Strategic Realty Fund, LLC v. Sarmiento et al
Filing
19
ORDER Granting Plaintiff's Motion For Summary Judgment re 12 ."On the basis of the foregoing, Plaintiff Strategic Realty Fund, LLC's Motion for Summary Judgment, filed on February 7, 2018, is HEREBY GRANTED. Plaintiff is entitled to a judgment for possession and writ of possession. Plaintiff is ORDERED to submit a proposed order by August 21, 2018. The Court will schedule a status conference to address trial on damages for Plaintiff's Count II claim (trespass )."Signed by JUDGE LESLIE E. KOBAYASHI on 7/31/2018. (cib, )COURTS CERTIFICATE of Service - Non-Registered CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
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Plaintiff,
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vs.
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AGAPITO H. SARMIENTO, JR;
LINDA Y. SARMIENTO, PETER K. )
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SARMIENTO; JOHN DOES 1-10,
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JANE DOES 1-10, DOE
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CORPORATIONS 1-10, DOE
PARTNERSHIPS 1-10, DOE “NON- )
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PROFIT” CORPORATIONS 1-10,
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DOE ASSOCIATIONS 1-10, and
DOE GOVERNMENTAL ENTITIES 1- )
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10,
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Defendants.
_____________________________ )
STRATEGIC REALTY FUND, LLC,
CIVIL 17-00545 LEK-RLP
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Before the Court is Plaintiff Strategic Realty Fund,
LLC’s (“Plaintiff”) Motion for Summary Judgment (“Motion”), filed
on February 7, 2018.
[Dkt. no. 12.]
On February 9, 2018, this
Court issued an entering order directing Plaintiff to file a
supplemental memorandum addressing whether all parties have been
served.
[Dkt. no. 15.]
On February 23, 2018, Plaintiff filed
its Supplemental Memorandum to the Motion for Summary Judgment
[Dkt. 12] Per Court’s Order Directing Plaintiff to File a
Supplemental Memorandum [Dkt. 15] (“Supplemental Memorandum”).
[Dkt. no. 16.]
Pro se Defendants Agapito H. Sarmiento, Jr.,
Linda Y. Sarmiento, and Peter K. Sarmiento (“Defendants”) have
not filed a response to the Motion.
On April 6, 2018, this Court
issued an entering order: vacating the hearing on the Motion
because Defendants had not filed their memorandum in opposition
by the April 2, 2018 deadline; and informing the parties that the
Motion will be considered as an unopposed, non-hearing matter.
[Dkt. no. 17.]
Plaintiff’s Motion is hereby granted for the
reasons set forth below.
BACKGROUND
On October 13, 2017, Plaintiffs filed their Complaint
for Ejectment (“Complaint”) in state court.
[Notice of Removal
Under 28 USC, 1331 - 1446 (“Notice of Removal”), filed 11/2/17
(dkt. no. 1), Exh. 1.]
Plaintiff asserts claims for ejectment
(“Count I”) and trespass (“Count II”).
In the instant Motion,
Plaintiff seeks summary judgment as to Count I and summary
judgment as to liability on Count II.
Plaintiff acquired title to certain real property
located at 247 Ainahou Place, Wailuku, Hawai`i 96793, described
as Tax Map Key Number (2) 3-4-21:80 (“Property”) from Bank of
America, N.A. (“BoA”) in a limited warranty deed (“Deed”) dated
August 24, 2017 and recorded in the State of Hawai`i Bureau of
Conveyances (“BOC”).
[Pltf.’s Separate & Concise Statement of
Facts in Supp. of Motion (“Pltf.’s CSOF”), filed 2/7/18 (dkt.
no. 13), at ¶ 1.]
Plaintiff “attempted to take possession of the
Property soon after August 24, 2017 but could not because
Defendants occupy and possess the Property.”
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[Id. at ¶ 2.]
On March 4, 2013, BoA commenced a judicial foreclosure
action in state court against Defendants regarding the Property
(“Foreclosure Action”).
[Id. at ¶ 3.]
On June 25, 2014, the
state court granted BoA’s motion for summary judgment, insofar as
it declared the mortgage foreclosed and ordered the Property to
be sold at public auction.
[Id. at ¶ 4.]
BoA purchased the Property at the public auction for
$326,958.97.
[Id. at ¶ 9.]
On June 16, 2016, the state court
issued an order: 1) confirming and ratifying the foreclosure sale
of the Property to BoA; 2) declaring that Defendants have no
right or interest in the Property; and 3) issuing a writ of
possession (“6/16/16 State Court Order”).1
[Id. at ¶ 5.]
