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Filed 5/12/17 AVMGH II Limited Partnership v. Hohn CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO
AVMGH II LIMITED PARTNERSHIP,
Plaintiff and Respondent,
v.
ROBERT HOHN,
Defendant and Appellant.
E064064
(Super.Ct.No. RIC1505764)
OPINION
APPEAL from the Superior Court of Riverside County. Daniel A. Ottolia, Judge.
Dismissed.
Law offices of Thomas Y. Barclay and Thomas Y. Barclay; Law Offices of
Jeffrey A. Coleman and Jeffrey A. Coleman for Defendant and Appellant.
Hart│King, C. William Dahlin, and Boyd L. Hill for Plaintiff and Respondent.
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Defendant and appellant, Robert Hohn, complained to departments of the Corona
city government (the city) about allegedly illegal activities on property owned by plaintiff
and respondent, AVMGH II Limited Partnership (AVMGH or the partnership). Robert
Hohn is a limited partner of AVMGH, but does not have authority to act on its behalf.
The city inspected the property, found numerous non-complying uses, and began the
process of obtaining compliance. As a result, some businesses which had been paying
rent to AVMGH relocated.
AVMGH sued Robert Hohn for breach of contract and interference with business
relations. According to the complaint, Robert Hohn breached the limited partnership
agreement by holding himself out as an authorized representative of the partnership in
seeking to have the city inspect the property and then assisting in the inspections.
Robert Hohn filed a special motion to strike both causes of action under Code of
Civil Procedure section 425.16 (section 425.16). The trial court concluded Robert
Hohn’s conduct was protected petitioning activity, but denied the motion on the ground
AVMGH had established a likelihood of success on the merits.
Robert Hohn appealed.
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I
FACTUAL BACKGROUND
A. The Property and the Partnership
Respondent AVMGH owns 144 acres at 1501 and 1601 Sherborn Street in Corona
(the property).
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The partnership’s name derives from the initials of the parents of the
principal disputants, appellant Robert Hohn and his older brother, Bruce Hohn. Bruce
Hohn manages the partnership. Robert Hohn is a limited partner, but has no managerial
authority.
The property is a vacant lot surrounded by excavation and industrial uses.
According to Bruce Hohn, the lot is “devoid of vegetation or water, except for an
approximate 30 acre 11 feet deep ‘lake’ that exists in a thirty foot deep depression created
by prior sand and gravel mining located at the center rear of the property.” Vulcan
Materials, Inc. (Vulcan) has gravel mining operations on land to the north, and
Robertson’s Ready Mix operates a concrete mixing plant on land to the south.
The partnership allowed third parties limited use of the property in return for
monthly rent—or “licensing fees,” as the partnership designates the payments.
According to Bruce Hohn, the partnership has allowed trucking, construction, and truck
repair companies to park trucks, equipment, and trailers on the property since the 1970’s.
He says those uses were lawful when they began and remained lawful as pre-existing

1 The background facts come from the declarations and exhibits the parties
submitted in connection with appellant’s anti-SLAPP motion.
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uses when the city revised its development ordinance in 2001. The partnership submitted
eight agreements showing it had allowed third parties to park trucks, trailers, and
equipment on the property and, in one case, to make concrete parking lot bumpers. Bruce
Hohn said he had discussed those businesses with Robert Hohn, who was aware the
income compensated Bruce Hohn for his work as the authorized representative of
AVMGH partnerships.
The partnership had plans to regrade the property, so it could be put to use as an
industrial building site. The partnership was in negotiations with a developer who would
undertake a development review with the city. In addition, Vulcan had expressed interest
in expanding its operations onto part of the property.
B. The Inspections
The city inspected activities on the property on three occasions between February
and April 2015.
On February 20, 2015 staff from the city’s Code Enforcement Division (the
division) inspected 1601 Sherborn Street in response to a complaint. The code
enforcement case sheet for the property lists Bruce Hohn as the owner and Robert Hohn
as the complainant. Four days after the inspection, Marc Ilagan of the division notified
Bruce Hohn and the partnership they found several violations of the municipal code,
including concrete pipe manufacturing, truck storage, contractor’s offices, rock crushing,
operation of a car wash, use of the property for living purposes, and illegal dumping of
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various materials. Ilagan’s letter informed the partnership of actions needed to correct
the problems.
