Garr Ooley vs. Leland Murray

2012-00129839-CU-PO

Nature of Proceeding: Motion for Sanctions

Filed By: Gallagher Mark T.

Defendants Stephanie Murray, Mary Murray, Nicolas Maurer, Yvonne Steiner Maurer,
Michelle Kirwan, Trevor Kirwan, Dreama C. Larish, Anthony Larish, Jonathan Hanly,
and Alan Spinner’s (collectively “Defendants”) motion for sanctions against Plaintiff
Janis Starkey (“Starkey” or “Plaintiff”) and her counsel of record, Herman Franck
(“Franck”) pursuant to CCP section 128.7 is ruled upon as follows. Defendants’ request for judicial notice is granted. In taking judicial notice of these
documents, the court accepts the fact of their existence, not the truth of their contents.
th
(See Professional Engineers v. Dep’t of Transp. (1997) 15 Cal.4 543, 590 [judicial
notice of findings of fact does not mean that those findings of fact are true]; Steed v.
Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 120-121.)

In this action, Starkey, along with her boyfriend, Garr Ooley, allege that their
neighbors, the Defendants, engaged in a conspiracy to harass Plaintiffs to oust them
from their home. They allege that Defendants engaged in wrongful conduct, such as
damaging Plaintiffs’ property, following Ooley while he was jogging, yelling at Plaintiffs,
filing baseless applications for civil harassment restraining orders against Ooley, and
providing false information to police. This action is similar to a federal action filed on
January 12, 2012 (“Federal Action”), which was dismissed.

The instant action was thereafter filed on August 10, 2012.

As an initial matter, the Court notes that Defendants’ notice is defective. Defendants’
notice states that it will move the Court “to grant issue sanctions against Plaintiff Janis
Starkey and her counsel Herman Franck.” Issue sanctions, however, are sanctions for
discovery abuse and not pursuant to CCP section 128.7.

It appears from the memorandum of points and authorities, the Defendants seek
$25,437.50 from Franck and to have Plaintiff’s cause of action for intentional infliction
of emotional distress dismissed with prejudice.

CCP § 128.7 ties sanctions to the certification of pleadings, petitions, notices of motion
and similar papers presented to the court. Certification is not in the nature of a
verification, but is implied by law in every pleading. By presenting to the court a
pleading, petition, written notice of motion, or other similar paper, an attorney or
unrepresented party certifies under Code Civ. Proc. § 128.7(b) that to the best of the
person’s knowledge, information, and belief, formed after an inquiry reasonable under
the circumstances, all of the following conditions are met: (1) It is not being presented
primarily for an improper purpose, such as to harass or to cause unnecessary delay or
needless increase in litigation cost; (2) The claims, defenses, and other legal
contentions therein are warranted by existing law or by a nonfrivolous argument for the
extension, modification, or reversal of existing law or the establishment of new law; (3)
The allegations and other factual contentions have evidentiary support for, or if
specifically so identified, are likely to have evidentiary support after a reasonable
opportunity for further investigation or discovery; (4) The denials of factual contentions
are warranted on the evidence or, if specifically so identified, are reasonably based on
a lack of information or belief.

Sanctions are available under CCP § 128.7 where a paper is frivolous, legally
unreasonable or without factual foundation. “The actual belief standard…requires a
well-founded belief. We measure the truth-finding inquiry’s reasonableness under an
objective standard and apply this standard both to attorneys and to their clients.” (
Bockrath v. Alridch Chem. Co., Inc. (1999) 21 Cal.4th 71, 82.)

Defendants move for sanctions on the grounds that Starkey’s claims were presented
without legal or factual support because five of the defendants have never spoken to
or had any interaction with Plaintiff, one has not spoken or interacted with her since
2002, four have not spoken with her or had any interaction with her since 2009, and one has not spoken to her since prior to 2010. Defendants’ motion is supported by
their declarations.