The
state court entered a final judgment in the Foreclosure Action.
[Id. at ¶ 6.]
The state court ruled the foreclosure “sale was
‘legally made and fairly conducted.’”
6/16/16 State Court Order).]
[Id. at ¶ 9 (quoting
“BoA took title to the Property via
a Commissioner’s Deed dated June 15, 2017,” which was recorded in
the BOC on August 11, 2017.
[Id. at ¶ 8.]
“As of June 25, 2014, Defendants were in default under
a mortgage and note held by BoA.”
[Id. at ¶ 7.]
The state court
converted “all sums due and owing to BoA [into] liens on the
1
The 6/16/16 State Court Order is attached to Plaintiff’s
CSOF as Exhibit E to the Declaration of Grant Fasi Allison.
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Property to be paid at the date of closing of the foreclosure
sale.”
[Id.]
Defendants have no landlord-tenant relationship with
Plaintiff.
[Id. at ¶ 13.]
STANDARD
Pursuant to Federal Rule of Civil Procedure 56(a), a
party is entitled to summary judgment “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
In
determining whether there is a genuine issue of material fact, a
court must view the record in the light most favorable to the
non-moving parties.
Cir. 2013).
Crowley v. Bannister, 734 F.3d 967, 976 (9th
This district court has stated:
Summary judgment must be granted against a party
that fails to demonstrate facts to establish what
will be an essential element at trial. See
Celotex [Corp. v. Catrett], 477 U.S. [317,] 323
[(1986)]. A moving party has both the initial
burden of production and the ultimate burden of
persuasion on a motion for summary judgment.
Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210
F.3d 1099, 1102 (9th Cir. 2000). The burden
initially falls on the moving party to identify
for the court “those portions of the materials on
file that it believes demonstrate the absence of
any genuine issue of material fact.” T.W. Elec.
Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809
F.2d 626, 630 (9th Cir. 1987) (citing Celotex
Corp., 477 U.S. at 323). “A fact is material if it
could affect the outcome of the suit under the
governing substantive law.” Miller [v. Glenn
Miller Prods., Inc.], 454 F.3d [975,] 987 [(9th
Cir. 2006)].
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Rodriguez v. Gen. Dynamics Armament & Technical Prods., Inc., 696
F. Supp. 2d 1163, 1176 (D. Hawai`i 2010) (some citations
omitted).
This Court has stated:
When a motion for summary judgment is
unopposed, the motion should be granted only when
the movant’s papers are themselves sufficient to
support the motion and they do not reveal a
genuine issue of material fact. In re Rogstad,
126 F.3d 1224, 1227 (9th Cir. 1997) (noting that
it is in error to grant a motion for summary
judgment simply because the opponent failed to
oppose the motion); Cristobal v. Siegel, 26 F.3d
1488, 1494-95 & n.4 (9th Cir. 1994) (noting that
an unopposed motion may be granted only after the
court determines that there are no material issues
of fact).
Additionally, in a motion for summary
judgment, “material facts set forth in the moving
party’s concise statement will be deemed admitted
unless controverted by a separate concise
statement of the opposing party.” L.R. 56.1(g)
(effective Dec. 1, 2009). Thus, while this court
is not permitted to grant an unopposed motion for
summary judgment as a matter of right, Siegel, 26
F.3d at 1494-95, it must deem all facts proffered
in [the defendant’s] concise statement as admitted
by [the plaintiff]. Therefore, the court must
determine whether the facts, as asserted in [the
defendant’s] concise statement, warrant a grant of
summary judgment.
Smith v. Clinton, Civil No. 10-00587 LEK-BMK, 2011 WL 3290522, at
*9 (D. Hawai`i July 31, 2011) (alterations in Smith) (citation
omitted).
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DISCUSSION
I.
Preliminary Matters
Before addressing the merits of the Motion, the Court
first addresses whether Plaintiff has sufficiently served process
on Defendants.
See S.E.C. v. Ross, 504 F.3d 1130, 1140 (9th Cir.
2007) (establishing personal jurisdiction over the defendant
requires service of process in substantial compliance with Fed.
R. Civ. P. 4).
Plaintiff has submitted copies of the return and
acknowledgment of service filed by its process server for each
defendant.
[Supplemental Memorandum, Decl. of Grant Fasi Allison
(“Allison Decl.”), Exhs. C, D, E.]
