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LAW & MOTION CALENDAR
Friday, January 22, 2021, 1:30 p.m. via Zoom
Courtroom 18 – Hon. Jennifer V. Dollard
PLEASE NOTE: In accordance with the Addendum to First Amended Omnibus Order of the Presiding Judge issued May 27, 2020, only those persons with court hearings in criminal actions shall enter a Sonoma County Superior Court facility. Until further notice, all matters set for hearing in this courtroom shall be heard remotely through Zoom. No party or representative of a party may appear personally in Courtroom 18. CourtCall is not permitted for this calendar.
If the tentative ruling is accepted, no appearance is necessary via Zoom unless otherwise indicated.
TO JOIN “ZOOM” ONLINE,
TO JOIN “ZOOM” BY PHONE,
By Phone (same meeting ID and password as listed for each calendar):
+1 669 900 6833 US (San Jose)
By Phone (same meeting ID and password as listed for each calendar):
+1 669 900 6833 US (San Jose)
Guide for participating in court proceedings via Zoom in Department 18.
-After joining the meeting and checking in with the clerk, please mute your audio when not speaking. This helps keep background noise to a minimum.
-Be mindful of background noise when your microphone is not muted. Avoid activities that could create additional noise, such as shuffling papers.
-Position your camera properly if you choose to use a web camera. Be sure it is in a stable position and focused at eye level, if possible. Make sure everything visible in the frame is appropriate for an appearance in court.
-If a confidential session becomes necessary it is incumbent on you to ensure you are able to participate from a private location so that unauthorized people cannot overhear or see the proceedings.
-Chat is enabled for the sharing of documents among participants and the court and to allow attorneys to communicate individually with each other or their clients only. No chat messages should be sent privately to the court as it would amount to an unauthorized ex parte communication. Neither should chat messages be sent to all participants unless directed by the court.
-The recording function has been disabled. Remember, the prohibition against recording court proceedings, even remote ones, remains.
-Be patient. Check in will take more time and the experience from those who have tried this before is that proceedings are a little slower generally.
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 the court by telephone at (707) 521-6723 and all other opposing parties of your intent to appear by 4:00 p.m. on the court day immediately preceding the day of the hearing.
PLEASE NOTE: The court WILL provide a court reporter for this calendar. If there are any concerns, please contact the court at the number provided above.
1. SCV-262238, Serafini v. Zepponi
Tentative Ruling: This case is on calendar for dueling motions to enforce the parties’ August 12, 2019 stipulated judgment. In the first motion, Defendants Zepponis seek an order requiring Plaintiffs Serafinis to execute a Letter of Intent to sell the property to Burbank Housing and Kenwood Investments (“Burbank”) for $3,850,000. A copy of the applicable Burbank LOI is attached as “I” to the first supplemental declaration of Nathan L. Scheg. The LOI includes a $50,000 initial deposit into escrow which becomes “nonrefundable” upon “completion of zoning changes and annexation period through one of the two paths as described in 6d of the LOI and is released to the sellers (60 days). Buyer pledges to work diligently towards securing said entitlements.” (Scheg Dec. at Ex. I.) Additionally, the purchase is made “contingent upon property’s entitlement, including City must adopt a resolution certifying the Final Environmental Impact Report/Environmental Assessment/Finding of No Significant Impact” and sets a “closing date” for the deal “on or before forty-five (45) days from the approval of Closing Conditions.” (Ibid.) Finally, the LOI states that the “Seller shall be responsible for payment of any sales commissions related to this transaction.” (Ibid.) Thus far, Plaintiffs have refused to sign the LOI and in fact, the LOI states it will remain in effect until 5:00 p.m. on September 11, 2020 and thus, it is not clear if Defendants’ requested relief remains a viable option.
In the second motion, Plaintiffs seek an order compelling Defendants to “execute an extension to the listing agreement already presented to them by DeNova,” which, although not entirely clear from Plaintiffs’ motion, appears to extend escrow with DeNova for another 24 months on the previously received $4,000,000 offer; doubles the nonrefundable deposit to $200,000; and allows the sellers to “actively market, show and list the property to other prospective purchasers during the term of the extension.” (Zepponi Dec. at Ex. I.) It appears that the escrow extension was requested to allow DeNova additional time to complete its due diligence and obtain permitting and zoning approvals from the City of Sonoma, which had been delayed due to the Covid-19 pandemic. It does not appear that Plaintiffs have attached a copy of the proposed extension to their motion or supporting declarations and nonetheless, Defendants have refused to sign the DeNova escrow extension. It is not clear whether DeNova’s escrow extension offer remains open and continues to be a viable option in this case.
