1. MCV-219333; CACH v. Arenas:

Plaintiff has moved to vacate a dismissal that was entered by the court. Apparently, at the trial call of the matter, the Plaintiff’s attorney was scheduled to be in two departments at the same time. While in Department 17, the Plaintiff’s attorney asked the clerk to email the Department 19 clerk to let them know that he would be late. After finishing up in Department 17, the Plaintiff’s attorney appeared in Department 19, only to find that the matter had been dismissed—due to his absence.

Plaintiff is now asking to be relieved of the dismissal pursuant to CCP § 473. The motion has not drawn opposition.
The courts have repeatedly stated that it is the policy of our law to allow each contested cause to be tried on its merits, and CCP §473 is a legislative expression of this policy. Pearson v. Continental Airlines (1970) 11 Cal. App.3d 613, 619; Hodge Sheet Metal Products v. Palm Springs Riviera Hotel (1961) 189 Cal. App. 2d 653, 657.
Here, the Plaintiff has demonstrated that the dismissal was due to inadvertence, and has sought relief promptly. Further, the Defendant has not provided any evidence of prejudice. Accordingly, the motion is GRANTED. The Plaintiff is to draft an order consistent with this ruling.

2. MSC-181980- Soto, et al. v. Sonoma:

PARTIES ARE REQUIRED TO APPEAR

3. SCV-250040; Robello v. McSorley:

This is a dispute over a purported driveway easement. Apparently a large lot in Petaluma was subdivided into three separate lots in 1954. In 2009, the Robellos purchased one of the three lots, and the Defendants McSorley purchased another. The Robellos had been longtime tenants on the property that they purchased.
The Robellos' lot would be landlocked and have no access to Wilson Street, but for a travel easement that passes through the property of Defendant McSorley.

The matter was successfully mediated, and a settlement was reduced to writing. Unfortunately, it seems that the parties cannot agree on what performance the settlement requires. The Plaintiffs, the moving party, ask the court to order Defendant McSorley to: (1) pay over $2,000; (2) sign off on the ingress/egress and utility easements; (3) allow the Plaintiffs to tie into the water supply through a new pipe that was placed in the existing easements. If the Defendants perform these items, the Plaintiffs will authorize payment of $30,000 as contemplated by the settlement.
Defendant McSorley opposes, contending that the disagreement between the parties involves the placement and course of the utility easement. Defendant McSorley argues that the Plaintiffs placement of the utilities is not “code compliant” as required by the settlement, and therefore, he cannot in good faith sign off on the utility easement. Defendant argues that the Plaintiffs have placed both the water and electrical lines in the same trench. Defendant contends that under PG&E guidelines, such a design would be rejected.

Here, there is no dispute as to whether an enforceable settlement agreement was entered into or not. The question is whether the parties have performed, and whether judgment should be entered on behalf of the Plaintiff for the terms of the agreement.

The parties dispute, primarily, whether the utilities are “code compliant” as situated. The settlement agreement does not define the “code” or how to determine compliance therewith. The Plaintiffs offer a hearsay letter from a third party which purports to opine that the current utilities are “code compliant.” Exhibit E to Robelo Dec. The Defendant, on the other hand, offers hearsay evidence of what PG&E would require under the circumstances—neither party has submitted competent evidence that would allow the court to rule on declarations alone. Importantly, neither party provided evidence as to what the term “code compliant” was meant by the parties at the time of the settlement.
Given the divergent opinions on the terms of the settlement agreement, the court will set the matter for short cause hearing to allow testimony on this issue, and the other disputed terms in the agreement. See Skulnick v. Roberts Express, Inc. (1992) 2 Cal. App. 4th 884. A trial court, when ruling on a section 664.6 motion, acts as a trier of fact. Fiore v. Alvord (1985) 182 Cal.App.3d 561, 565. Section 664.6's “express authorization for trial courts to determine whether a settlement has occurred is an implicit authorization for the trial court to interpret the terms and conditions to settlement.” Id. at p. 566.

The parties are to appear for scheduling. Further, the parties are ordered to meet and confer as to the performance remaining under the settlement to see if a resolution without court intervention would be possible.

4. SCV-251934; Kottre v. Ford Motor Company:

This matter has been continued to Tuesday, July 9, 2013 at 8:30 a.m. in Department 19.

5. SCV-252224; Eckhart v. Sonoma County Open Space District:

This is an inverse condemnation and nuisance case brought by Plaintiffs Harvey and Esther Eckhart (Plaintiffs). The Plaintiffs allege, in their First Amended Complaint the following causes of action: (1) Inverse Condemnation; (2) Dangerous Condition; (3) Nuisance; (4) Negligence.

The gravamen of the FAC is that the Defendant has developed a park adjacent to their property which has substantially burdened their property. The Plaintiffs allege that the Defendant’s development will increase public traffic along an easement, destroy the natural setting. Further, the Plaintiffs allege that the Defendant redesigned the roadway that has increased the flow of water onto the Plaintiffs’ property.

The Defendant has demurred to the entire FAC. The Defendant argues that the FAC is fatally uncertain. The Defendant argues that the FAC fails to specify which easement that the Defendant is overburdening. The Defendant provides a substantial number of documents (that are attached to its request for judicial notice, which is granted), which it contends demonstrate that there are more than one easement at issue—and that the Defendant is not doing anything that would overburden the easement. Further the Defendant contends that the FAC has failed to allege facts necessary to state a claim. The Defendant argues that the Plaintiffs have not alleged how its actions have substantially or peculiarly burdened the property in question.

