a motion, other than for a new trial, must state “the grounds upon which it will be made, and the papers, if any, upon which it is to be based.” (Code Civ. Proc., § 1010, see also Cal. Rules of Court, rule 3.1110(a) [“[a] notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order”].) In addition, the motion must “state the basis for the motion and the relief sought[.]” (Cal. Rules of Court, rule 3.1112()d)(3).)

“The purpose of the notice requirements ‘is to cause the moving party to “sufficiently define the issues for the information and attention of the adverse party and the court.” ’ [Citations.]” (Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1277 (Kinda).) Therefore, “[a]s a general rule, the trial court may consider only the grounds stated in the notice of motion.” (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125 [a trial court is not required to consider grounds for relief not raised or sought by the moving party].)

In the notice of the present motion, the Association asserts that it seeks to enjoin Woyak from engaging in the specific conduct described in the notice which the Association contends constitutes grounds for holding Woyak in contempt of the judgment. Though the caption of the motion vaguely references “contempt sanctions” and “attorneys fees” without specifying an amount of sanctions of fees sought in the motion, the notice of the motion does not include any specific request or grounds for the imposition of fines or attorneys’ fees and costs. Notwithstanding whether the fines and attorney’s fees sought by the Association in the memorandum are recoverable under Code of Civil Procedure section 1218, the Association’s failure to includes these grounds for relief in the notice violates a “basic tenet” of motion practice requiring the court to decline considering the Association’s request for an order imposing fines and an award of attorneys’ fees against Woyak. (Kinda, supra, 247 Cal.App.4th at p. 1277.)

With respect to the Association’s request that the court enjoin Woyak from the conduct described in the notice and motion, “[a] judgment requiring performance of an act not described in subdivisions (a) to (d), inclusive, or requiring forbearance from performing an act, is enforceable as provided in Chapter 5 (commencing with Section 717.010) of Division 3.” (Code Civ. Proc., § 681.010, subd. (d).) Under Code of Civil Procedure section 717.010, “[a] judgment not otherwise enforceable pursuant to this title may be enforced by personally serving a certified copy of the judgment on the person required to obey it and invoking the power of the court to punish for contempt.” (Code Civ. Proc., § 717.010.)

Though the Association contends that Woyak is “clearly aware” of the judgment (see Motion at p. 7, ll. 26-27), and while it appears that the letters attached to the Bartlein declaration were sent to Woyak by certified mail, there exists no evidence or information to demonstrate that the Association personally served a certified copy of the judgment on Woyak as required under Code of Civil Procedure section 717.010. For example, the proof of service filed by the Association on November 8, 2023, indicates that the Association served a copy of the moving papers on Woyak by overnight delivery. However, there is no information showing personal service of a certified copy of the judgment on Woyak. This example is not intended to be exhaustive.

As the Association has failed to comply with the statutory requirements of Code of Civil Procedure section 717.010 before bringing the present motion, the motion is procedurally defective. Therefore, the court will deny the motion without prejudice to any future procedurally appropriate motion.