Raimova v. West Coast Towing Services CA4/3

Filed 3/26/21 Raimova v. West Coast Towing Services CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
RUHANGIZ RAIMOVA et al.,
Plaintiffs and Appellants, G058280, G058431
v. (Super. Ct. No. 30-2015-00797946)
WEST COAST TOWING SERVICES OPINION
INC., et al.,
Defendants and Respondents.
Appeal from a judgment of the Superior Court of Orange County, Walter P.
Schwarm, Judge. Affirmed.
Ruhangiz Raimova and Esmail Ghane in pro per., for Plaintiffs and
Appellants.
No appearance for Defendants and Respondents.
* * *
Plaintiffs Ruhangiz Raimova and Esmail Ghane’s vehicle was stolen,
recovered, and then stored on defendant West Coast Towing Services’ (West Coast)
facility. After the vehicle had been there 43 days, West Coast sold the vehicle. Plaintiffs
brought the underlying suit for conversion, claiming West Coast and defendant Clear
Choice Lien Services Inc. (Clear Choice), illegally sold the vehicle without notifying
them. The court granted summary judgment in favor of defendants, and plaintiffs
appealed.
Plaintiffs contend the court erred by granting summary judgment because
they never received notice that their vehicle had been recovered. The court found
defendants had complied with Civil Code section 3072 in sending out the required
notices and ultimately selling the vehicle. We agree. While plaintiffs’ evidence was
sufficient to establish they never received notice, it was not sufficient to show defendants
never sent notice to the addresses on file with the California Department of Motor
Vehicles (DMV). Defendants’ evidence demonstrated that they mailed the appropriate
notices. Thus, they never wrongfully exercised dominion over the vehicle, and
defendants were thereby entitled to judgment on the conversion claim.
Plaintiffs also complain about a condition the court imposed when it
granted their motion for leave to amend the complaint. Throughout the litigation, the
court and opposing counsel were under the impression that Ruhangiz Raimova was the
husband. The husband showed up at all the hearings and represented himself as
Raimova. On the day of the originally scheduled trial, it came out that, in fact, Raimova
is the wife, who, acting in propria persona, had not appeared at many hearings. The
husband’s name is Esmail Ghane. Afterward, Raimova filed a motion to amend the
complaint to add Ghane as a plaintiff. The court granted the motion on condition that
Raimova pay approximately $6,500 to compensate defendant Clear Choice for certain
hearings it attended that, in retrospect, were pointless because the actual plaintiff was not
there.
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On appeal, plaintiffs contend this was an abuse of discretion because the
owner of West Coast knew that Raimova was the wife. The court did not abuse its
discretion. Ghane lied to the court for two years about his identity. There was no
evidence that the owner of West Coast appeared at the hearings where Ghane
misrepresented his identity, and thus no evidence that the owner’s knowledge was shared
with counsel and the court. Accordingly, we affirm.
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FACTS
Plaintiffs’ complaint asserted three causes of action: conversion, equitable
possession, and for a temporary restraining order and preliminary injunction. Defendants
moved for summary judgment and offered evidence of the following material facts which
were not disputed by plaintiffs.
West Coast entered into a contract for towing services with the County of
Orange. West Coast was to provide prompt towing service for vehicles that were taken
into custody by the county, such as vehicles involved in collisions or disabled by any
1 Plaintiffs’ request that we take judicial notice of “the entire court records,
especially numerous Decls. By Aplts, & Aplts Counsels, . . . which was the subject of the
appeal in this case under case no 30-2015-00797946, and this court’s opinions of all prior
appeals filed in that case” is DENIED. Under California Rules of Court, rule
8.252(a)(2)(A), a request to take judicial notice must state “[w]hy the matter to be noticed
is relevant to the appeal.” Plaintiffs failed to explain why the “entire court records” on an
earlier appeal is relevant to the issue presented, i.e., whether the court erred in granting a
defendants’ motion for summary judgment. In their request, plaintiffs argue that “[t]he
statements and Declarations by appellants, trial counsels, and the court concerned the
relevance of the proposed investigation, appeal, review, what trial Aplts and Aplts’
counsel did present in the trial court in the past about 5 years, especially numerous
Declarations by Aplts and Aplts’ Counsel . . . and what impact there might have been on
credibility issues in the trial courts. The[re] never has been trial in this which is the
subject of this appeal.” Plaintiff’s explanation is insufficient. We are not required to sift
through five years of litigation and determine for ourselves what might be relevant to our
review of defendants’ motion for summary judgment.