In opposition to the motion, Plaintiff proffers her declaration, Ooley’s declaration, as
well as other evidence to demonstrate that there was factual support for her claims.
She argues that because she lives with Ooley, any kind of attack on the house or on
Ooley is also an attack on her. She argues that given the totality of Defendants’
actions as a whole, there was a distinct and ongoing effort to alienate Plaintiffs and
drive them out of the neighborhood.

Given the record before it, the Court cannot find that the papers Plaintiff has presented
to the Court were frivolous, legally unreasonable or without factual foundation.

Accordingly, the motion is DENIED.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.

Item 4 2012-00129839-CU-PO

Garr Ooley vs. Leland Murray

Nature of Proceeding: Motion for Summary Adjudication (Garr Ooley)

Filed By: Gallagher Mark T.

*** If oral argument is requested, the parties are directed to notify the clerk and
opposing counsel at the time of the request which of the Issues identified in the
Master Statement of Undisputed Material Facts” and which of the Undisputed
Material Facts offered by the moving defendants will be addressed at the hearing
and the parties should be prepared to point to specific evidence which is
claimed to show the existence or non-existence of a triable issue of material
fact. ***

Plaintiff’s request for judicial notice is granted. In taking judicial notice of these
documents, the court accepts the fact of their existence, not the truth of their contents.
th
(See Professional Engineers v. Dep’t of Transp. (1997) 15 Cal.4 543, 590 [judicial
notice of findings of fact does not mean that those findings of fact are true]; Steed v.
Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 120-121.)

Defendants’ objections to evidence are ruled upon as follows:

Sustained: 2, 6, 8, 9, 11, 13, 14, 17, 19, 20, 21, 22, 24, 25, 27, 28, 30, 31, 32, 34, 35,
36, 37, 38, 39, 40, 42, 43, 47, 50, 53, 55, 57, 59, 61, 62, 63, 64, 65, 66, 68, 69, 71, 72,
74, 75, 76, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 90, 91, 93, 94, 96, 97. Overruled: 1, 3, 4, 5, 7, 10, 12, 14, 16, 18, 23, 26, 29, 33, 41, 44, 45, 46, 48, 49, 51,
52, 54, 56, 58, 60, 62, 67, 70, 73, 77, 89, 92, 95.

In this action, Ooley, along with his girlfriend, Janis Starkey, allege that their neighbors,
the Defendants, engaged in a conspiracy to harass Plaintiffs to oust them from their
home. They allege that Defendants engaged in wrongful conduct, such as damaging
Plaintiffs’ property, following Ooley while he was jogging, yelling at Plaintiffs, filing
baseless applications for civil harassment restraining orders against Ooley, and
providing false information to police. This action is similar to a federal action filed on
January 12, 2012 (“Federal Action”), which was dismissed.

The instant action was thereafter filed on August 10, 2012.

Defendants move for summary adjudication on the Intentional Infliction of Emotional
Distress, Malicious Prosecution, and Trespass causes of action.

Defendants are admonished for failing to identify the specific causes of action to which
they seek summary adjudication. CRC Rule 3.1350(b).

Plaintiff is admonished for failing to comply with CRC Rule 3.1350(f). Where Plaintiff
disputes a fact, the opposing separate statement must state the nature of the dispute.
Here, Plaintiff fails to state the nature of the dispute, but merely identifies multiple
paragraphs and exhibits without explaining “how” the evidence renders a given fact
“disputed.”

Intentional Infliction of Emotional Distress

Defendants move for summary adjudication on this cause of action on the grounds that
it is barred by the applicable two-year statute of limitations and Plaintiff cannot
establish the elements of intent or outrageous conduct.

Because Defendants’ separate statement is organized by individual defendant, the
Court will follow the same structure.

