Nov 11, 2019
TENTATIVE RULINGS
LAW & MOTION CALENDAR
Wednesday, November 6, 2019, 3:00 p.m.
Courtroom 18 – Hon. Jennifer V. Dollard
3055 Cleveland Avenue, Santa Rosa
 
 
CourtCall is available for all Law & Motion appearances, EXCEPT parties in 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 the court by telephone at (707) 521-6730, and all other opposing parties of your intent to appear by 4:00 p.m. today, Tuesday, November 5, 2019. Parties in motions for claims of exemption are exempt from this requirement.
 
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-262391, Leonhard v. Petrick
 
Defendants Maria M. Petrick, M.D. and Family Care Allergy & Asthma’s motion for summary judgment is continued by the court to November 15, 2019 in Department 18 at 3:00 p.m.
 
 
2.         SCV-264903, S v. Hastings
 
            This is on calendar for an Order to Show Cause re: Preliminary Injunction. Plaintiffs seek to maintain the status quo pending trial by prohibiting defendant from selling, concealing, encumbering, impairing the value of, transferring ownership of, or disposing of his assets. Such assets include real property located at 1480 Glenside Street and 2610 Stoney Point Road in Santa Rosa, California.
 
Pursuant to plaintiffs ex parte application, the court issued a temporary restraining order and OSC re preliminary injunction on September 12, 2019. Defendant was personally served with the OSC and supporting documents on September 16, 2019, however, no opposition has been timely filed.
 
Per CCP §526(a)(3): “An injunction may be granted in the following cases:…(3) When it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual.”
 
“In deciding whether to issue a preliminary injunction, a trial court must evaluate two interrelated factors: (i) the likelihood that the party seeking the injunction will ultimately prevail on the merits of his [or her] claim, and (ii) the balance of harm presented, i.e., the comparative consequences of the issuance and nonissuance of the injunction.”
(Jamison v. Department of Transportation (2016) 4 Cal.App.5th 356, 361, internal citations and quotation marks omitted.)
Here, the minor plaintiffs by and through their guardian ad litem, allege the following causes of action in the complaint against their step-grandfather: (1) childhood sexual abuse; (2) sexual battery; (3) negligent infliction of emotional distress; and (4) intentional infliction of emotional distress. Per plaintiffs, defendant is currently in custody facing criminal charges based on the same sexual abuse alleged in this case.
 
Plaintiffs argue they are likely to prevail on the merits of their claims and that they will irreparably harmed if defendant is able to render himself judgment proof by disposing of his assets before trial.
 
The court finds plaintiffs have established both grounds for injunctive relief. Based on the declarations filed in support of the ex parte application for TRO and OSC, it appears plaintiffs are likely to ultimately prevail on the merits of their claims. The TRO restrains defendant from disposing of his assets, except in the usual course of business or for the necessities of life, which includes legal representation. Consequently, the court finds plaintiffs will suffer more harm if the preliminary injunction does not issue than defendant will suffer if it does.
 
CCP §529(a) requires an undertaking if the court grants preliminary injunctive relief. Subdivision (a) provides in relevant part: “On granting an injunction, the court or judge must require an undertaking on the part of the applicant to the effect that the applicant will pay to the party enjoined any damages, not exceeding an amount to be specified, the party may sustain by reason of the injunction, if the court finally decides that the applicant was not entitled to the injunction.” 
“Nothing in the statute conditions the trial court's obligation to require such an undertaking upon a request from the parties. To the contrary, an injunction does not become effective until an undertaking is required and furnished (Griffin v. Lima (1954) 124 Cal.App.2d 697, 699 [269 P.2d 191]), and must be dissolved if an undertaking is not filed within the time allowed by statute (§ 529, subd. (a)). Since an undertaking is an indispensable prerequisite to the issuance of a preliminary injunction, regardless of whether the party to be restrained has reminded the court to require the applicant to post one, the restrained party does not waive its right to that statutorily mandated protection by failing to affirmatively request it. Therefore, the defendants' initial silence did not waive their right to an undertaking.” (Abba Rubber Co. v. Seaquist (1991) 235 Cal.App.3d 1, 10.)
 
Plaintiffs have not addressed the undertaking/bond. In light of the lack of opposition from the defendant, the litigation in this matter does not appear likely to be extensive, and the court sets the undertaking at $15,000.
 
Plaintiffs are to prepare an order consistent with the above ruling and shall deliver the undertaking to the clerk along with the proposed order.
 
