Law and Motion Calendar
Wednesday, May 22, 2013 at 3:30 p.m.
Courtroom 18 -- Hon. Nancy Case Shaffer
3055 Cleveland Avenue, Santa Rosa, CA
CourtCall is available for all Law & Motion appearances, EXCEPT parties in small claims cases and 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 Judge Shaffer's Judicial Assistant by telephone at (707) 521-6729, and all other opposing parties of your intent to appear by 4:00 p.m. today, Tuesday, May 21, 2013. Parties in small claims cases and motions for claims of exemption are exempt from this requirement.
1. 220647 – Town Center Commons v. Kennedy
Plaintiff’s motion for summary judgment is denied. Plaintiff has established all of the necessary elements of its claim for unpaid HOA assessments. Defendants’ affirmative defenses of unclean hands and breach of fiduciary duty are barred by the rule stated in Park Place Estates Homeowner’s Assn. v. Naber (1994) 29 Cal.App.4th 427, 432. However, Defendants have presented evidence contradicting Plaintiff’s interpretation of the language in the Settlement Agreement relied on by the Plaintiffs. (Compare ¶ 14 of the Cholakian Dec. with ¶ 6 of Sax’s Dec.) If the written contract is ambiguous and there is conflicting extrinsic evidence as to its interpretation, interpretation is a question of fact precluding summary judgment. Winet v. Price (1992) 4 Cal.App.4th 1159, 1165–1166; San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 317; Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, 360–361; Walter E. Heller Western, Inc. v. Tecrim Corp. (1987) 196 Cal.App.3d 149, 158.
Defendants are to draft an order consistent with this ruling.
2. 182469 – Sea Ranch Association v. Cadwell-Faso
Appearances required. Defendant is ordered to bring the documents supporting her claim that the purchaser is liable for these costs to the hearing.
3. 250209 – Greco v. Greco
The motions for summary adjudication are continued to August 7, 2013 at 3:30 p.m. in Department 18 due to the continuance of the trial date and calendar congestion.
4. 250460 – Neyman v. Green Tree
Defendant has demurred to all Causes of Action in the Complaint. On May 10, 2013, the Plaintiff filed a “non-opposition” to the instant demurrer. The demurrers to the First and Second Causes of Action are sustained with leave to amend.
The demurrer to the Third Cause of Action is sustained without leave to amend. There is no independent Cause of Action for "unjust enrichment;" only a restitution claim. (Hill v. Roll Intern. Corp. (Cal. App.1 Dist., 2011) 195 Cal.App.4th 1295 citing McKell v. Washington Mutual, Inc., supra, 142 Cal.App.4th at p. 1490; and Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793). Further, constructive trust is a remedy, not a cause of action. There being no actionable wrong, there is no basis for the relief sought.
Defendants are to draft an order consistent with this ruling.
5. 250907 – Crigler v. Goodrich
Plaintiffs’ Motion for Summary Judgment or, in the Alternative, Summary Adjudication is denied in its entirety.
The separate statement submitted by Plaintiffs does not comply with CRC Rule 3.1350 and is materially defective. Failure to comply with the separate statement requirement constitutes ground for denial of the motion, in the court's discretion. (CCP § 437c(b)(1); see Wilson v. Blue Cross of So. Calif. (1990) 222 Cal.App.3d 660, 671; and see, Truong v. Glasser (2010) 181 Cal.App.4th 102, 118). A summary judgment resolves the entire action before trial in favor of a Plaintiff who can establish every element of its case (including damages), that the Defendant has no valid defense, and there are no triable issues of fact. (See CCP §437c(p)(1); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843). Plaintiffs have not met their initial burden to demonstrate a prima facie case as to the entire lawsuit. Plaintiffs have not set forth any facts with respect to the elements of Negligent Misrepresentation, Negligence, Conspiracy to Defraud, or Financial Elder Abuse. (See Teselle v. McLoughlin (2009) 173 Cal.App.4th 156 (holding that where the moving parties' separate statement (§ 437c(b)(1)) did not address a material fact in the complaint, it did not assert a prima facie case of entitlement to a summary judgment and did not shift the burden to the opposing party).