The Court notes that Defendant’s separate statement combines all three of the above
grounds into one issue, without identifying or specifying which material facts go to
which argument. And the Court declines to speculate as to which material fact goes to
which argument. Thus, the presence of a single triable issue of material fact or failure
to satisfy the evidentiary burden for a single material fact mandates denial of summary
adjudication regardless of whether the material fact applies to one or all of Defendants’
arguments. See, Homestead Savings v. Superior Court (Dividend Devel. Corp.) (1986)
179 Cal.App.3d 494, 498; Weil & Brown, Civil Procedure Before Trial, Ch.10:88 et seq
.)

Nicolas Maurer

Defendants’ separate statement provides: “Plaintiffs admit Nicolas Maurer has done
nothing to cause Garr Ooley emotional distress since prior to August 10, 2010” (UMF
1), “Nicolas Maurer has never taken any action with the intent to cause Garr Ooley
emotional distress, nor has he taken any action with reckless disregard for the
probability that what
he was doing might cause Garr Ooley emotional distress” (UMF 2). Under Code of Civil Procedure §437c(e), “summary judgment may be denied in the
discretion of the court, … where a material fact is an individual’s state of mind, … and
that fact is sought to be established solely by the individual’s affirmation thereof.”
Since proof of this fact is essential to summary adjudication here and since this fact
clearly relates to Mr. Maurer’s own state of mind, the Court will exercise its discretion
and deny summary adjudication pursuant to
§437c(e). When a party moving for summary adjudication is required to prove a
witness’ state of mind in order to prevail on the motion and the only evidence
presented is a declaration from that individual, §437c(e) authorizes the court to deny
the motion “as if no evidence at all had been presented as to that required element.” (
Viner v. Sweet (2004) 117 Cal.App.4th 1218, 1230.) The same is true where the only
proof of a material fact offered in support of the motion is a declaration by the sole
witness to that fact. (Id.) Denial of summary judgment under §437c(e) does not mean
that a triable issue of fact exists but rather that “there is an absence of credible
evidence needed by the moving party to prevail on summary judgment.” (Id., at 1230-
1231.) Because of this deemed absence of evidence to support this fact, the motion
for summary adjudication is DENIED.

Alan Spinner

Defendants’ separate statement provides “Alan Spinner has never stalked or followed
Garr Ooley or taken any other action with the intention of causing him emotional
distress.” (UMF 3.) Defendants rely solely on Mr. Spinner’s declaration to support this
fact.

Pursuant to Code of Civil Procedure §437c(e), the Court will exercise its discretion and
DENIES the motion for summary adjudication.

Michelle Kirwan

Defendants’ separate statement provides: “There is no evidence that Michelle Kirwan
damaged Garr Ooley’s plants” (UMF 4), “Michelle Kirwan did not testify in court with
the intention of causing Garr Ooley emotional distress” (UMF 5), “Michelle Kirwan has
not spoken with Garr Ooley since 2009 and has never taken any action to cause him
emotional distress” (UMF 6). Defendants rely mainly on Ms. Kirwan’s declaration to
support these facts.

Pursuant to Code of Civil Procedure §437c(e), the Court will exercise its discretion and
DENIES the motion for summary adjudication.

Stephanie Murray

Defendant’s separate statement provides: “Stephanie Murray has never had any
action with the intent of causing Garr Ooley emotional distress or with the reckless
disregard for his emotional well-being.” (UMF 7). Defendants rely solely on Ms.
Murray’s declaration to support these facts.

Pursuant to Code of Civil Procedure §437c(e), this adjudication, the Court will exercise
its discretion and DENIES the motion for summary adjudication.

Jonathan Hanly Defendants’ separate statement provides: “By calling 911, Jonathan Hanly did not
intend to cause Garr Ooley emotional distress.” (UMF 8). Defendants rely solely on
Mr. Hanly’s declaration to support this fact.

Pursuant to Code of Civil Procedure §437c(e), this adjudication, the Court will exercise
its discretion and DENIES the motion for summary adjudication.