On February 27, 2015, after the first inspection by the division, Robert Hohn’s
attorney sent a letter to the fire marshal of the Corona Fire Department. The letter
reported Robert Hohn had conducted an inspection of the property and found numerous
violations related to the handling and maintenance of hazardous materials. The letter
requested the fire marshal conduct its own inspection to ensure compliance.
On March 12, 2015, at Bruce Hohn’s request, “city staff members from the Code
Enforcement Department, the Fire Department, the Planning Department, and the
Building Division, along with the city’s environmental compliance coordinator and
principal civil engineer” held a follow-up meeting to discuss the February 24 notice of
violations. At that meeting, the city advised the partnership it would inspect the property
again at the conclusion of the meeting and that “re-inspection would occur in the future to
determine if any violations had been abated.” Bruce Hohn was aware there would be
future inspections and expressed no objection. Bruce Hohn “indicated that [he] would
immediately begin abatement actions which would be apparent upon re-inspection of the
Property.”
The fire department and building division conducted the March 12, 2015
inspection. The code enforcement case sheet notes the fire inspector ordered one
business to cease operations immediately due to a hazardous materials issue and the
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building inspector advised some electrical uses were not permitted. Marc Ilagan noted he
would be conducting a re-inspection of the property.
On March 19, 2015, Bruce Hohn sent the city “copies of eviction notices to the
business[es] at the location.”
On April 28, 2015, representatives from the city and Riverside County inspected
the property again. The inspection team included staff from the city’s Fire Department,
Building Division, and Public Works Department, and the Riverside County Hazardous
Materials Branch. Inspectors “found numerous types of businesses conducting
operations . . . in violation of [the Corona Municipal Code], including, but not limited to:
concrete manufacturing, temporary batch plant, truck storage, trucking companies,
contractors’ offices (occupied and abandoned), and contractor’s storage yards.
Additional prohibited uses were observed, including use of the Property for living
purposes (evidenced by trailers), discharge of unknown liquid from the trailer(s), storage
of unknown chemicals, storage of containers of oil, and unmarked drums, tires, trash,
unpermitted electrical structures, storage of abandoned, wrecked and dismantled vehicles
and trucks, refuse and waste, truck and trailer repair, and washing and cleaning of
trucks.” They also observed a truck salvage business was “storing inoperable vehicles,
allowing a sand bag company . . . to operate . . . on the premises, allowing people to live
and occupy trailers and motorhomes on the premises, has constructed accessory buildings
and is conducting an auto repair business all in violation of the Corona Municipal Code.”
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On June 11, 2015, the division sent a final notice of violation addressed to Bruce
Hohn and the partnership. The notice letter sets out the details of all three inspections
and the violations discussed above and demanded the partnership “immediately cease and
desist and remove all business operations” noted at the April 28 inspection. The notice
letter set a deadline of July 13, 2015 for compliance.
C. The Consequences
According to Bruce Hohn, the partnership subsequently lost income from
businesses that had been operating on the property. He said “some businesses have left
the property and are no longer pay[ing] licensing fees to AVMGH II. Titan Materials left
the property, and AVMGH II no longer receives their $2,500 per month licensing fee. In
addition, the concrete block company and the concrete manhole company found a
different property . . . and have set up operations in that location, causing AVMGH II to
lose $4,000 per month . . . Also, another trucking company, CCC Trucking left the
property and is no longer paying its $2,500 per month licensing fee.”
Bruce Hohn said these events have also damaged relations between the partnership
and the city.2
He said they “have caused City officials to be at odds with AVMGH II at
the precise time when AVMGH II is negotiating with developers and Vulcan for
development of the AVMGH II Property and when AVMGH II will need to negotiate and
deal with the City regarding development entitlements for each development project. I

2 Respondent requests we take judicial notice of an email communication between
appellant and the city prior to the actions which caused the filings in this matter. Due to
the dismissal of this appeal, we decline to do so.