Plaintiff shows Defendant
Agapito H. Sarmiento, Jr. personally received service of process,
and Defendants Linda Y. Sarmiento and Peter K. Sarmiento received
service “by leaving copies [of the summons and complaint] at the
individual’s dwelling house or usual place of abode with some
person of suitable age and discretion then residing therein,”
specifically, Agapito H. Sarmiento, Jr.
See Haw. R. Civ.
P. 4(d)(1)(A); see also Fed. R. Civ. P. 4(e)(1) (permitting
service pursuant to state law).
Defendants have not challenged
the sufficiency of service of process.
Plaintiff has shown
substantial compliance with Fed. R. Civ. P. 4.
Because Defendants have not controverted any of the
material facts set forth in Plaintiff’s CSOF, those facts are
deemed admitted.
See Local Rule LR56.1(g) (“For purposes of a
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motion for summary judgment, material facts set forth in the
moving party’s concise statement will be deemed admitted unless
controverted by a separate concise statement of the opposing
party.”).
II.
Ejectment
In order to maintain an ejectment action, the
plaintiff “must necessarily prove that [he or she]
owns the parcel[] in issue,” State v. Magoon, 75
Haw. 164, 175, 858 P.2d 712, 718–19 (1993); see
State v. Midkiff, 49 Haw. 456, 460, 421 P.2d 550,
554 (1966), meaning that he or she must have “the
title to and right of possession of” such parcel,
Carter v. Kaikainahaole, 14 Haw. 515, 516 (Haw.
Terr. 1902). Additionally, the plaintiff must
establish that “possession is unlawfully withheld
by another.” Id.
Kondaur Capital Corp. v. Matsuyoshi, 136 Hawai`i 227, 241, 361
P.3d 454, 468 (2015) (alterations in Kondaur Capital).
has shown it owns the Property by virtue of its Deed.
Decl., Exh. A.]
Plaintiff
[Allison
Defendants admit no landlord-tenant relationship
exists between Plaintiff and Defendants, and only challenge
Plaintiff’s ownership of the Property.
[Notice of Removal at 3.]
Plaintiff has sufficiently shown Defendants unlawfully withheld
possession of the Property.
There being no dispute of material
fact, Plaintiff is entitled to summary judgment on Count I.
Plaintiff is entitled to a judgment for possession and writ of
possession in its favor.
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III. Trespass
This Court has stated:
“One is subject to liability to another for
trespass, irrespective of whether he thereby
causes harm to any legally protected interest of
the other, if he intentionally[:] (a) enters land
in the possession of the other, [or] . . .
(b) remains on the land[.] . . .” Restatement
(Second) of Torts § 158 (1965); see also Memminger
v. Summit at Kaneohe Bay Ass’n, 129 Hawai`i 426,
No. 30383, 2013 WL 2149732, at *3 (Hawai`i. Ct.
App. May 17, 2013) (discussing Restatement
(Second) of Torts § 158 cmt. f).
Lowther v. U.S. Bank N.A., 971 F. Supp. 2d 989, 1016 (D. Hawai`i
2013) (alterations in Lowther).
In affirming an award of damages
for trespass and ejectment where foreclosed mortgagees refused to
surrender possession of certain real property following a
foreclosure sale, the Hawai`i Supreme Court stated: “[d]amages
may . . . be awarded in an ejectment suit for all lost profits
and damages allegedly sustained by the plaintiff due to the
defendant’s wrongful possession of the property in question.”
Krog v. Koahou, No. SCWC–12–0000315, 2014 WL 813038, at *3
(Hawai`i Feb. 28, 2014) (citation and internal quotation marks
omitted).
Defendants have intentionally remained on Plaintiff’s
land.
There being no dispute of material fact, Plaintiff is
entitled to summary judgment as to liability on Count II.
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CONCLUSION
On the basis of the foregoing, Plaintiff Strategic
Realty Fund, LLC’s Motion for Summary Judgment, filed on
February 7, 2018, is HEREBY GRANTED.
Plaintiff is entitled to a
judgment for possession and writ of possession.
Plaintiff is
ORDERED to submit a proposed order by August 21, 2018.
The Court
will schedule a status conference to address trial on damages for
Plaintiff’s Count II claim (trespass).
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, July 31, 2018.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
STRATEGIC REALTY FUND, LLC VS. AGAPITO H. SARMIENTO, JR., ET AL;
CIVIL 17-00545 LEK-RLP; ORDER GRANTING PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT
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