Dreama Larish

Defendants’ separate statement provides: “There is no evidence to support the claim
that Dreama Larish intentionally damaged Garr Ooley’s lattice work” (UMF 9), “There is
no evidence to support the claim that Dreama Larish “followed” Garr Ooley while he
was jogging” (UMF 10), “Dreama Larish has never taken any action with the intention
of causing Garr Ooley emotional distress.” (UMF 11).
Defendants rely mainly on Ms. Larish’s declaration to support these facts.

Pursuant to Code of Civil Procedure §437c(e), the Court will exercise its discretion and
DENIES the motion for summary adjudication.

Yvonne Steiner Mauer

Defendants’ separate statement provides: “Garr Ooley’s claim against Yvonne Steiner
Maurer is based entirely on his belief that the events in the neighborhood “wouldn’t
have happened” if Yvonne Steiner Maurer hadn’t held meetings in her home” (UMF
12), “Yvonne Steiner Maurer has never taken any action with the intent of causing Garr
Ooley emotional distress.” (UMF 13). Defendants rely mainly on Ms. Mauer’s
declaration to support these facts.

Pursuant to Code of Civil Procedure §437c(e), the Court will exercise its discretion and
DENIES the motion for summary adjudication.

Anthony Larish

Defendants’ separate statement provides: “The alleged “stalking” of Garr Ooley ended
in 2008” (UMF 14), “Anthony Larish never went into his trailer or
took any other action with the intent of causing Garr Ooley emotional distress” (UMF
15). Defendants rely mainly on Mr. Larish’s declaration to support these facts.

Pursuant to Code of Civil Procedure §437c(e), the Court will exercise its discretion and
DENIES the motion for summary adjudication.

Mary Murray

Defendants’ separate statement provides: “Mary Murray has never engaged in any
conduct with the intent of causing Garr Ooley emotional distress.” (UMF 16).
Defendants rely solely on Ms. Murray’s declaration to support this fact.

Pursuant to Code of Civil Procedure §437c(e), the Court will exercise its discretion and
DENIES the motion for summary adjudication.

Trevor Kirwan Defendants’ separate statement provides: “There is no evidence to support the claim
that Trevor Kirwan poisoned Garr Ooley’s plants” (UMF 17), “Trevor Kirwan has never
taken any action with the intent of causing Garr Ooley emotional distress” (UMF 18).
Defendants rely mainly on Mr. Kirwan’s declaration to support these facts.

Pursuant to Code of Civil Procedure §437c(e), the Court will exercise its discretion and
DENIES the motion for summary adjudication.

Leland Murray

Defendants’ separate statement provides: “Leland Murray has never taken any action
with the intent to cause Garr Ooley emotional distress.” (UMF 16). Defendants rely
solely on Mr. Murray’s declaration to support this fact.

Pursuant to Code of Civil Procedure §437c(e), the Court will exercise its discretion and
DENIES the motion for summary adjudication.

Malicious Prosecution

Defendants move for summary adjudication of the malicious prosecution cause of
action on the grounds that none of the Defendants initiated the prosecution or were
instrumental in the prosecution.

“Malicious prosecution consists of initiating or procuring the arrest and prosecution of
another under lawful process, but from malicious motives and without probable
cause.” (Cedars-Sinai Medical Ctr. v. Superior Court (1988) 206 Cal. App. 3d 414,
417.) “One may be civilly liable for malicious prosecution without personally signing the
complaint initiating the criminal proceeding.” (Greene v. Bank of America (2013) 216
th
Cal.App.4 454, 463.) “‘The test is whether the defendant was actively instrumental in
causing the prosecution.’ ‘Cases dealing with actions for malicious prosecution against
private persons require that the defendant has at least sought out the police or
prosecutorial authorities and falsely reported facts to them indicating that plaintiff has
committed a crime.’” (Cedars-Sinai, supra, 206 Cal. App. 3d. at 417 [internal citations
omitted].) Moreover, a person who inflicts harm by aiding and abetting a malicious
prosecution which someone else has instituted may be liable for malicious
prosecution. (Lujan v. Gordon (1977) 70 Cal.App.3d 260, 264.)

