May 29, 2020
TENTATIVE RULINGS                             AMENDED AS TO SCV-262733 ONLY
Friday, May 29, 2020, 3:00 p.m.
Courtroom 16 – Hon. Patrick M. Broderick
3035 Cleveland Avenue, Suite 200, Santa Rosa
In accordance with the Addendum to First Amended Omnibus Order of the Presiding Judge issued May 27, 2020, only those persons with court hearings in criminal actions shall enter a Sonoma County Superior Court facility. Until further notice, all matters set for hearing in this courtroom shall be heard remotely through Zoom. No party or representative of a party may appear personally in Courtroom 16. CourtCall is not permitted for this calendar.
D16 – Law & Motion 3:00 p.m. Friday
Meeting ID: 858 8037 0974
Password: 145244
By Phone (same meeting ID and password as listed for each calendar):
+1 669 900 6833 US (San Jose)
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 the Court by telephone at (707) 521-6729, and all other opposing parties of your intent to appear by 4:00 p.m. today, Thursday, May 28, 2020. Parties in motions for claims of exemption are exempt from this requirement.
PLEASE NOTE: The Court WILL provide a court reporter for this calendar. If there are any concerns, please contact the Court at the number provided above.


1.         MCV-209754, Parks v. Sanchez
            APPEARANCES ARE REQUIRED on the Claim of Exemption.
2.         MCV-250260, Wells Fargo Bank, N.A. v. Herrera
Plaintiff’s Motion for Summary Judgment or in the Alternative Summary Adjudication GRANTED in full for summary judgment.
Any “party” may move for summary judgment or adjudication. Code of Civil Procedure section 437c(a), (f). A party is entitled to summary judgment if demonstrating “that the action has no merit or that there is no defense to the action or proceeding.” Code of Civil Procedure section 437c(a). For summary adjudication, the “party” may seek adjudication of one or more causes of action, affirmative defenses, claims for damages, or issues of duty if the party contends that the cause of action has no merit or that there is no defense to the cause of action, or that an affirmative defense has no merit, or that there is no merit to a claim for damages “as specified in” Civil Code section 3294, or that a party did or did not owe a duty. Code of Civil Procedure section 437c(f)(1).
For summary adjudication, each issue must entirely dispose of one or more (1) causes of action, (2) claims for punitive damages, (3) affirmative defenses, or (4) issues of duty. Code of Civil Procedure section 437c(f)(1). However, there is a split on whether a court may summarily adjudicate an issue of damages or duty that does not dispose of an entire cause of action. Such an issue could not be summarily adjudicated under some courts’ interpretation that a court can grant summary adjudication on an issue of damages or duty only if it completely disposes of an entire cause of action. See, e.g., Regan Roofing Co. v. Sup. Ct. (1994) 24 Cal.App.4th 425. However, other courts disagree. See, e.g., Linden Partners v. Wilshire Linden Associates (1998) 62 Cal.App.4th 508. The language of the statute also does not seem to comport with the Regan Roofing approach. 
A plaintiff may move for summary adjudication on affirmative defenses, asking the court to rule that an affirmative defense has no merit. Code of Civil Procedure section 437c(f)(1).
            As the party moving for summary judgment or adjudication, plaintiff, “has met [the] burden of showing that there is no defense to a cause of action if that party” produces evidence establishing each element for each cause of action or duty it wants adjudicated. Code of Civil Procedure section 437c(p)(1); Hunter v. Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282, 1287. Since Plaintiff does not need to negate affirmative defenses, the burden then shifts to Defendants to negate an element of the cause of action or establish affirmative defenses. Code of Civil Procedure section 437c(p)(1); Oldcastle Precast, Inc. v. Lumbermens Mut. Cas. Co. (2009) 170 Cal.App.4th 554, 565. Where a party seeks summary adjudication, the court may summarily adjudicate any cause of action, affirmative defense, claim for damages, or issue of duty. Code of Civil Procedure section 437c(f)(1).  
The Court must consider reasonable inferences drawn from evidence and as long as these inferences are not based on mere speculation, but on actual evidence, such inferences may create a triable issue of fact. Code of Civil Procedure section 437c(c); Waschek v. State of Calif. (1997) 59 Cal.App.4th 640, 647; Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 841; Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial, ¶10:302.
