Apr 21, 2018


TENTATIVE RULINGS                                       

LAW & MOTION CALENDAR                           

Wednesday, April 18, 2018, 3:00 p.m.                     

Courtroom 17 – Hon. Arthur A. Wick

3035 Cleveland Avenue, Suite 200, Santa Rosa



CourtCall is available for all Law & Motion appearances, EXCEPT parties in small claims cases and motions for claims of exemption which are mandatory appearances.   Please contact CourtCall directly at (888) 882-6878.


The following tentative rulings will become the ruling of the Court unless a party desires to be heard.  If you desire to appear and present oral argument as to any motion, YOU MUST notify Judge Wick’s Judicial Assistant by telephone at (707) 521-6729, and all other opposing parties of your intent to appear by 4:00 p.m. on Tuesday, April 17th.  Parties in small claims cases and motions for claims of exemption are exempt from this requirement.


PLEASE NOTE:  The court no longer provides court reporters for motion hearings.  If they wish, the parties may confer and arrange for one of the parties to bring a privately retained certified shorthand reporter to serve in the matter.





1.      MCV-235377, American Express v. Soares:


                    Appearances required.



2.      SCV-260612, Breazeale v. Santa Rosa Chandi Brothers:


Appearances required.



3.  SCV-261354, Blanc v. Altisource Residential, LP:


          The motion to seal is denied. The Defendants are to draft an order consistent with this ruling.


4.  SCV-261568, Syliphone v. NBS Default Services, LLC:


This is on calendar for Specialized Loan Servicing, LLC; Deutsche Bank National Trust Company, as Trustee for Morgan Stanley Loan Trust 2005-7; Wells Fargo Bank, N.A.; Mortgage Electronic Registration Systems, Inc. (the Defendants) demurrer to the Complaint. The Defendants generally attack the entire Complaint on the grounds that it fails to include a necessary party, Jaem Syliphone, the Plaintiff’s spouse, co-borrower, co-owner of the Subject Property, and a signatory on the Deed of Trust. Further, the demurrer objects to each of the eleven causes of action on a variety of grounds.


The demurrer has not drawn opposition.


The Defendants argue that the entire Complaint is defective in that it failed to properly join the Plaintiff’s spouse, Jaem Syliphone, who is a signatory on the Deed of Trust and co-owner of the Subject Property. The Defendants contend that Jaem is an “indispensable” party to the action in that not joining him will  “leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reasons of his claimed interest.” (Citing CCP § 389(a)(2)(ii).)


CCP § 389(a) provides:


(a) A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party.


CCP § 430.10(d) provides: “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:… (d) There is a defect or misjoinder of parties.”


Here, the Defendants demurrer on the basis of the Plaintiff’s failure to join Jaem to the instant action is well-taken. The Plaintiff does not dispute that Jaem is the co-owner of the Subject Property, nor a signatory on the Deed of Trust.  A person is an indispensable party if his or her rights must necessarily be affected by the judgment. (Morrical v. Rogers (2013) 220 Cal.App.4th 438.) The Complaint seeks, in pertinent part, the following relief: (1) “Plaintiff owns in fee simple, and is entitled to the quiet and peaceful possession of, the above-described real property”; (2) “Defendants, and each of them, and all persons claiming under them, have no estate, right, title, lien, or interest in or to the real property or any part of the property”; (3) “Plaintiff is entitled to the exclusive possession of the property.”  The requested relief in the Complaint undoubtedly affects the rights of Jaem, and would, likewise subject the Defendants to multiple lawsuits on the same set of facts.


Accordingly, the Defendants’ demurrer to the entire Complaint based on misjoinder is properly sustained with leave to amend. The Defendants are to draft an order consistent with this ruling.



5.  SCV-261637, Shaeffer v. Rosenberg:


This is on calendar for Plaintiffs/Cross-Defendants Larry Shaeffer and Asa Shaeffer’s (the Plaintiffs) motion for preliminary injunction. In their motion the Plaintiffs seek an injunction to require the Defendant/Cross-Complainant Stanley Rosenberg (the Defendant) to:


[P]rovide reasonable support for Shaeffer to obtain a cannabis permit and state license, including but not limited to signing forms and application documents, providing access for designers and architects, or providing records related to the Premises; and to cooperate with the respect to the execution and submission of any papers necessary or appropriate to impact the terms of the Settlement Agreement.