John Hanly

Defendants’ separate statement provides: “Jonathan Hanly testified truthfully at Garr
Ooley’s trial” (UMF 20), “Jonathan Hanly did not act with malice in
calling the authorities or when testifying at trial” (UMF 21).

Defendants’ cite to Leland Murray’s declaration to support these facts. Mr. Murray’s
declaration, however, fails to proffer any evidence regarding Mr. Hanly’s testimony.
Accordingly, the motion for summary adjudication is DENIED.

Mary Murray

Defendants’ separate statement provides: “Mary Murray testified truthfully at Garr
Ooley’s trial” (UMF 22), “Mary Murray did not act with malice by testifying at Garr
Ooley’s trial” (UMF 23). Defendants rely solely on Ms. Murray’s declaration to support
these facts.

Pursuant to Code of Civil Procedure §437c(e), the Court will exercise its discretion and
DENIES the motion for summary adjudication.

Stephanie Murray

Defendants’ separate statement provides: “Stephanie Murray did not initiate the
prosecution of Garr Ooley (UMF 24), “Stephanie Murray did not act with malice by
testifying at Garr Ooley’s trial” (UMF 25). Defendants rely solely on Ms. Murray’s
declaration to support these facts. According to Ms. Murray, on November 1, 2010,
she witnessed Plaintiff striking her father, and his vehicle with a baseball bat.
(Declaration of Stephanie Murray, ¶ 4.) She called 911 to report the commission of a
crime. (Id.) After the police arrived she told them what she witnessed. (Id.) She
never asked the police to press charges or take any action against Mr. Ooley. (Id.)
She met with the assistant District Attorney and answered all of his questions honestly.
(Id. ¶ 5.) She thereafter testified truthfully at Plaintiff’s trial pursuant to a trial
subpoena. (Id.)

As noted above, however, the test is not whether the defendant personally signed the
complaint initiating the criminal proceeding (Greene, supra, 216 Cal.App.4th at 463),
but whether the defendant has at least sought out the police or prosecutorial
authorities and falsely reported facts to them indicating that plaintiff has committed a
crime. (Cedars-Sinai, supra, 206 Cal. App. 3d. at 417 [internal citations omitted].)

Here, by Ms. Murray’s own admission, she called the police to report the incident.
Thus, it appears that she “sought out” the police.

The next issue is whether Ms. Murray “falsely reported” facts to the police. Plaintiff
disputes that Ms. Murray acted truthfully. Plaintiff’s declaration states that Ms. Murray
“falsely reported the Assault and Battery to police officer Barron” and did not testify
truthfully at trial. (Declaration of Garr Ooley, ¶ 202.) The Court finds that Plaintiff has
demonstrated a triable issue of material fact. Accordingly, the motion for summary
adjudication is DENIED.

Moreover, with the respect to Ms. Murray’s state of mind, pursuant to Code of Civil
Procedure §437c(e), the Court will exercise its discretion and DENIES the motion for
summary adjudication.

Leland Murray

Defendants’ separate statement provides: “Leland Murray did not act with
malice” (UMF 26), “Leland Murray did not initiate the prosecution of Garr Ooley” (UMF
27), “Leland Murray did not act with malice by testifying at Garr Ooley’s trial” (UMF 28).
Defendants rely solely on Mr. Murray’s declaration to support these facts. According
to Mr. Murray, Plaintiff attacked him on November 1, 2010. (Declaration of Leland
Murray, ¶ 4.) When the police arrived, he told them what happened. (Id.) He never
asked that Plaintiff be prosecuted. (Id. ¶ 5.) The District Attorney contacted Mr.
Murray to review a film of the attack. (Id.) He thereafter testified truthfully at Plaintiff’s
trial pursuant to a trial subpoena. (Id.)
Here, although Mr. Murray did not call the police, he spoke to the police at the time of
incident regarding the event. He also thereafter spoke with the District Attorney
regarding the incident. Plaintiff proffers evidence that Mr. Murray “falsely reported the
Assault and Battery to police officer Barron.” (Declaration of Garr Ooley, ¶ 201.) This
could be construed as “aiding and abetting” Plaintiff’s prosecution. Moreover, there is
a dispute as to whether Mr. Murray testified truthfully at trial. (Id.) Accordingly, the
Court finds that Plaintiff has demonstrated a triable issue of material fact. The motion
for summary adjudication is DENIED.