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have had to spend extra time and money and hire consultants and legal counsel to meet
with the City to resolve the issues created by Robert J. Hohn’s unpermitted and wrongful
actions and to put AVMGH II and the City back on a constructive path.”
D. The Lawsuit
On May 14, 2015, the partnership sued Robert Hohn for breach of the AVMGH
limited partnership agreement and for interfering with its business relationships with the
companies that had been operating on the property.
Article 7.2 of the AVMGH II Limited Liability Partnership Agreement
(the agreement) provides: “The Limited Partners shall take no part in the conduct or
control of the Business and shall have no right or authority to act for or to bind the
Partnership in any manner whatsoever. Any Partner who acts beyond the scope of the
authority granted by this Agreement shall, in addition to any other remedy available to
the Partnership or other Partners, be liable in damages to the Partnership and each other
Partner for any loss or damages that they may incur or suffer as a consequence of such
act.”
Article 7.4 of the agreement provides: “The General Partner may terminate the
interest of a Limited Partner and expel such Partner for . . . interfering in the management
of the Limited Partnership affairs or by holding themselves out to others as having the
power to act for or bind the Partnership . . . [or] [¶] . . . engaging in conduct which tends
to bring the Partnership into disrepute.”
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1. Breach of contract claim
The partnership alleged Robert Hohn is a limited partner of AVMGH (which he
does not contest) and breached articles 7.2 and 7.4 of the agreement “by holding himself
out to the City of Corona as the authorized representative of AVMGH II . . . to induce
City of Corona code enforcement officers to drive off individuals and businesses which
were licensed by AVMGH II to park their vehicles, equipment and trailers on the vacant
portion of the AVMGH II Property . . . [and as a means of] allow[ing] and encourag[ing]
the City of Corona code enforcement officers to conduct an unauthorized warrantless
inspection and wrongful citation of those individuals and business[es] licensed by
AVMGH II to occupy the AVMGH II Property.”
The partnership claimed as a proximate cause of the breach, it “lost licensing fees
that would have been earned from the use of the AVMGH II Property by those
individuals and businesses who withdrew from the property as a result of the improperly
obtained notices of violation.” It also alleged it is “entitled to expel Defendant Robert J.
Hohn for interfering with the management of AVMGH II affairs and for holding himself
out to others as having the power to act for or bind AVMGH II, pursuant to Section 7.4
(a) of the [agreement].”
2. Interference with business relationship claim
The partnership alleged it had ongoing license agreements with businesses
allowing them to use the property, and Robert Hohn “intentionally interfered with those
license agreements and business relationships by initiating a complaint with the City of
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Corona and by inviting the City of Corona code enforcement officers onto the
AVMGH II Property for a warrantless inspection, while at the same time representing
himself to be an authorized representative of AVMGH II . . . with the intent to harm
AVMGH II financially and to induce those [businesses to] cease[] to use [the property]
and [to cease paying] license fees to AVMGH II.” The partnership sought compensatory
damages and also sought punitive damages on the ground Robert Hohn acted
maliciously.
3. Robert Hohn’s anti-SLAPP motion
On July 12, 2015, Robert Hohn responded by filing a motion to strike the
complaint under section 425.16. He contended reporting violations to the city and
encouraging it to enforce the law is protected activity even if it injured the partnership.
He also contended the partnership could not demonstrate a likelihood of prevailing on the
merits because—among other reasons—it could not present evidence showing his
conduct caused the injury.
In support of his motion Robert Hohn submitted letters to Bruce Hohn and the
partnership from the division, which set out the city’s inspections and findings as we
described them in part I.B.
4. AVMGH’s evidence in opposition
In opposition to the motion, the partnership contended the focus of the complaint
was the fact that Robert Hohn held himself out as an authorized representative of the
partnership in order to obtain inspections and then to gain entry to the property by
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inspectors. The partnership argued these acts breached the agreement and caused the
injury.
To support its allegations, the partnership submitted the February 27, 2015 letter
from Robert Hohn’s attorney to the fire marshal for the City of Corona Fire Department.