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other cause, vehicles abandoned in public places or on private property, vehicles
impounded for evidence, or vehicles which, for any other reason, were within the
jurisdiction of the Orange County Sheriff’s Department (OCSD). On May 10, 2015, the
OCSD contacted West Coast to tow a recovered vehicle, a 1998 Toyota Camry (the
Subject Vehicle), to West Coast’s impound and storage facility. The OCSD directed
West Coast to place the Subject Vehicle in a secured “evidence hold” until the Subject
Vehicle could be examined.
Upon the towing and storing of a vehicle in an evidence hold, the OCSD
contacts the registered owner of the vehicle to advise the owner that the vehicle has been
located and taken to a secure facility for testing. The OCSD advises the owner that once
the vehicle has been released from the evidence hold, the owner can retake possession. If
the registered owner does not pick up the vehicle from the evidence hold location, the
vehicle is relocated to the general impound yard and, once in that yard, West Coast can
start charging impound fees. West Coast establishes lien rights once it has general
(nonevidentiary) holds on vehicles it tows. If the owner of the vehicle fails to pick up the
vehicle and pay for the tow and impound fees, West Coast has the right to foreclose on its
lien and sell the vehicle. If the value of the vehicle is determined to be $4,000 or less, the
hold period is 30 days. (Civ. Code, § 3072, subd. (c)(2).)
The OCSD conducted its evidentiary inspection of the Subject Vehicle and,
when no response was received from plaintiffs Ruhangiz Raimova or Esmail Ghane, the
OCSD told West Coast that it could move the Subject Vehicle to the unsecured impound
yard. West Coast established its lien rights on the Subject Vehicle after the OCSD
directed West Coast to remove the Subject Vehicle from the evidentiary hold to the
unsecured impound yard.
On May 18, 2015, West Coast contacted Clear Choice via electronic
transmission requesting it to act as a lien sale agent for the Subject Vehicle. West Coast
provided Clear Choice with the necessary information to secure the lien and to
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commence the 30-day hold because the Subject Vehicle was valued at $4,000 or less.
West Coast requested the lien be processed as a vehicle valued at $4,000 or less because
the OCSD had valued the Subject Vehicle between $0 and $500.
On May 19, 2015 Clear Choice received from the DMV the names and
addresses of all registered owners and legal owners and other “interested parties” in the
form of a “DMV Vehicle Registration Information” for the Subject Vehicle. Clear
Choice prepared the required DMV form for giving “Notice of Pending Lien Sale for
Vehicle Valued [at] $4,000 or Less,” which contained all information required under
Civil Code section 3072, including the name and address of plaintiff Ruhangiz Raimova,
other interested parties, and the DMV “Lien Sale Unit,” the date, time, and location at
which the vehicle would be publicly auctioned if not redeemed by the registered and/or
legal owner.
On May 20, 2015, Clear Choice mailed to plaintiff Ruhangiz Raimova the
“Notice of Pending Lien Sale for Vehicle Valued $4,000 or Less,” a blank “Declaration
of Opposition form,” and a return envelope preaddressed to the DMV. West Coast
received from Clear Choice a copy of the “Notice of Pending Lien Sale,” along with the
incomplete documents needed to complete a lien sale that indicated the date of mailing of
the notice was May 20, 2015, and that the date of sale for the Subject Vehicle was June
22, 2015. On June 11, 2015, West Coast posted the “Notice of Pending Lien Sale for
Vehicle Valued $4000 or Less” for the Subject Vehicle in a conspicuous place on West
Coast’s business premises, where the pending lien sale and public auction was to be
conducted.
2
West Coast utilized a California Highway Patrol form denominated “CHP
180” to provide this information to Clear Choice. Although not explained in the briefing,
a CHP 180 form “‘is a standardized form all law enforcement in California use for either
a stolen vehicle or if [law enforcement needs] to tow a vehicle or . . . recover a
vehicle . . . .’” (People v. Joseph (2019) 33 Cal.App.5th 943, 949.)
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On June 22, 2015, West Coast conducted a public auction for the sale of the
Subject Vehicle. The Subject Vehicle was sold at auction for $750 to a third party,
leaving an outstanding balance for storage and towing charges. The third party buyer
was provided with a “Certification of Lien Sale” as required by law.
West Coast first heard from plaintiffs on June 24, 2015, when they showed
up at the West Coast premises wanting to collect the Subject Vehicle.
In opposition to defendants’ summary judgment motion, plaintiffs offered
the following facts: No one informed either plaintiff before June 24, 2015 that the
Subject Vehicle was being held by defendants. The Subject Vehicle—a 1998 Toyota
Camry—was, in their opinion, worth $7,000.
In a detailed ruling, the court granted the motions for summary judgment.
The court found that Clear Choice never came into possession of the Subject Vehicle and
thus could not have exercised wrongful dominion over it, which defeated the conversion
claim. As to both defendants, the court found they complied with all notice requirements
under the Civil Code and thus never wrongfully exercised dominion over the Subject
Vehicle. Regarding the remaining causes of action, the court found that equitable
possession is not a cause of action, nor is a request for an injunction. The court entered
judgment for defendants, and plaintiffs appealed.