Moreover, with the respect to Mr. Murray’s state of mind, pursuant to Code of Civil
Procedure §437c(e), the Court will exercise its discretion and DENIES the motion for
summary adjudication.

Trespass

Defendants move for summary adjudication of the trespass cause of action on the
grounds that Plaintiff has no legal interest in Ms. Starkey’s property. Here, Plaintiff
alleges that Leland Murray trespassed on the property on November 1, 2010 when he
drove onto Ms. Starkey’s driveway with his truck.

Defendants’ separate statement provides “Garr Ooley neither owns nor leases the
property in question” (UMF 29), “there was no damage to the property as a
result of the trespass” (UMF 30).

Plaintiff does not dispute that he neither owns nor leases the property. He argues,
however, that because he was a lawful occupant of the property, he has a viable
trespass claim. Plaintiffs further argue that they were harmed by their temporary loss
of quiet enjoyment of their property.

The Court agrees with Plaintiff. Trespass is an unlawful interference with possession
of property. (Staples v. Hoefke (1987) 189 Cal. App. 3d 1397, 1406.) Here, Plaintiff
lived on the Property with Ms. Starkey. Therefore, he had a possessory interest in the
property. Additionally, no actual damages need be shown. “An action for trespass will
support an award of nominal damages where actual damages are not shown.
However, nominal damages need not be awarded where no actual loss has occurred.”
(Id.)

Accordingly, the motion for summary adjudication as to the trespass cause of action is
DENIED.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.

Item 5 2012-00129839-CU-PO

Garr Ooley vs. Leland Murray

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication (Janis Starkey)

Filed By: Gallagher Mark T.

Defendants’ objections to evidence are ruled upon as follows:

Overruled: 1, 3, 4, 5, 7, 10, 12, 14, 16, 18, 23, 26, 29, 33, 41, 44, 45, 46, 48, 49, 51,
52, 54, 56, 58, 60, 62, 67, 70, 73, 77, 89, 92, 95.

The instant action was thereafter filed on August 10, 2012.

Defendants move for summary adjudication on the Intentional Infliction of Emotional
Distress and Trespass causes of action.

Defendants are admonished for failing to identify the specific causes of action to which
they seek summary adjudication. CRC Rule 3.1350(b).

Intentional Infliction of Emotional Distress

Because Defendants’ separate statement is organized by individual defendant, the
Court will follow the same structure.

Nicolas Maurer

Defendants’ separate statement provides: “Plaintiffs admit Nicolas Maurer has done
nothing to cause Janis Starkey emotional distress since prior to August 10,
2010” (UMF 1), “Nicolas Maurer has never taken any action with the intent to cause
Janis Starkey emotional distress nor has he ever taken any action with
reckless disregard for the probability that what he was doing might cause emotional
distress.” (UMF 2).

Under Code of Civil Procedure §437c(e), “summary judgment may be denied in the
discretion of the court, … where a material fact is an individual’s state of
mind, … and that fact is sought to be established solely by the individual’s affirmation
thereof.” Since proof of this fact is essential to summary adjudication here and since
this fact clearly relates to Mr. Maurer’s own state of mind, the Court will exercise its
discretion and deny summary adjudication pursuant to
§437c(e). When a party moving for summary adjudication is required to prove a
witness’ state of mind in order to prevail on the motion and the only evidence
presented is a declaration from that individual, §437c(e) authorizes the court to deny
the motion “as if no evidence at all had been presented as to that required
element.” (Viner v. Sweet (2004) 117 Cal.App.4th 1218, 1230.) The same is true
where the only proof of a material fact offered in support of the motion is a declaration
by the sole witness to that fact. (Id.) Denial of summary judgment under §437c(e)
does not mean that a triable issue of fact exists but rather
that “there is an absence of credible evidence needed by the moving party to prevail
on summary judgment.” (Id., at 1230-1231.) Because of this deemed absence of
evidence to support this fact, the motion for summary adjudication is DENIED.