Further, the Plaintiffs seek an order requiring the Defendant to:


[P]rovide any documents needed by the Shaeffers for their permit application to the City of Santa Rosa and to sign the permit application no later than April 1, 2018, and to promptly assist in responding to any requests by state or local officials in evaluating and approving the Shaeffers’ applications for permits.


The Plaintiffs argue that the parties have an agreement whereby the Defendant has agreed to cooperate with their application for a cannabis permit—but has refused to do so. The Plaintiffs aver that City of Santa Rosa has prescribed a short window of opportunity to submit the application, to wit, April 9, 2018 through April 20, 2018. The Plaintiffs contend that missing the City’s application deadline with result in “extreme financial losses of tens of thousands of dollars per month, it will prevent the Shaeffers from operating a dispensary at all.” The Plaintiffs argue that they will prevail on the merits of their claims and that the Defendant’s steadfast refusal to cooperate with their application will result in irreparable harm, i.e. being precluded from obtaining the necessary permits, and will ultimately prevent them from acquiring the Subject Property. Further, the Plaintiffs contend that without the injunction, any judgment will fail to be effective, in that they will be unable to operate a cannabis business on the subject Property. 


The Defendant opposes, arguing that the Plaintiffs are seeking a mandatory injunction—which is not warranted in the current dispute. The Defendant contends that the Plaintiffs are not seeking to protect the status quo pending the outcome of litigation, but rather are seeking to change the status quo by forcing the Defendant to grant the Plaintiffs a contractual right that he contends they are not entitled to. Further, the Defendant argues that the Plaintiffs have failed to meet their burden to show a probability of prevailing on the merits, nor have they established irreparable harm. The Defendant also objects to the injunction itself, contending that it is vague, overly broad, and would require ongoing judicial supervision.


The Plaintiffs reply, emphasizing the uniqueness of the Subject Property with respect to their cannabis business. This uniqueness, they argue, establishes the irreparable harm they will suffer if the injunction is not allowed to issue. The Plaintiffs argue that without an injunction the Defendant will essentially kill the purpose of the settlement agreement wherein he agreed to cooperate with the Plaintiffs’ application. The Plaintiffs contend that failing to meet the City’s deadline will, effectively, preclude them from obtaining a permit—and that issuing the injunction will protect the status quo. 


A preliminary injunction is issued after hearing on either (1) noticed motion or (2) an order to show cause. Its purpose is, at least theoretically and usually in fact, to preserve the status quo and prevent irreparable harm pending trial on the merits. (White v. Davis (2003) 30 Cal.4th 528, 554; Costa Mesa City Employees' Ass'n v. City of Costa Mesa (2012) 209 Cal.App.4th 298, 305.) The Plaintiffs must present competent evidence in the form of verified pleadings, affidavits, declarations, deposition transcripts, etc. establishing facts supporting injunctive relief - i.e. showing that Plaintiff’s remedy at law is inadequate; irreparable harm; and probability of success on the merits of the action. ( CCP § 527(a); CRC Rule 3.1306; O'Connell v. Sup.Ct. (Valenzuela) (2006) 141 Cal. App. 4th 1452, 1481.)Regardless of the balance of interim harm, the preliminary injunction cannot be allowed to stand unless there is “some possibility” that the Plaintiffs will prevail on the merits of its action. ( See Butt v. State of California (1992) 4 Cal.4th 668, 677–678; Aiuto v. City & County of San Francisco (2011) 201 Cal.App.4th 1347, 1361.) “Where there is ... no likelihood that the plaintiff will prevail, an injunction favoring the plaintiff serves no valid purpose and can only cause needless harm.” ( American Academy of Pediatrics v. Van de Kamp (1989) 214 Cal.App.3d 831, 838.) Further, the court may deny a preliminary injunction either (1) on its finding irreparable injury will not result to the party seeking the injunction, or (2) that the party has failed to demonstrate a reasonable probability of success on the merits. (People v. Pacific Land Research Co.  20 Cal.3d 10, 21; Forde v. Bank of Finance, 136 Cal.App.3d 38, 42; Merandette v. City and County of San Francisco 88 Cal.App.3d 105, 111.)