3.         SCV-264904, People of the State of California v O’Connor
 
Plaintiffs move for injunctive relief, abatement of nuisance, and appointment of receiver pursuant to Health & Safety Code § 17980.7. The court continued the matter from September 18, 2019 in order for plaintiffs to first demonstrate compliance with notice and service requirements as explained below. Summons was issued and filed on September 19, 2019, but plaintiffs have yet to demonstrate compliance with the notice and service requirements. Therefore, the motion is denied without prejudice.
 
Health & Safety Code § 17980.7(c) provides: “The enforcement agency, tenant, or tenant association or organization may seek and the court may order, the appointment of a receiver for the substandard building pursuant to this subdivision. In its petition to the court, the enforcement agency, tenant, or tenant association or organization shall include proof that notice of the petition was served not less than three days prior to filing the petition, pursuant to Article 3 (commencing with Section 415.10) of Chapter 4 of Title 5 of Part 2 of the Code of Civil Procedure, to all persons with a recorded interest in the real property upon which the substandard building exists.”
Here, there is no “proof that notice of the petition was served not less than three days prior to filing the petition.” Per the declaration of Cindy Schalich, “Deborah J. O’Connor, as Trustee of The O’Connor Irrevocable Trust, is the owner of record of the premises.” (Schalich Decl., ¶4.)[1] Ms. Schalich states that Deborah O’Connor and her sister Brigid O’Connor agreed to accept personal service of all pleadings in support of this motion by email. (Schalich Decl., ¶27.) However, H&S Code §17980.7(c) requires service of the petition in the manner of a summons and it appears electronic service is not a proper method.
 
Deborah O’Connor lives out-of-state. CCP §415.40 states that: “A summons may be served on a person outside this state in any manner provided by this article or by sending a copy of the summons and of the complaint to the person to be served by first-class mail, postage prepaid, requiring a return receipt. Service of a summons by this form of mail is deemed complete on the 10th day after such mailing.”
“If a document is required to be served by certified or registered mail, electronic service of the document is not authorized.” (CCP §1010.6(a)(2)(B); see also California Rules of Court, Rule 2.251(a).)
 
CCP §1010.6(a)(2)(A)(ii) further provides for the manner in which consent to electronic service is given: “For cases filed on or after January 1, 2019, if a document may be served by mail, express mail, overnight delivery, or facsimile transmission, electronic service of the document is not authorized unless a party or other person has expressly consented to receive electronic service in that specific action or the court has ordered electronic service on a represented party or other represented person under subdivision (c) or (d). Express consent to electronic service may be accomplished either by (I) serving a notice on all the parties and filing the notice with the court, or (II) manifesting affirmative consent through electronic means with the court or the court's electronic filing service provider, and concurrently providing the party's electronic address with that consent for the purpose of receiving electronic service. The act of electronic filing shall not be construed as express consent.”

           Based on the foregoing, it appears electronic service is not authorized for service of the petition on Deborah O’Connor. Therefore, plaintiffs have failed to establish compliance with subdivision (c) of Health & Safety Code § 17980.7.

 
Additionally, Ms. Schalich’s declaration is insufficient to establish Ms. O’Connor’s express consent to receive electronic service of other documents in this case. Ms. O’Connor must serve a notice on all the parties and file the notice with the court per CCP §1010.6. Finally, the proof of electronic service for notice of this motion is defective. It fails to follow the requirements set forth in CCP § 1013b.
 
Consequently, the motion is denied without prejudice.
           
 
4.         SPR78301, Est of Jane Johnson
 
John A. Kelly’s motion to be relieved as counsel for Catherine Johnson is DENIED WITHOUT PREJUDICE. There is no proof of service of the proposed order or of the supporting declaration. Nor is there a proof of service demonstrating all other parties who have appeared in the case, if any, have been served. Per CRC Rule 3.1362(d): “The notice of motion and motion, the declaration, and the proposed order must be served on the client and on all other parties who have appeared in the case. The notice may be by personal service, electronic service, or mail.”
 
 
5.         SPR-090876, Est of Theresa Ann Nichelini
 
Edwin Bradley, Daniel Raff, RAFF LAW APC’s motion to be relieved as counsel for Peter and Michael Nichelini is GRANTED.
 
 
 



[1] Presumably, there are no other persons with a recorded interest in the property, but plaintiffs fail to actually establish that fact.
© 2019 Superior Court of Sonoma County