Here, the 1st COA is quite straightforward, and states a cause of action for inverse condemnation. The Plaintiffs allege that the Defendant redesigned a roadway that caused a substantial increase of water which damaged them. FAC ¶ 7. These allegations are incorporated into the 1st COA. FAC ¶ 13.

The Defendant relies heavily on its interpretation of the documents attached to its request for judicial notice. It is proper for a trial court in ruling upon a demurrer to consider facts of which it has taken judicial notice, including the existence of a document, though not the truthfulness or proper interpretation of the contents of the document. AL Holding Co. v. O'Brien & Hicks, Inc. (1999) 75 Cal.App.4th 1310, review denied. The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable. See Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 605.

Further, the Defendant argues, in reply, that Arkansas Game and Fish Com'n v. U.S. (2012) 133 S.Ct. 511, limits the reach of inverse condemnation claims based on flooding. Defendant contends that this case holds that a water flow condemnation claim is only available where the increased flow is a foreseeable result of government action which severely interferes with investment-backed expectations. Other than providing a case citation, and a brief recitation of its interpretation of the holding, the Defendant provides no basis for the application of that case here. Indeed, a reading of that case demonstrates that it is not applicable to the instant case. In Arkansas Game and Fish Com'n v. U.S. the Court held that there are no magic formulas that enable a court to judge, in every case, whether a given government interference with property is a taking. The Court noted that is has drawn some bright lines, but in the main, takings claims turn on situation-specific factual inquiries. Citing Penn Central Transp. Co. v. New York City (1978) 438 U.S. 104, 124.

As previously noted, the Plaintiff has, essentially conceded on the rest of the causes of action, and seeks leave to amend. The Defendant argues that the Plaintiff should not be afforded leave to amend, on account that the Plaintiff provided no indication of how the FAC may be amended to overcome the deficiencies pointed out in its demurrer. Here, the policy of liberally allowing amendments should be adhered to; but the Plaintiff is cautioned, that such liberality may not be available in the next round of pleadings.

Accordingly, the Defendant’s demurrer to the 1st cause of action is OVERRULED, the Defendant’s demurrer to the 2nd, 3rd, and 4th causes of action are SUSTAINED with leave to amend. The Defendant is to draft an order consistent with this ruling.

6. SCV-252565; Binder v. McDonald’s Bony Nugget:

This is a case where the Plaintiff alleges that she purchased food from a restaurant that had a hard item in it that broke a tooth. The Plaintiff alleges within her First Amended Complaint: (1) Negligence; (2) Intentional Tort; (3) Conversion; and (4) Products Liability.

Defendants Mendes and DCT have demurred and moved to strike. The Plaintiff has filed an opposition.
The Defendants’ general demurer to the First, Second, Third and Fourth causes of action contained in Plaintiff’s unverified First Amended Complaint is sustained on the grounds that Plaintiff has not pled sufficient facts to sustain any of its causes of action. The third cause of action is sustained without leave to amend, there are no allegations that the Defendants intentionally and wrongfully converted her chicken nugget and the Plaintiff pleads she consented to the taking of the chicken nugget which is a complete affirmative defense that cannot be cured by amendment.
Plaintiff’s unverified First Amended Complaint fails to allege any facts that demonstrate that the Defendants committed malicious conduct or that the Defendants authorized or ratified any such actions. Further the irrelevant and improper allegations along with their corresponding exhibits in Plaintiff’s unverified First Amended Complaint must be stricken. Plaintiff’s claim for an award of punitive damages as to Mendes and DCT must be stricken entirely from Plaintiff’s First Amended Complaint.

The Defendants are to draft an order consistent with this ruling.

7. SCV-252792; SBI v. One Step:

Demurrers Overruled.

8. SCV-253134- Midyett v. Calif. DMV:

Petitioner Midyett is seeking a writ of mandate to the DMV commanding it to reissue the Petitioner’s Class A Commercial Driver’s License. The Petitioner served the petition, notice and exhibits on the DMV. A hearing on the matter was set for May 21, 2013.

On May 16, 2013, the Respondent filed an opposition. Under CCP § 1005(b), the opposition was due nine court days prior to the hearing. The opposition comes after the date that the Petitioner would have been obligated to file a reply.

Accordingly, the court feels compelled to CONTINUE the hearing to July 30, 2013 to allow the Petitioner to respond to the opposition, if he chooses, within the time frame dictated by CCP § 1005(b). The Respondent is to send notice of the continued hearing.

9. SCV-253463- In Re: Dennis W. Mitcham:

This is on calendar for a Petition to Transfer of Structured Settlement Payments. Mr. Mitcham, the proposed payee has agreed to sell his interest in $60,000, to be paid to him in July 2013, for a lump sum of $9,750. The annuity was purchased for Mr. Donaldson in settlement of a workers compensation claim he settled in 1991. The Petition appears to have been served on all interested parties and the Attorney General.

The Petition appears to satisfy the requirements of the applicable Insurance Code sections. Mr. Mitcham has averred that he intends to use the lump sum payment to travel to Montana to attend his daughter’s wedding.
The Petition for Approval of Transfer of Structured Settlement Payment Rights is GRANTED. The petitioner is to d