Inferences from circumstantial evidence can create a triable issue, as long as they are not based on speculation or surmise. Joseph E. DiLoreto, Inc. v. O’Neill (1991) 1 Cal.App.4th 149, 161; Aguilar v. Atlantic Richfield Corp. (2000) 78 Cal.App.4th 79, 117. These inferences must be “more likely than not.” Aguilar, 117; Leslie G. v. Perry & Assocs. (1996) 43 Cal.App.4th 472, 487. There is also a policy to liberally construe the opposition’s evidence and strictly construe the evidence of the moving party. D’Amico v. Bd. of Medical Examiners (1974) 11 Cal.3d 1, 21; Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.
A plaintiff moving for summary judgment in its favor on its own claims against the defendant merely needs to establish all the elements of each cause of action that the plaintiff raises. Code of Civil Procedure section 437C(p)(1). The plaintiff need not address any affirmative defenses, much less cross-claims, and it is up to the defendant to provide evidence either negating one or more element of a cause of action or supporting its affirmative defenses. Ibid. Code of Civil Procedure section 437C(p)(1) is express on this point, making it very clear. It says, for purposes of summary judgment or adjudication, that
[a] plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The defendant or cross-defendant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.
Since plaintiff does not need to negate affirmative defenses, the burden then shifts to defendant to negate an element of the cause of action or establish affirmative defenses. Code of Civil Procedure section 437c(p)(1). 
Plaintiff establishes all of its facts. These show that Defendant requested a credit account, Plaintiff provided it along with a credit card by mailing it to the address which Defendant provided; the agreement included written terms which stated that Defendant accepted the terms by activating and using the card and account, and that Plaintiff would advance money on the account in return for Defendant paying it back, plus any interest and fees which Defendant may have incurred; Defendant activated the card and account, using it to make charges per the terms of the agreement; Plaintiff kept account records and mailed to Defendant written monthly statements at the address which Defendant had provided; the statements itemized the debits and credits, balance, interest, and credit limit; Defendant never disputed a charge; Defendant made payments of principal and interest up through February 9, 2019 but made no further payments after that date even though Defendant still had an unpaid balance owed to Plaintiff of $7,132.98.
The complaint allegations state facts sufficient to constitute a cause of action for the common counts and breach of contract and Plaintiff’s evidence establishes facts demonstrating all the elements of both causes of action. They show that Defendant became indebted to Plaintiff on the alleged account for a certain stated sum for some consideration and Defendant has failed to pay the sum on demand. See 4 Witkin, Cal.Proc. (5th Ed.2008) Pleading, section 557. The complaint allegations are also sufficient to show breach of contract, since they show an enforceable contract between Plaintiff and Defendant, performance or excused nonperformance by Plaintiff, Defendant’s breach, and damage. Wall Street Network, Ltd. v. N. Y. Times Co. (2008) 164 Cal.App.4th 1171, 1178; Armstrong Petroleum Corp. v. Tri-Valley Oil & Gas Co. (2004) 116 Cal. App. 4th 1375, 1391 n.6; see 4 Witkin, Cal.Proc. (5th Ed.2008) Pleading, section 515. 
Defendant has not opposed the motion.
The prevailing party is to prepare an order conforming with the order of the Court, submitting it to the opposing party for review five days prior to submitting it to the Court.
3.         SCV-262733, Pomele v. Superior Healthcare Equipment & Services, Inc.
            Plaintiff’s Motion for Final Approval of Class Action Settlement and Application for Attorneys’ Fees, Costs, and Class representative Enhancement GRANTED contingent upon evidence demonstrating that the parties gave proper notice of the settlement to the California Labor & Workforce Development Agency (“LWDA”), as required. Labor Code section 2699(l)(2). The parties have demonstrated notice to the LWDA of the claims and lawsuit but not of the SettlementUpon further review of the Declaration of Attorney John Scheppach, the Court is satisfied notice of the settlement was provided to LWDA.  Motion is GRANTED.