The letter reports Robert Hohn—who once conducted inspections for a fire department—
and someone described as “another qualified individual” inspected the property on
December 31, 2014 and found several apparent code violations related to the storage and
clean-up of hazardous materials. It described the property as “[o]wned by several
entities, including a trust,” described Robert Hohn as a person who “has an interest in
those entities as an owner and beneficiary,” and said Robert Hohn “is concerned about
the Property’s ongoing maintenance and conformity to the law.” The letter requested, on
Robert Hohn’s behalf, that the fire department inspect the property to ensure the
violations would be rectified.
Bruce Hohn and the partnership also point to Robert Hohn’s conduct at the April
28 inspection. According to Dennis Beck, who was working on the property the day of
the April 28 inspection, “The City official that appeared to be in charge introduced to me
a mostly bald-headed gentleman . . . identified as Robert Hohn. The City official told me
that Robert Hohn was the ‘authorized representative’ of the property owner. The person
identified as Robert Hohn nodded his head in approval of that statement. The City
officials then proceeded to go around accompanied by Robert Hohn to different
businesses located on the AVMGH II property. The City officials inspected and issued
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notices to various businesses.” The trial court excluded Dennis Beck’s declaration as
hearsay.
In response, Robert Hohn admitted he was present for the April 28 inspection, but
denied he held himself out as the representative of the partnership. He denied hearing a
city official say he was a representative of the partnership and also denied he had nodded
in agreement with that statement. He said, “I have no idea what anyone from the City of
Corona told Mr. Beck and I was not in the vicinity of any conversation between anyone
from the City of Corona and Mr. Beck.”
5. The trial court ruling
The trial court ruled Robert Hohn’s conduct was protected under the anti-SLAPP
statute, but denied the motion based on its finding the partnership had shown a likelihood
of prevailing on the merits.
On the first prong, the court found Robert Hohn “is being sued for a protected
activity under C.C.P. section 425.16 paragraph (b)(1). His complaint to the city, which
plaintiff claims are untrue, extortion, or a breach of contract, fit within the statutory
definition of any written or oral statement or writing made before a legislative, executive,
or judicial proceeding, or any other official proceeding authorized by law.”
On the second prong, the court found the partnership “present[ed] evidence that
the defendant was not the owner of the property, or authorized on behalf of the
partnership to act on its behalf. The opposition also sufficiently points to the provisions
in the limited partnership agreement which prohibit the defendant from dealing with third
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parties, taking part in partnership business, acting for the partnership in any manner,
interfering in the management of the partnership affairs, engaging in conduct which tends
to bring the partnership into disrepute, engaging in conduct which tends to subject the
partnership to legal proceedings.” The court held “[c]ontacting the City to expose the
partnership to investigation and incurring the cost of defending itself may be seen as a
breach of any or all of the partnership rules that I just enumerated.” The court also found
the “letter from Robert Hohn’s attorney to the City is certainly a claim of ownership
interest and implies that, as an owner, Robert Hohn has the authority an owner would
have.” Accordingly, the trial court denied the motion to strike.
II
REQUEST FOR DISMISSAL
After this matter had been assigned to chambers and we had prepared our tentative
opinion, appellant filed a request for dismissal notifying us the respondent had filed a
dismissal, with prejudice, of the case in the Superior Court three weeks earlier.
An appellant may not dismiss an appeal as a matter of right. (Huschke v. Slater
(2008) 168 Cal.App.4th 1153, 1160, 1163 [imposing $6,000 sanctions on attorney for
unreasonable delay in notifying appellate court that parties had settled and dismissed the
underlying case].) California Rules of Court, rule 8.244(c)(2) provides that upon
receiving a request to dismiss, “the court may dismiss the appeal and direct immediate
issuance of the remittitur.” (Italics added.) Here, we exercise our discretion to grant
appellant’s request and direct the remittitur be issued immediately.
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III
DISPOSITION
We dismiss the appeal and direct the clerk of this court to issue the remittitur
immediately. The parties will bear their own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J.
We concur:
RAMIREZ
P. J.
FIELDS
J.