After reviewing the parties’ briefs and the many exhibits, Plaintiffs’ unopposed Request for Judicial Notice is GRANTED. Plaintiffs’ motion to enforce the stipulated judgment is DENIED and Defendants’ motion to enforce the stipulated judgment is DENIED. While the Court certainly has authority to enforce the terms of the stipulated judgment and subsequent ruling to enforce that judgment, the Court cannot “create” material terms that are not in the settlement, “as opposed to deciding what terms the parties themselves have previously agreed upon.” (Weddington Prods., Inc. v. Flick (1998) 60 Cal.App.4th 793, 810; see also, Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1360.) Here, the relief requested by Defendants, i.e., that Plaintiffs sign the Burbank LOI, is not specifically provided for in the stipulated judgment and in fact, Defendants’ proposed relief does not even comply with the judgment’s express direction that the sale be “conducted by a real estate broker selected by the Court or one mutually agreed to by the parties if such an agreement is reached.” (August 12, 2019 Stipulated Judgment at 2:13-14.) Similarly, Plaintiffs’ requested resolution, i.e., a 24 month escrow extension to the already cancelled offer from DeNova, is also not included in the judgment and cannot be reasonably inferred from its terms. This is aside from the point that both the Burbank LOI and the DeNova extension offer appear to have expired, and whether the Court could order either party to sign an offer that may not currently exist. Finally, while the Court has inherent authority to compel obedience to its judgments, orders and process and can adopt “any suitable process or mode of proceedings” for this purpose, the Court cannot conclude under the circumstances in this case that either party has “willfully” failed to comply with the stipulated judgment such that sanctions are warranted. (See, Code Civ. Proc. §§128(a)(4)) and 187.)
Accordingly, both motions are denied.
However, the parties are ORDERED to renew their efforts to sell the property in compliance with the Stipulated Judgment. The parties are ORDERED to list the property for sale through their respective real estate brokers within thirty (30) days of the Court’s final ruling and in compliance with the terms of the stipulated judgment. The Court strongly suggests that the parties retain the services of a mutually agreed upon mediator, in advance of the listing, to assist the parties in the event multiple offers are received and the parties cannot otherwise agree to accept a specific offer. The parties in this case have sophisticated counsel and experienced real estate brokers who all need to step-up and start acting in the best interest of their clients to sell the property and distribute their clients’ respective shares of the proceeds.
Each moving parties’ counsel shall submit a written order for the motion they opposed to the Court that is consistent with this tentative ruling and in compliance with Rule of Court 3.1312.
2. SCV-266046, Martin v. Echelon Communities, LLC
Tentative Ruling: Plaintiffs’ Request for Judicial Notice in support of the motion is DENIED. Plaintiff’s Objections to Evidence 1-2 are OVERRULED. Plaintiffs’ motion for a preliminary injunction “prohibiting Defendant from charging Plaintiffs more rent than Defendant charged Plaintiffs before it illegally raised Plaintiffs’ rent on September 1, 2017” is DENIED.
While the Court finds that Plaintiffs are likely to prevail on at least their first cause of action for violation of Civil Code section 798.30, based on Defendant’s failure to give the required 90 days’ notice of a rent increase, Plaintiffs have failed to show that they will incur irreparable damages if the injunction is not issued. (See, Pacific Decision Sciences Corp. v. Superior Court (2004) 121 Cal.App.4th 1100, 1110; see also Tahoe Keys Property Owners’ Assn. v. State Water Resources Control Bd. (1994) 23 Cal.App.4th 1459, 1471 [“In general, if the plaintiff may be fully compensated by the payment of damages in the event he prevails, then preliminary injunctive relief should be denied”]; Thayer Plymouth Center, Inc. v. Chrysler Motors Corp. (1967) 255 Cal.App.2d 300, 306 [The generally applicable rule is that “if monetary damages afford adequate relief and are not extremely difficult to ascertain, an injunction cannot be granted.”].) In fact, Plaintiffs’ motion specifically calculates the monetary damages each Plaintiff will incur if the injunction is not issued. (Motion at 7:8-10 [“If trial is not scheduled for another 10 months, then Plaintiffs will have to pay Defendant an average of $1,771.80 in illegal rent during this time.”].) Thus, Plaintiffs’ damages are “reasonably capable of being calculated” and monetary damages afford adequate relief. The fact that Plaintiffs do not have a “guarantee they will recover these damages when they prevail, because a judgment against Defendant for money damages is not a guarantee that Plaintiffs will be repaid,” does not render Plaintiffs’ damages “irreparable” and does not make monetary damages insufficient to afford them adequate relief. Accordingly, the motion for a preliminary injunction is denied.
