May 29, 2015

LAW & MOTION TENTATIVE RULINGS               UPDATED

TUESDAY, MAY 26, 2015 - 8:30 a.m.

COURTROOM 19 –Judge Arthur Wick

3055 Cleveland Avenue, Santa Rosa, CA  95403

 

Court Call is now available for all Law and Motion appearances, EXCEPT parties in small claims cases and motions for claims of exemption which are mandatory appearances. ** To set up Court Call- Please call them 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, it will be necessary for you to contact Judge Wick’s Judicial Assistant by telephone at (707) 521-6730 by 4:00 p.m., FRIDAY, MAY 22, 2015.  Any party requesting an appearance must notify all other parties of their intent to appear.

1.  SCV-252779 In Re $80,000 US Currency:

This is on calendar for the People’s motion for summary judgment. The People’s motion is based on admissions deemed admitted that set forth a factual basis of forfeiture of the subject $80,000.

Claimant Arman Parvanyan opposes, contending that service of the instant motion is defective and that the evidence relied on by the People was procured by extrinsic fraud. The Claimant argues that the subject motion was served on his attorney while he was subject to a State Bar suspension order. In that situation, it was incumbent on the People to either personally serve the Claimant, or to leave a copy of the motion at his residence. The Claimant argues that absent sufficient service, this court does not have jurisdiction to rule on the motion.

Under normal circumstances, moving papers are served by mail, postage prepaid, to the attorney's office as shown on any document he or she filed in the action. (See CCP §§ 1012, 1013(a).) Here, however, at the time of service, November 20, 2014, the Claimant’s attorney, Robert Bazikyan, was subject to a State Bar suspension order. (See Dec. Shambrook ¶¶ 2-4, and associated exhibits attached thereto.) “[I]n all cases where a party has an attorney in the action or proceeding, the service of papers, when required, must be upon the attorney instead of the party, except service of subpoenas, of writs, and other process issued in the suit, and of papers to bring the party into contempt. If the sole attorney for a party is removed or suspended from practice, then the party has no attorney within the meaning of this section.” (CCP § 1015 [emphasis added].) Where the attorney of record is suspended during the relevant time frames, such as is the case at bar, it was incumbent on the People to serve their motion pursuant to CCP § 1011(b), which provides that parties not represented by counsel may be served personally or by leaving papers at their residence (not office) between 8 a.m. and 6 p.m. with someone at least 18 years old. If, however, no one age 18 or older is found at the time of attempted service, the papers may be served by mail. (CCP § 1011(b).)

Here, the People served both the Claimant and his attorney by mail. Since the attorney was suspended, mailing of the motion to the Claimant, without first attempting personal service, is ineffective. As a result, the motion was not properly served, and this court does not have jurisdiction to rule on it.

Accordingly, the People’s motion is dropped from calendar. The Claimant shall draft an order consistent with this ruling.

 

2.  SCV-253746 Liquid Investments v. Lusardi:

The hearing in this matter is continued to the law and motion calendar on June 16, 2015 at 8:30am in Department. 19.

3.  MCV-227470 Discover Bank v. Poznekoff:

This is on calendar for the Plaintiff’s motion to set aside a dismissal. On May 29, 2013, the Plaintiff dismissed the within action without prejudice thinking the Defendant had filed for bankruptcy. On February 20, 2015, the Plaintiff was reviewing the file for closure, and noticed that the SSN listed in the bankruptcy notice was different that the SSN they had in their file. This motion followed.

If an action is dismissed as the result of “mistake, inadvertence, surprise or excusable neglect,” plaintiff can move to set aside the dismissal under CCP § 473(b). (Basinger v. Rogers & Wells (1990) 220 Cal.App.3d 16, 21; see Maxwell v. Cooltech, Inc. (1997) 57 Cal.App.4th 629, 631, fn. 2.) CCP § 473(b) relief must be sought within 6 months after the dismissal is entered.

Here the dismissal was entered on May 29, 2013 and this motion was brought nearly two years later. The Plaintiff provides no evidence to explain the inordinate delay in seeking to set aside the dismissal. Therefore the motion is denied. The Plaintiff shall draft an order consistent with this ruling.