DISCUSSION
Plaintiffs argue the court erred because there are disputed issues of material
fact that require a trial. They offered their declarations stating they never received timely
notice that West Coast was in possession of their vehicle. We conclude plaintiffs’
evidence did not raise a material issue of fact to support a conversion claim and thereby
affirm the judgment. In a separate challenge, plaintiffs contend the court abused its
discretion in conditioning permission to file an amended complaint on plaintiffs paying
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approximately $6,500 to defendants. On this challenge, we conclude the court did not
abuse its discretion.
Summary Judgment
An appellate court reviews a grant of summary judgment de novo. (Guz v.
Bechtel National Inc. (2000) 24 Cal.4th 317, 334.)
Defendants submitted a statement of undisputed material facts pursuant to
Code of Civil Procedure section 437c, subdivision (b)(1). In response, plaintiffs
submitted a purported separate statement but did not dispute the evidence cited in
defendants’ separate statement. Instead, plaintiffs offered a generic response to each fact
set forth in defendants’ separate statement which, in various forms, was based on a short,
half-page declaration asserting plaintiffs never received notice of the sale and did not
know until June 24, 2015 that OCSD had recovered the Subject Vehicle. Plaintiffs also
asserted that the Subject Vehicle was worth $7,000, thereby requiring a longer hold
period before sale. Plaintiffs’ failure to dispute the evidence offered by defendant “may
constitute a sufficient ground, in the court’s discretion, for granting the motion.” (Code
Civ. Proc., § 473c, subd. (b)(3).) The court instead exercised its discretion to consider
the evidence plaintiffs did submit, which was the short, half-page declaration. The state
of the evidence at that point was essentially that defendants complied with all their legal
obligations to give notice, but plaintiffs never actually received notice. That is not
enough to establish a conversion claim.
“‘“‘Conversion is the wrongful exercise of dominion over the property of
another. The elements of a conversion claim are: (1) the plaintiff’s ownership or right to
possession of the property; (2) the defendant’s conversion by a wrongful act or
disposition of property rights; and (3) damages.’”’” (Lee v. Hanley (2015) 61 Cal.4th
1225, 1240.) “The act must be knowingly or intentionally done, but a wrongful intent is
not necessary.” (Taylor v. Forte Hotels International (1991) 235 Cal.App.3d 1119,
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1124.) The question, here, therefore, is simply whether defendants complied with the
statutory guidelines authorizing the sale of the Subject Vehicle, for if they did, the sale
was not wrongful, and the tort of conversion was not established.
Civil Code section 3068.1, provides, “Every person has a lien dependent
upon possession for the compensation to which the person is legally entitled for towing,
storage, or labor associated with recovery . . . of any vehicle subject to registration that
has been authorized to be removed by a public agency . . . .” (Id., subd. (a)(1).) “If the
vehicle has been determined to have a value not exceeding four thousand dollars
($4,000), the lien shall be satisfied pursuant to [Civil Code] Section 3072.” (Id., subd.
(b).)
Civil Code section 3072, in turn, describes the procedure for a lien sale of a
vehicle valued at $4,000 or less. First, the lienholder must apply to the DMV for a list of
addresses for all “registered and legal owners of record.” (Id., subd. (a).) “The
lienholder shall, immediately upon receipt of the names and addresses, send, by certified
mail with return receipt requested or by United States Postal Service Certificate of
Mailing, a completed Notice of Pending Lien Sale form, a blank Declaration of
Opposition form, and a return envelope preaddressed to the department, to the registered
owner and legal owner at their addresses of record with the department, and to any other
person known to have an interest in the vehicle.” (Id., subd. (b).) The statute then
specifies what information is required to be in the notices, including the date of the sale,
“which shall be set not less than 31 days, but not more than 41 days, from the date of
mailing.” (Id., subd. (c)(2).)
Here, the evidence showed defendants complied with these procedures.
The OCSD prepared the vehicle report listing West Coast as the storage facility and
valuing the Subject Vehicle between $0 and $500. (See Veh. Code, § 22670, subd. (a)
[“For lien sale purposes, the public agency causing the removal of the vehicle shall
determine if the estimated value of the vehicle that has been ordered removed, towed, or
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stored is five hundred dollars ($500) or less, over five hundred dollars ($500) but four
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thousand dollars ($4,000) or less, or over four thousand dollars ($4,000)].) West Coast
contacted Clear Choice and provided it with the CHP 180 form prepared by the OCSD.