Mary Murray

Defendants’ separate statement provides: “The entire basis for Janis Starkey’s claim
against Mary Murray is that Mary Murray failed to intervene in an altercation between
Mr. Ooley and Leland Murray.” (UMF 3), “Mary Murray did not intend to cause Janis
Starkey emotional distress by failing to break
up the altercation between Garr Ooley and Leland Murray.” (UMF 4). Defendants rely
mainly on Ms. Murray’s declaration to support these facts. Pursuant to Code of Civil Procedure §437c(e), the Court will exercise its discretion and
DENIES the motion for summary adjudication.

Alan Spinner

Defendants’ separate statement provides: “Alan Spinner never conspired with any of
his neighbors against Janis Starkey” (UMF 5), “There is no evidence to support the
claim that Alan Spinner told his neighbors to make U-turns in front of the Starkey
home” (UMF 6).

Plaintiff attempts to dispute Defendants’ fact with her own declaration, as well as, Mr.
Ooley and Mr. Franck’s declarations. Plaintiff’s attempt, however, is unavailing and do
not substantively dispute Defendants’ facts. Specifically, the evidence proffered by
Plaintiff is wholly non-responsive, do not involve Mr. Spinner’s actions, involve actions
towards Ooley and not Plaintiff, and/or were precluded pursuant to the Court’s ruling
on Defendants’ objections.

Accordingly, the motion for summary adjudication as to Mr. Spinner is GRANTED.

John Hanly

Defendants’ separate statement provides: “Jonathan Hanly’s telephone call to the
Police Department was not intended to cause Janis Starkey emotional distress” (UMF
7), “Jonathan Hanly never instructed anyone to make any statements to Janis Starkey
nor did he instruct anyone to be rude to her” (UMF 8), “Jonathan Hanly has never
spoken with or had any interaction with Janis Starkey” (UMF 9).
Defendants rely solely on Mr. Hanly’s declaration to support these facts.

Pursuant to Code of Civil Procedure §437c(e), the Court will exercise its discretion and
DENIES the motion for summary adjudication.

Dreama Larish

Defendants’ separate statement provides: “There is no evidence to support the claim
that Dreama Larish intentionally caused damage to the fence separating the Larish
and Starkey property” (UMF 10), “Dreama Larish never took any action to cause Janis
Starkey emotional distress” (UMF 11), “The alleged “peeping” incident occurred in
2008” (UMF 12). Defendants rely solely on Ms. Larish’s declaration to support these
facts.

Pursuant to Code of Civil Procedure §437c(e), the Court will exercise its discretion and
DENIES the motion for summary adjudication.

Michelle Kirwan

Defendants’ separate statement provides: “The statements made by Michelle Kirwan
at the hearing to obtain a restraining order were not intended to cause Janis Starkey
emotional distress” (UMF 13), “Michelle Kirwan has never made any disparaging
remarks about Garr Ooley” (UMF 14), “Michelle Kirwan has had no communication or
interaction with Janis Starkey since 2009” (UMF 15). Defendants rely solely on Ms.
Kirwan’s declaration to support these facts. Pursuant to Code of Civil Procedure §437c(e), the Court will exercise its discretion and
DENIES the motion for summary adjudication.

Stephanie Murray

Defendants’ separate statement provides: “Stephanie Murray has never had any
contact with Janis Starkey” (UMF 16).