 

4.  SCV-250568 Cal-Coast Dairy v. McDevitt & McDevitt:

This is on calendar for Defendant/Cross-Defendant Pacific Door Products (Pac Door) motion to determine good faith settlement pursuant to CCP § 877.6. The case involves alleged defects in the construction of a cheese production plant located in Sonoma County. Pac Door was sued by Defendant McDevitt related to Pac Door’s work on the subject plant. Presently, the only operative pleading against Pac Door is McDevitt’s cross-complaint. The matter was mediated with the special master, and Pac Door and the owner of the plaint, Laura Chenel Chevre, Inc. agreed to a settlement for $75,000. This motion followed. The motion is unopposed.

Ordinarily, the elements that must be analyzed to determine the good faith of a settlement are discussed in detail in Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal. 3d 488. If, however,  a motion for good faith settlement is not contested, the court does not have to analyze the Tech-Bilt factors. (See City of Grand Terrace v. Superior Court (1987) 192 Cal. App. 3d 1251, 1261.) Here, the motion is uncontested and therefore the court need not analyze the Tech-Bilt factors. The moving party has filed a declaration indicating the basis for the determination of the settlement amount and a brief background of the case. (See Dec. Cale.)

Accordingly, the motion is granted in its entirety. The moving party shall draft an order consistent with this ruling.

 

5.  SCV-253484 Fountaingrove v. Wright:

            This is on calendar for Cross-Defendant Berkeley Cement Inc’s (BCI) motion to determine good faith settlement pursuant to CCP § 877.6. The case involves alleged defects in the construction of a commercial building located in Santa Rosa. BCI was sued by Defendant Wright Contracting related to its work on the concrete and reinforcing steel at the subject location. The mater was mediated, and BCI and Wright agreed to a settlement of the Cross-Complaint for $28,736. This motion followed. The motion is unopposed.

Ordinarily, the elements that must be analyzed to determine the good faith of a settlement are discussed in detail in Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal. 3d 488. If, however,  a motion for good faith settlement is not contested, the court does not have to analyze the Tech-Bilt factors. (See City of Grand Terrace v. Superior Court (1987) 192 Cal. App. 3d 1251, 1261.) Here, the motion is uncontested and therefore the court need not analyze the Tech-Bilt factors. The moving party has filed a declaration indicating the basis for the determination of the settlement amount and a brief background of the case. (See Dec. Rodman.)

Accordingly, the motion is granted in its entirety. The moving party shall draft an order consistent with this ruling.


6.  SCV-254120 Abraham v. West Cal Tractor:

Plaintiff Joshua Abraham moves for an order to tax costs. Plaintiff objects to Defendants’ request for witness fees, messenger fees, and travel expenses.

With regard to the expert witness fees, the motion is denied. Plaintiff has not established that Defendants’ $25,000 CCP § 988 offer was not realistically reasonable in the circumstances of this case. The court’s initial inclination to grant Defendants’ motion for summary adjudication of Plaintiff’s UNRUH causes of action alluded to the relative weakness of the case. In light of the case’s weakness, Defendants could have reasonably determined that they would most likely prevail at trial and that Plaintiff would be willing to accept the settlement offer.

The motion is also denied with regard to the messenger services and travel expenses as these were reasonably necessary to the conduct of the litigation. Except that, with respect to the travel expenses, Defendants have agreed to reduce the requested amount to $1,049.20.

Defendants are to submit an order consistent with this ruling.

 

7.  SCV-257090 Nuvolum v. Hackney:

This is on calendar for Plaintiff Nuvolum, LLC’s OSC re Preliminary Injunction. On May 5, 2015, Judge Daum in Department 16 signed a TRO, which required the Defendant to remove certain video postings which involved the Plaintiff’s clients, the TRO also restrained the Defendant from contacting the Plaintiff’s clients, from using deceptive email addresses, and from maintaining certain materials related to Plaintiff and Plaintiff’s clients. Further, the TRO restrained the Defendant from disseminating any information about the Plaintiff, or Plaintiff’s clients. Judge Daum further ordered the Defendant to show cause as to why a preliminary injunction should not issue pending resolution of the instant case. The TRO and OSC re preliminary injunction were served on the Defendant via email per order of the court.

