18-CIV-05383 ADRIANA J. QUINTERO VS. STEVEN A. WEINKAUF, ET AL.

ADRIANA J QUINTERO STEVEN A. WEINKAUF
MICHAEL B. BASSI PRO/PER

DEFENDANT, STEVEN A. WEINKAUF’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION TENTATIVE RULING:

Defendant’s Requests for Judicial Notice numbers 1, 2, and 4 are GRANTED pursuant to Evidence Code Sections 451 and 452(d). Defendant’s Requests for Judicial Notice numbers 3, 5, and 6 are DENIED.

Plaintiff’s Requests for Judicial Notice are GRANTED pursuant to Evidence Code Sections 451, 452, and 453.

Defendant’s objections to evidence are DENIED.

Plaintiff’s objections to evidence are DENIED.

Defendant’s Motion for Summary Judgment, or in the Alternative Summary Adjudication is DENIED pursuant to Code of Civ. Proc. Section 437c. Defendant has not demonstrated that he is entitled to judgment as a matter of law as to any of the four causes of action in Plaintiff’s Complaint. As to the First Cause of Action for the Tort of Stalking, Defendant has not demonstrated that the undisputed facts establish that no exigent circumstance existed which would have made communication of a demand for Defendant to cease and desist his pattern of conduct unsafe. The definition of exigent circumstances on which Defendant seeks to rely, from People v. Williams 48 Cal. 3d 1112, 1138, was created in the context of constitutional and criminal law analysis of warrantless searches of a home, and Williams does not support the proposition that this definition is applicable to an analysis of the term “exigent circumstances” as used in Civil Code Section 1708.7. Additionally, a triable issue of material fact exists as to the existence of such an exigent circumstance. SSUMF numbers 3, 18, 21; subpoenaed pretext phone call between Plaintiff and Defendant; Quintero Declaration.

As to the Second Cause of Action for Assault, a reasonable trier of fact could find that Plaintiff was placed in reasonable apprehension or fear of immediate harmful or offensive contact by the shooting and breaking of Plaintiff’s windows. A triable issue of material fact also exists as to whether Defendant had the ability to inflict immediate harmful or offensive contact, or had the present ability to cause reasonable apprehension of immediate harmful or offensive contact. SSUMF numbers 24, 31; Declaration Bassi Declaration, Quan Declaration, Quintero Declaration, Plaintiff’s responses to Interrogatories.

As to the Third Cause of Action for Intentional Infliction of Emotional Distress, a reasonable trier of fact could find that Defendant’s actions were specifically directed at Plaintiff. SSUMF numbers 34, 35, 36, 37; Declaration Bassi Declaration, Quan Declaration, Quintero Declaration, Plaintiff’s responses to Interrogatories.

As to the Fourth Cause of Action for the Tort of Domestic Violence, a reasonable finder of fact could determine that Defendant intentionally or recklessly caused or attempted to cause bodily injury, or placed Plaintiff in reasonable apprehension of imminent serious bodily injury to himself or herself, or another pursuant to Civil Code Section 1708.6(a)1 and Section 13700 of the penal code. SSUMF numbers 45, 46, 47, 48; Declaration Bassi Declaration, Quan Declaration, Quintero Declaration, Plaintiff’s responses to Interrogatories.

Defendant’s UMF’s which state, “On or about 2/3/17 Plaintiff after reviewing CCTV surveillance videos taken on 1/3/17 and 1/8/17 Plaintiff for the first time identified defendant as the perpetrator shooting out the window of plaintiff’s business on 1/3/17 and 1/8/17,” further indicate that triable issues of material fact exist in this case, given Defendant’s position in his moving papers that Defendant never used a firearm in the commission of acts against Plaintiff, since Defendant appears to be disputing via his sworn statements that the actions alleged in the Complaint took place.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiff shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.