1. General Rules Regarding Preliminary Injunctions
The purpose of a preliminary injunction is to preserve the status quo pending a final determination on the merits. (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528; see also, Jamison v. Department of Transportation (2016) 4 Cal.App.5th 356, 361.) However, the power to enjoin is an extraordinary power that must be exercised with great caution and should rarely, if ever, be exercised in a doubtful case. (Dawson v. East Side Union High School Dist. (1994) 28 Cal. App. 4th 998, 1041.)
“In considering whether to issue a preliminary injunction, a court evaluates two interrelated factors: the likelihood plaintiff will prevail on the merits at trial and the interim harm to plaintiff or defendant if the court denies or grants the preliminary injunction.” (Drakes Bay Oyster Co. v. California Coastal Com. (2016) 4 Cal.App.5th 1165, 1171-1172; see also White v. Davis (2003) 30 Cal.4th 528, 554; Dynamic Sols., Inc. v. VitaVet Labs, Inc. (2016) 6 Cal.App.5th 1178, 1183 [“A trial court may grant a preliminary injunction upon a showing that (1) the party seeking the injunction is likely to prevail on the merits at trial, and (2) the ‘interim harm’ to that party if an injunction is denied is greater than ‘the [interim] harm the [opposing party] is likely to suffer if the ... injunction is issued.’”], citing, SB Liberty, LLC v. Isla Verde Assn., Inc. (2013) 217 Cal.App.4th 272, 280.) “These two showings operate on a sliding scale: ‘[T]he more likely it is that [the party seeking the injunction] will ultimately prevail, the less severe must be the harm that they allege will occur if the injunction does not issue.’” (Integrated Dynamic Sols., Inc. v. VitaVet Labs, Inc. (2016) 6 Cal.App.5th 1178, 1183, quoting King v. Meese (1987) 43 Cal.3d 1217, 1227.) The burden is on the moving party to show all elements necessary to support issuance of a preliminary injunction. (California Practice Guide, Civil Procedure Before Trial, ¶9:632.1 (The Rutter Group 2017); see also, O’Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481.)
2. Plaintiffs Have Shown they are Likely to Prevail of their First Cause of Action for Violation of Civil Code Section 798.30.
The Mobile Home Residency statute states that “[t]he management shall give a homeowner written notice of any increase in his or her rent at least 90 days before the date of the increase.” (Civ. Code §798.30; see also, Rich v. Schwab (1984) 162 Cal.App.3d 739, 743 [considering former section 798.30’s 60 days notice requirement and finding that “the statute clearly requires 60 days notice [and] Landlord cannot avoid the rule by giving only 58 days notice…” rendering the late notice “void”], citing Hogya v. Superior Court (1977) 75 Cal.App.3d 122, 133.)
In this case, Defendant contends that “a technical violation of a statute does not automatically mean a party is entitled to any relief or damages if there was no prejudice by the technical violation.” (Opp. at 8:8-9.) Defendant argues that there are a “long line of cases in California discussing technical violations and the lack of prejudice to the party seeking damages or other relief.” (Opp. at 8:10-11.) However, none of these “foreclosure” cases address Civil Code section 798.30 and none of them hold that a late notice of rent increase is a “technical violation” that does not invalidate the increase absent “prejudice.” In fact, in the Rich case addressed above, which did address the late notice of rent increase at a mobilehome site under former Civil Code section 798.30, the Court of Appeal reversed a summary judgment in favor of the landlord and stated that the tenant “correctly asserts the 58 days notice was insufficient to increase rent…” (Rich, supra, 162 Cal.App.3d at 743.) The court referenced the same “shall” language that appears in the current version and held that “[w]here, as here, the statute clearly requires 60 days notice, Landlord cannot avoid the rule by giving only 58 days notice.” (Ibid.) The court specifically stated that “[c]ontrary to Landlord’s assertion, [tenant’s] contention does not rest on the notice’s ‘technical” defect’ and “[i]nstead, the rule an insufficient notice is a nullity for all purposes recognizes [t]enants’ reasonable expectation rent cannot be increased without a proper 60 days notice.” (Ibid.)