The Plaintiff is in the business of producing promotional videos for medical professionals. The case involves an ex-employee of the Plaintiff, the Defendant, who shortly before and after his termination produced and published at least two videos involving clients of the Plaintiff. The Defendant allegedly contacted these clients, and provided them YouTube addresses where they might view the videos, which suggest that they were authored by the Plaintiff, and connect the clients with distasteful material. Further, the videos were allegedly produced using property of the Plaintiff. 

Although an OSC directs a defendant to show cause why a preliminary injunction should not issue, the burden is on plaintiff to show all elements necessary to support issuance of a preliminary injunction.  The Plaintiff 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.)

Traditionally courts have evaluated two interrelated factors when deciding whether or not to issue a preliminary injunction. The first is the likelihood that the plaintiff will prevail on the merits at trial. The second is the interim harm that the plaintiff is likely to sustain if the injunction were denied as compared to the harm that the defendant is likely to suffer if the preliminary injunction were issued. (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69-70.) A preliminary injunction must not issue unless it is “reasonably probable that the moving party will prevail on the merits.” (San Francisco Newspaper Printing Co., Inc. v. Sup.Ct. (Miller) (1985) 170 Cal. App. 3d 438, 44.)  Irreparable harm is also a separate consideration for a preliminary injunction and relief is unlikely unless someone will be significantly hurt in a way which cannot be later repaired. (People ex rel. Gow v. Mitchell Brothers' Santa Ana Theater (1981) 118 Cal. App. 3d 863, 870–871.)

If the preliminary injunction is granted, the court must require an undertaking [CCP § 529], or allow a cash deposit in lieu thereof. (CCP § 995.710.)

Likelihood of Success on the Merits

The Plaintiff has presented clear evidence that the Defendant has undertaken a course of conduct to discredit the Plaintiff and the Plaintiff’s clients. The YouTube videos, and the Defendant’s contacts with the Plaintiff’s clients, establish a likelihood of success on a defamation theory. Further, the Plaintiff has demonstrated that the Defendant has likely breached ongoing obligations under his employment contract, e.g. retention of the Plaintiff’s property post-termination. The Defendant has not presented any opposition.

Harm

The Plaintiff has also established that the potential harm to it and its clients is great and irreparable. The videos cast the Plaintiff’s clients in a bad light and connect them with distasteful material—a harm that would increase for as long as the videos remain available for consumption. Further, the videos suggest that they were produced by the Plaintiff, which they were not—negatively impacting the Plaintiff’s reputation in the business community. Further, there does not appear that the Defendant would suffer any harm from the issuance of a tailored preliminary injunction.  The Defendant has not presented opposition.

Conclusion

Here, the Plaintiff is entitled to a preliminary injunction; however, the injunction sought by the Plaintiff is overbroad. Indeed, the sought preliminary injunction would potentially impinge on the Defendant’s right to free speech, and would constitute an unlawful prior restraint on speech. (See Evans v. Evans (2008) 162 Cal.App.4th 1157 [preliminary injunction prohibiting former wife from publishing any “false and defamatory” statements on the Internet was constitutionally invalid as a prior restraint.].) Accordingly, a preliminary injunction will issue, on the following terms:

 

(1)   Defendant is ordered to immediately remove from the internet all of his postings of the videos that were identified in the moving papers of Dr. Fear and Union Square Oral Surgery;

(2)   Defendant is ordered to immediately return to the Plaintiff all of its property in his possession, including all of the Plaintiff’s data, graphics, and other visual materials;

(3)   Defendant is ordered to refrain from contacting any of the Plaintiff’s present or former clients;

(4)   Defendant is ordered to refrain from using any email accounts, including but not limited to johnandjeffputney@gmail.com, that indicate that the email is coming from, or is authorized by, the Plaintiff, its agents, and/or employees; and

(5)   Defendant is ordered to refrain from using any of the Plaintiff’s property, including graphics or other visual materials.

The preliminary injunction shall be conditioned on Plaintiff posting a $1,000 bond. Plaintiff shall be required to personally serve the preliminary injunction on defendant. The Plaintiff shall draft an order consistent with this ruling.

 

8.  SPR-86741 Matter of the Constance Doolittle Trust:

            The court approves the petition of Trustee Exchange Bank for authority to comply with this court’s pending order, pursuant to Probate Code § 1310(b).

 

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