Gregory Totten vs Todd Alan Duell
Case No: VENCI0051030
Hearing Date: Wed Oct 17, 2018 9:30

Nature of Proceedings: OSC why Lien on property of a public officer should not be stricken or released

TENTATIVE RULING: The petition of Gregory Totten is granted. The three UCC-1 Statements filed against petitioner’s property by respondent Todd Alan Duell are ordered stricken and released. Petitioner is awarded civil penalties against respondent in the sum of $15,000, plus attorney’s fees (to be determined by separate motion). In addition, respondent is permanently enjoined from filing or recording any further UCC statements or other purported liens or encumbrances against any current or former County of Ventura employees without obtaining prior leave of court.

BACKGROUND:

Petitioner Gregory Totten (“Totten”) is the District Attorney of Ventura County, California. Respondent Todd Alan Duell (“Duell”) is a resident of San Diego County. In 2016, Duell was arrested by the Ventura County Sheriff’s Department after allegedly making criminal threats by phone to an employee of a financial services company in Moorpark, California. Duell is currently being prosecuted for the alleged offense by the Ventura County District Attorney’s Office, People v. Todd Alan Duell, Ventura Superior Court Case No. 2016004124. Following his arrest, Duell drafted and filed with the California Secretary of State three separate UCC notices of encumbrance against Totten’s property, naming Totten as a secured debtor of “Todd Alan Duell,” “Todd Duell,” and “Duell Family Trust.” Totten contends that the notices of encumbrance are false and fraudulent and were filed for the sole purpose of harassing him or hindering him in the discharge of his duties.

Totten now requests an order striking and releasing the encumbrances and an order awarding civil penalties and attorney’s fees against Duell. In addition, Totten requests that an injunction be issued barring Duell from filing, without leave of court, any further UCC notices of encumbrance or other liens naming any County of Ventura employee as a debtor.

On August 20, 2018, this court issued an Order to Show Cause why the encumbrances on petitioner’s property should not be stricken and released and why the other relief requested in the petition should not be granted. The Order to Show Cause was personally served on Duell on September 17, 2018.

ANALYSIS:

It is unlawful for any person to file a false lien or encumbrance with the intent of harassing or hindering a public officer or employee in the discharge his or her official duties. Code of Civil Procedure Section 765.010 provides:

“(b) A person shall not file or record, or direct another to file or record, a lawsuit, lien, or other encumbrance, including a notice of lis pendens, against another person or entity knowing it is false, with the intent to harass the person or entity or to influence or hinder the person in discharging his or her official duties if the person is a public officer or employee.

“(c)(1) A person or entity whose property is subject to a lien or encumbrance in violation of this section may petition the superior court of the county in which the person or entity resides or in which the property is located for an order, which may be granted ex parte, directing the lien or other encumbrance claimant to appear at a hearing before the court and show cause why the lien or other encumbrance should not be stricken and other relief provided by this article should not be granted.”

If, on petition, the court determines that a lien or other encumbrance is in violation of Section 765.010, the court shall issue an order striking and releasing the lien or other encumbrance and may award costs and reasonable attorney’s fees to the petitioner, to be paid by the lien or other encumbrance claimant. Code Civ. Proc. §765.030. Moreover, any lien or encumbrance claimant who records or files a lien or other encumbrance in violation of Section 765.010 shall be liable to the owner of the property bound by the lien or encumbrance for a civil penalty of up to five thousand dollars ($5,000) per violation. Code Civ. Proc. §765.040.

A Uniform Commercial Code Financing Statement (“UCC-1 Statement”) is a legal document that a creditor may file with the California Secretary of State to give notice that the creditor has a security interest in the personal property of the debtor. Com. Code §9310, subd. (a); 4 Witkin, Summary of California Law (10th Ed. 2005) Secured Transactions in Personal Property, §76. In this case, Duell filed the following UCC-1 Statements against Totten’s property following Duell’s arrest in 2016:

1. UCC-1 Statement, dated November 2, 2017, Document No. 65068420002;

2. UCC-1 Statement, dated December 3, 2017, Document No. 65747610002; and

3. UCC-1 Statement, dated March 5, 2018, Document No. 68295930002.

(Petition, ¶6.)

Totten has never met Duell and has never entered into any kind of commercial or financial transaction with Duell or any entity called “Duell Family Trust.” (Declaration in Support of Petition, ¶2.) Further, Totten does not owe Duell or the Duell Family Trust any money, nor does Duell or the Duell Family Trust hold a security interest in any property or assets of petitioner. (Ibid.) In opposition to the current petition, Duell has filed numerous (and lengthy) documents, but the documents are a nonsensical collection of federal civil rights statutes, United States Patent and Trademark Office filings, County of San Diego fictitious business name statements, proclamations of nationality, affidavits of contract, treaties (e.g., Treaty of Peace and Friendship between the United States and the Emperor of Morocco, dated January 1787), and the U.S. Congressional Record (e.g., Proceedings and Debates, 90th Congress, First Session, Vol. 113, Part 12, June 12, 1967 to June 20, 1967), and State of Georgia Resolution No. 43, dated March 8, 1957, among other materials, none of which is responsive to the issue at hand, namely, whether petitioner, in fact, is a debtor of respondent.

Based on the record in the case, the court finds that the three UCC-1 Statements filed by respondent against petitioner’s property are false and fraudulent encumbrances, that respondent filed the statements knowing that they were false and fraudulent, and that respondent’s sole purpose in filing the statements was to harass petitioner and/or to hinder him in the discharge of his official duties. Accordingly, the court will grant Totten’s petition for order striking and releasing the three UCC statements filed against his property and for order awarding civil penalties against Duell in the amount of $15,000 ($5,000 per fraudulent lien) and attorney’s fees, pursuant to Code of Civil Procedure Sections 765.030 and 765.040. The amount of attorney’s fees shall be determined by separate motion.

Lastly, the court will grant Totten’s request for an injunction prohibiting Duell from filing or recording any further UCC-1 Statements or other purported liens or encumbrances against any current or former County of Ventura employees without first obtaining leave of court. California law authorizes a permanent injunction where “pecuniary compensation would not afford adequate relief,” “it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief,” or “the restraint is necessary to prevent a multiplicity of judicial proceedings.” Civ. Code §3422. Here, the court recognizes that it is extremely difficult to ascertain the amount of compensation or damages that would afford petitioner or others like him adequate relief because the filing of a fraudulent lien, which negatively impacts an individual’s credit rating, may not result in an immediate out-of-pocket loss or readily measurable damages. Further, without a permanent injunction, respondent is likely to continue filing fraudulent liens against Ventura County government employees. Respondent will not be harmed by such an injunction since, in the unlikely event he ever needs to record a valid lien or encumbrance against a County employee, he will only need to request permission of the court to do so.

The orders herein shall issue immediately and shall be personally served on respondent.