Moreover, mandatory preliminary injunctions are rarely granted (and if granted, are subject to stricter scrutiny on appeal): “The granting of a mandatory injunction pending trial is not permitted except in extreme cases where the right thereto is clearly established.” (Teachers Ins. & Annuity Ass'n v. Furlotti (1999) 70 Cal.App.4th 1487, 1493; Ryland Mews Homeowners Ass'n v. Munoz (2015) 234 Cal.App.4th 705, 712, fn. 4; Integrated Dynamic Solutions, Inc. v. VitaVet Labs, Inc. (2016) 6 Cal.App.5th 1178, 1184.)


Here, the Plaintiffs are seeking a mandatory injunction to force the Defendant to comply with an agreement he is seeking rescission of. The Plaintiffs are not entitled to the relief they seek for multiple reasons.


First, the Plaintiffs have utterly failed to demonstrate irreparable harm. Indeed, the Plaintiffs admit in their moving papers that “it may be possible to determine the lost profits and economic injury from just losing the business opportunity.” (Plaintiffs’ MPA 6:3-4.) If it is possible to determine the “economic injury” then a preliminary injunction cannot issue. Further, the Plaintiffs attempt to couch the Defendant’s performance in terms of the uniqueness of the real property in question is not persuasive. The Plaintiffs’ motion does not involve the transfer of real property—but rather, obtaining a business license. There is nothing unique, nor injury irreparable, from failing to obtain a business license. As the Plaintiffs admit in their moving papers, it will be possible to calculate the economic injury that might be a result of losing their business opportunity. For this reason as well, the Plaintiffs argument that the injunction will protect the efficacy of the judgment fails as well.


Second, the Plaintiffs have failed to establish the “extreme” circumstances that would justify issuing a mandatory injunction. The case before the court is a relatively straightforward business dispute involving the sale of a business and commercial real property. It is well settled that “granting of a mandatory injunction pending trial is not permitted except in extreme cases where the right thereto is clearly established.”  (Shoemaker v. County of Los Angeles (1995) 37 Cal.App.4th 618, 625.) As explained, this does not appear to be an “extreme case” requiring the issuance of a mandatory injunction. Furthermore, the Plaintiffs have not clearly established their right to the relief they seek. As the Plaintiffs admit in their moving papers, they have sold one of the properties that was to be held as back-up collateral. The Defendant contends that the sale of this property constitutes a material breach and a failure of consideration. To come to the conclusion that the Plaintiffs have a “clearly established right” to the Defendant’s cooperation to obtain a cannabis permit would require the court to ignore the Plaintiffs’ own admission that they have not complied with their own obligations under the same agreement.


Moreover, the court cannot ignore the nexus between the sale of the back-up collateral and the Defendants’ seeking cooperation to obtain a cannabis permit. The evidence and allegations suggest that the back-up collateral was put in place to protect against a possible federal forfeiture action—a risk triggered by the application for, and the obtaining of, a cannabis permit and the running of a cannabis business at the Subject Property (which is, in theory, a violation of federal marijuana laws). Thus, the Defendant’s allegations that the Plaintiffs have not held the backup collateral become even more relevant to whether the Plaintiffs are entitled to an injunction forcing the Defendant to cooperate in their application—an application that will trigger the risk that the Defendant argues that he is not adequately protected from on account of the Plaintiffs’ alleged breaches.


Accordingly, the court will deny the Plaintiffs’ motion for a preliminary injunction. The Defendant’s evidentiary objections numbers 4, 5, to the Beck Declaration are sustained, the rest of the objections are overruled. The Defendant’s evidentiary objections numbers 6, 7, 8, and 9 to the Shaeffer Declaration are sustained, the rest are overruled. The Defendant’s request for judicial notice is granted. The Plaintiffs’ request for judicial notice contained in their reply brief is denied. (See CRC Rule 3.1113(l); and Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538 [under general rule of motion practice, new evidence not permitted with reply papers].)



6.  SCV-261726, Great American Insurance Co. v. Stericycle Inc.:


This is on calendar for the application of Mr. Brian Suth to be admitted pro hac vice. The application for admission pro hac vice is not drawn in conformity with the applicable rule of court. 


CRC Rule 9.40(d)(5) requires that the application include “[t]he title of court and cause in which the applicant has filed an application to appear as counsel pro hac vice in this state in the preceding two years, the date of each application, and whether or not it was granted.” The application submitted omits the date of the previous application, and does not indicate whether the application were granted or denied.


          Accordingly, the application for orders allowing Mr. Suth to appear as counsel pro hac vice is denied.



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