Based on the information on that form, Clear Choice requested the registration
information from the DMV. The DMV provided information that the registered owner
was a third party, but that the vehicle had been purchased by “Raimova Ruhangiz.” The
only address information the DMV provided was a residential address in the City of
Laguna Beach. Notably, the address on file with the DMV did not include a zip code.
Clear Choice prepared a “Notice of Pending Lien Sale for Vehicle Valued $4000 or
Less.” Clear Choice mailed it to the name and address from the DMV file. Clear Choice
demonstrated its mailing by producing a certificate of mailing stamped by a United States
Post Office. Afterward, West Coast posted a timely notice of the lien sale on its property.
It then conducted the auction in accordance with the notices.
The fact that plaintiffs never saw the notice sent to them does not render
defendants liable for conversion. Defendants complied with the procedure set forth in
Civil Code section 3072. That statute also contains a procedure to dispute a lien sale.
(Id., subd. (c)(4)(C).) Plaintiffs never availed themselves of that procedure. Therefore,
defendants were authorized by statute to sell the vehicle. In other words, there was no
wrongful disposition of the Subject Vehicle, and thus no conversion.
$6,500 Condition on Leave to Amend
For almost two years, plaintiff Esmail Ghane misrepresented his identity to
the court and to opposing counsel. For that entire time, he personally appeared at
hearings and represented himself as Ruhangiz Raimova, who was the only named
plaintiff during that timeframe. Ghane is not a licensed attorney and thus cannot
3
If the value of the vehicle was truly $7,000, as plaintiffs contend, that error
would have been caused by the OCSD, not West Coast nor Clear Choice.
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represent another party in court. On the day of the originally scheduled trial, the court
noticed a woman sitting next to “Mr. Raimova.” After some prodding, it was revealed, to
the astonishment of both court and counsel, that she was the true plaintiff in the action.
The trial did not go forward at that time.
Afterward, the true plaintiff—Ruhangiz Raimova—filed a motion to amend
the complaint to add her husband, Ghane, as plaintiff. The court granted the motion on
condition that Raimova pay Clear Choice $6,519.69, which represented the attorney fees
Clear Choice had incurred in sending counsel to three hearings that Raimova did not
personally attend, and that, because the true plaintiff was not in attendance, were
meaningless.
Code of Civil Procedure section 473 states: “The court may, in furtherance
of justice, and on any terms as may be proper, allow a party to amend any pleading or
proceeding by adding or striking out the name of any party . . . .” (Id. subd. (a)(1).) “The
trial court has discretion to permit or deny the amendment of the complaint, but instances
justifying the court’s denial of leave to amend are rare. [Citation.] Similarly, the court’s
discretion to impose conditions on leave to amend the complaint extends only to those
conditions that are just, i.e., intended to compensate the defendants for any inconvenience
belated amendment may cause.” (Armenta Ex. Rel. City of Burbank v. Mueller Co.
(2006) 142 Cal.App.4th 636, 642.)
The court did not abuse its discretion. Plaintiffs contend that when they
first met with the proprietor of West Coast in July 2015, it was clear that Raimova was
the wife. According to plaintiffs, that conversation took place in their shared native
language, in which Ruhangiz is clearly a woman’s name. However, that does not change
the fact that Ghane misrepresented his identity to the court and to opposing counsel.
There is nothing in the record to suggest that West Coast’s proprietor attended the
hearings in question so as to be able to correct the misrepresentation. Opposing counsel
attested to being surprised at the revelation, and the court accepted that as true. Under the
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circumstances, given that Raimova sent a nonparty to act in her stead, and Ghane
misrepresented his own identity, it was entirely fair to have them bear the unnecessary
costs caused by their scheme. There was no abuse of discretion.4
DISPOSITION
The judgment is affirmed. There being no appearance by defendants on
appeal no costs are awardable to them. Plaintiffs shall bear their own costs on appeal.
IKOLA, J.
WE CONCUR:
MOORE, ACTING P. J.
FYBEL, J.
4 Scattered throughout plaintiffs’ sprawling, 56-page brief are a number of
other claims of error. However, all other claims are either inadequately briefed,
inadequately supported by references to the record, necessarily harmless, or some
combination of the three. For example, plaintiffs’ claim it was error to continue the
original trial date and error to relieve Raimova’s original attorney on the eve of the
originally scheduled trial (which was then continued). But they have not identified any
prejudice from those rulings. Plaintiffs also devote a significant portion of their brief to
arguing that their prior counsel rendered ineffective assistance of counsel. However, an
ineffective assistance of counsel claim is not available in an ordinary civil proceeding
because there is no constitutional right to counsel. (See Chevalier v. Dubin (1980) 104
Cal.App.3d 975, 978-979 [“It should be noted that the right to counsel constitutional
provisions refer specifically to criminal prosecutions, and hence do not apply to civil
proceedings”].)
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