Plaintiff attempts to dispute Defendants’ fact with her own declaration, as well as, Mr.
Ooley and Mr. Franck’s declarations. Plaintiff’s attempt, however, is unavailing and do
not substantively dispute Defendants’ facts. Specifically, the evidence proffered by
Plaintiff is wholly non-responsive, do not involve Ms. Murray’s actions, involve actions
towards Ooley and not Plaintiff, and/or were precluded pursuant to the Court’s ruling
on Defendants’ objections.

Accordingly, the motion for summary adjudication as to Stephanie Murray is
GRANTED.

Yvonne Steiner Maurer

Defendants’ separate statement provides: “Yvonne Steiner Maurer never held secret
meetings in her home to discuss Janis Starkey” (UMF 17), “Yvonne Steiner Maurer
has never spoken to or had any interaction with Janis Starkey” (UMF 18).

Plaintiff attempts to dispute Defendants’ fact with her own declaration, as well as, Mr.
Ooley and Mr. Franck’s declarations. Plaintiff’s attempt, however, is unavailing and do
not substantively dispute Defendants’ facts. Specifically, the evidence proffered by
Plaintiff is wholly non-responsive, do not involve Ms. Murray’s actions, involve actions
towards Ooley and not Plaintiff, and/or were precluded pursuant to the Court’s ruling
on Defendants’ objections.

Accordingly, the motion for summary adjudication as to Stephanie Murray is
GRANTED.

Trevor Kirwan

Defendants’ separate statement provides: “Trevor Kirwan never damaged Janis
Starkey’s plant and there is no evidence to support the claim that he did” (UMF 19),
“Trevor Kirwan did not testify at a restraining order hearing against Garr Ooley with the
intent of causing Janis Starkey emotional distress” (UMF 20), “Trevor Kirwan has had
no communication with Janis Starkey since 2009” (UMF 21). Defendants rely mainly
on Mr. Kirwan’s declaration to support these facts.

Pursuant to Code of Civil Procedure §437c(e), the Court will exercise its discretion and
DENIES the motion for summary adjudication.

Anthony Larish

Defendants’ separate statement provides: “Anthony Larish did not poison Janis
Starkey’s tree and there is no evidence to support the claim that he did” (UMF 22),
Anthony Larish and Janis Starkey participated in mediation in October 2009,
which addressed issues regarding the trailer and fence (UMF 23), “Anthony Larish has
had no interaction with Janis Starkey since October 2009” (UMF 24), “Anthony Larish
never went into his trailer worked on his fence with the intent of
causing Janis Starkey emotional distress” (UMF 25). Defendants rely mainly on Mr.
Larish’s declaration to support these facts.

Pursuant to Code of Civil Procedure §437c(e), the Court will exercise its discretion and
DENIES the motion for summary adjudication.

Leland Murray

Defendants’ separate statement provides: “Leland Murray has never spoken with Janis
Starkey” (UMF 26), “Leland Murray has never taken any action to cause Janis Starkey
emotional distress” (UMF 27), “Leland Murray testified truthfully at Garr Ooley’s trial
for assault and vandalism” (UMF 28). Defendants rely solely on Mr. Murray’s
declaration to support this fact.

Pursuant to Code of Civil Procedure §437c(e), the Court will exercise its discretion and
DENIES the motion for summary adjudication.

Trespass

Defendants move for summary adjudication of the trespass cause of action on the
grounds that Plaintiff did not sustain damage.

Defendants’ separate statement provides “there was no damage to the property as a
result of the trespass.” (UMF 29).

Plaintiff argues that she was harmed by her temporary loss of quiet enjoyment of her
property.

The Court agrees with Plaintiff. Trespass is an unlawful interference with possession
of property. (Staples v. Hoefke (1987) 189 Cal. App. 3d 1397, 1406.) To actual
damages need be shown. “An action for trespass will support an award of nominal
damages where actual damages are not shown. However, nominal damages need not
be awarded where no actual loss has occurred.” (Id.)

Accordingly, the motion for summary adjudication as to the trespass cause of action is
DENIED.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.

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