Further, with respect to the causes of action that Plaintiffs did address, Plaintiffs failed to meet their initial burden and Defendant has demonstrated that there are several issues of material fact in dispute, for example, who made the misrepresentations at issue in this case regarding the credit worthiness of Heim. (See Defendant’s Sep. Stmt. Nos. 34, 37, 39, 40, and 41). Also, the basic fact of whether Plaintiff Richard Abel was a lender in the Heim Loan is in dispute. (See, Goodrich Dec. ¶ 23).
Accordingly, the Plaintiffs’ motion is denied in its entirety. Defendant is to draft an order consistent with this ruling.
6. 251813 – Baum v. JP Morgan
Demurrers sustained. The demurrers to the Fourth and Seventh Causes of Action are sustained with leave to amend. Plaintiff has alleged violation of Civil Code § 2923.5, however, the facts pled in the original complaint (that Plaintiff owned and rented the property and did not live there) appear to be judicial admissions depriving Plaintiff of standing to assert a violation of § 2923.5 or a violation of Business and Professions Code § 17200 based on such a violation.
Leave to amend is granted to give Plaintiff the opportunity to allege facts, if any there are, demonstrating that he has standing to bring this claim. The demurrers to all other causes of action are sustained without leave to amend.
Defendant’s request for judicial notice is granted. Defendant is to draft an order consistent with this ruling.
7. 251929 – Venegas v. Hernandez
Plaintiff’s Motion to Amend the Complaint is granted.
Under CCP § 473(a)(1), amendments are left to the sound discretion of the trial court. Judicial policy favors amendment to allow resolution of all potential claims and disputes between parties on the merits, so such motions are examined liberally. (Nestlé v. Santa Monica (1972) 6 Cal.3d 920, 939). As long as the motion is timely and will not prejudice a party, it is normally an abuse of discretion to refuse to allow amendment if the denial will deprive a party of a meritorious claim or defense. (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596).
The amendment will not result in prejudice to Defendant. (See, Hirsa v. Superior Court (Vickers) (1981) 118 Cal.App.3d 486, 490; Carrasco v. Craft (1985) 164 Cal.App.3d 796, 808-809; see also Leo v. Dunlap (1968) 260 Cal.App.2d 24, 27; Ford v. Superior Court (1973) 34 Cal.App.3d 338, 343). The amendments augment the original allegations without making any substantive changes in Plaintiff’s claims, such as changing or adding causes of action, legal theories, or new elements of damage.
Accordingly, the motion is granted. Plaintiff is to draft an order consistent with this ruling.
8. 251947 – King v. Chandler
Plaintiff’s Motion to Compel Further Responses is granted in part and denied in part.
The motion is denied as to interrogatories 2, 10, 74, 77, 80, 83-90. It is granted as to all others. Sanctions of $937.05 are awarded to the moving party, with the remainder of the sanctions reserved pending resolution of this discovery matter.
Cross-Defendant King’s demurrer is sustained in part, overruled in part. The demurrer is sustained without leave to amend as to the Third Cause of Action for Trespass. In addition to failing to allege the element of damages and actually implying that the alleged “trespass” was beneficial, the Cross-Complainant lacked authority to add such a Cause of Action when this court granted leave to amend after the last demurrer. This is without prejudice to the Cross-Complainant seeking leave to amend and add such a Cause of Action on a noticed motion.
The demurrers to the other Causes of Action are overruled. However, as to the Ninth Cause of Action, the Cause of Action is adequately plead, and thus limited to, only the work specified, i.e., “tree and stump removal and landscaping work.” Should the Cross-Complainant wish to include other work in this Cause of Action, leave to amend will be necessary to add it.
Cross-Defendant American Contractor’s Indemnity Company’s demurrer is overruled.
Although the statutes listed in the allegations may not in of themselves create a private right of action, the Cross-Complainants have alleged valid Causes of Action for Liability of the Surety and for Breach of Contract regarding the obligation on the bond.
9. 84623 – Matter of the Martha Lange Trust
The motion to Set Aside Order for Sale of Property is denied as moot. The Trustee obtained permission to sell the property and entered into a contract for sale with a bona fide purchaser for value prior to Ms. Lange’s death. Any claim for damages as a result of the sale may be addressed in further proceedings.