Thus, based on a plain reading of the statute and the court’s holding in Rich, as well as Defendant’s failure to provide any authority on point that holds otherwise, the Court concludes that Plaintiffs are likely to prevail on their first cause of action for a violation of Civil Code section 798.30.
3. Plaintiffs Have Not Shown they will Incur Irreparable Injury if the Preliminary Injunction is Not Issued.
As part of any analysis whether to issue a preliminary injunction, the Court is required to consider the harm likely to be sustained by the defendants if the preliminary injunction issues, and balance such harm against the irreparable harm to plaintiffs if the injunction is not issued. (See, Hunt v. Superior Court (1999) 21 Cal.4th 984, 999; Costa Mesa City Employees Assn. v. City of Costa Mesa (2012) 209 Cal.App.4th 298, 305.) “In general, if the plaintiff may be fully compensated by the payment of damages in the event he prevails, then preliminary injunctive relief should be denied.” (Tahoe Keys Property Owners’ Assn., supra, 23 Cal.App.4th at 1471; see also, Pacific Decision Sciences Corp., supra, 121 Cal.App.4th at 1110; Thayer Plymouth Center, Inc., supra, 255 Cal.App.2d 300, 306 [Injunctions will rarely be granted (absent specific statutory authority) where a suit for damages provides a clear remedy.].) A preliminary injunction is unlikely unless someone will be badly hurt in a way which cannot be later repaired. (California Practice Guide, Civil Procedure Before Trial, ¶9:522 (The Rutter Group 2017), citing People ex rel. Gow v. Mitchell Brothers' Santa Ana Theater (1981) 118 Cal.App.3d 863, 870-871.)
Although a plaintiff may show “irreparable injury” when the defendant is insolvent, there have been no allegations made and no evidence presented in this case that Defendant is insolvent or that it will be unable to satisfy a judgment for money damages. (See, West Coast Constr. Co. v. Oceano Sanitary Dist. (1971) 17 Cal.App.3d 693, 700 [“mere monetary loss is not irreparable in contemplation of the remedy of injunction unless there is an averment or a showing that parties causing the loss are insolvent or in any manner unable to respond in damages”].)
Here, Plaintiffs have failed to show that they will incur irreparable harm if the injunction is not issued or that money damages will not fully compensate them for their loss. In fact, Plaintiffs’ motion acknowledges that “[t]he average amount Plaintiffs are being overcharged is $177.18 a month” and “[i]f trial is not scheduled for another 10 months, then Plaintiffs will have to pay Defendant an average of $1,771.80 in illegal rent during this time, without any guarantee they will recover these damages when they prevail, because a judgment against Defendant for money damages is not a guarantee that Plaintiffs will be repaid.” (Opp. at 7:7-13.) Based on these calculations, Plaintiffs conclude that “[t]herefore, Plaintiffs will suffer great or irreparable harm if the Court does not grant them injunctive relief.” (Id. at 7:12-13.) However, the fact that Plaintiffs’ ability to recover money damages may not be immediate does not equate to “irreparable harm.” If that were the case, a preliminary injunction would be warranted in nearly every case before the Court. Furthermore, as Defendant points out in its opposition, if Plaintiffs truly believe that Defendant will be unable or unwilling to satisfy a judgment in the event Plaintiffs prevail, they may seek a prejudgment writ of attachment under the applicable attachment procedures.
Because Plaintiffs have failed to show that they will incur “irreparable harm” if the injunction is not granted, Plaintiffs’ motion is denied.
Defendant’s counsel shall submit a written order to the Court that is consistent with this tentative ruling and in compliance with Rule of Court 3.1312.
3. SCV-266221, Ella v. all persons unknown, claiming any legal or equitable right, title, etc.
Tentative Ruling: Defendants’ motion to modify the preliminary injunction is MOOT based on Plaintiffs’ January 12, 2021 Request for Dismissal, with prejudice, of the entire action and all parties and causes of action. The Court’s September 14, 2020 preliminary injunction is EXTINGUISHED based on the dismissal of the action.
4. SCV-266048, Fields v. General Motors, et al.
Tentative Ruling: Plaintiff’s motion to compel has been DROPPED based on information provided by the Discovery Referee. The Court thanks Mr. Costin for his assistance resolving this matter. The Court has signed the parties’ proposed stipulated protective order.
*This is the end of the Tentative Rulings*