            The determination granting the motion and final approval of the Settlement will include the request for attorneys’ fees and costs, payment of administrator expenses, and enhancement for named class Member Andrew Pomele, all made as part of this motion.
The Court finds the amounts to be fair, reasonable, appropriate, and consistent with the applicable law and circumstances as well as the Court’s finding at the hearing on the motion for preliminary approval, which this Court granted. The Court finds that notice in the Notice Packets (“Notice”) was sent to the class members as this Court required by the order granting preliminary approval, Notices for only 12 of the 133 class members have been so far found to be undeliverable, and no class member has submitted a dispute, request for exclusion, or objection.
            The Court must determine that the settlement is fair, adequate, and reasonable after a hearing often referred to as a “fairness hearing.” California Rules of court, rule 3.769(g); Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1801.  See, Officers for Justice v. Civil Service Com. (9th Cir. 1982) 688 F. 2d 615, 625; Fed. Rule of Civ. Proc., Rule 23(e).  The trial court has broad powers to determine whether the settlement is fair. Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1801; Mallick v. Superior Court (1979) 89 Cal. App. 3d 434.  The purpose of this requirement is “the protection of those class members, including the named plaintiffs, whose rights may not have been given due regard by the negotiating parties.”  Officers for Justice v. Civil Service Com., supra, 688 F. 2d at 624.
            This Settlement seems fair and reasonable. As noted above, Reed v. United Teachers Los Angeles (2012) 208 Cal.App.4th 322, at 336-337, stated that the
trial court has broad discretion to determine whether a class action settlement is fair. It should consider factors such as the strength of plaintiffs' case; the risk, expense, complexity and likely duration of further litigation; the risk of maintaining class action status through trial; the amount offered in settlement; the extent of discovery completed and the stage of the proceedings; the experience and views of counsel; the presence of a governmental participant; and the reaction of the class members to the proposed settlement. [Citations.] But the “list of factors is not exclusive and the court is free to engage in a balancing and weighing of factors depending on the circumstances of each case. [Citation.]” [Citation.] In sum, the trial court must determine that the settlement was not the product of fraud, overreaching or collusion, and that the settlement is fair, reasonable and adequate to all concerned. 
The Reed court added, at 337, that the party seeking settlement approval has the burden of showing the settlement to be “fair and reasonable” but that nevertheless “there is a presumption of fairness when: (1) the settlement is reached through arm's-length bargaining; (2) investigation and discovery are sufficient to allow counsel and the trial court to act intelligently; (3) counsel is experienced in similar litigation; and (4) the percentage of objectors is small.” 
The Lawsuit
Plaintiff is a former employee of Superior Healthcare, a California corporation operating in the hospice industry that warehouses and delivers durable medical equipment to its customers.  Plaintiff worked at Superior Healthcare from June 2017 to March 2018 as a non-exempt employee at its warehouse in Petaluma.  (Scheppach Decl. ¶ 3.)  Plaintiff's Class Action Complaint against Superior Healthcare alleges eight (8) wage-and-hour causes of action, including: (1) Unpaid Wages, (2) Failure to Provide Compliant Meal Periods, (3) Failure to Provide Compliant Rest Periods, (4) Unreimbursed Expenses, (5) Failure to Provide Accurate Wage Statements, (6) Failure to Pay All Wages Due Upon Separation, (7) Unlawful or Unfair Business Practices, and (8) Civil Penalties Pursuant To The Private Attorneys General Act of 2004 ("PAGA").  (Scheppach Decl. ¶ 4.) The parties' Settlement resolves all of these claims on a class-wide basis.  (Scheppach Decl. ¶ 5.)
The Settlement
As explained in this Court’s order granting preliminary approval of the Settlement, the Court found the Settlement terms to be as follows,
The Settlement is a non-reversionary cash settlement of $500,000.  (Settlement, p. 4 ¶ 1.O, p. 7 ¶ 4.)  The Settlement funds will be disbursed in two installments.  (Settlement, p. 21 ¶ 29.)
In exchange for their release of claims as specified in the Settlement, Class Members will be paid a proportionate share of the Net Settlement Fund, estimated at $269,583.33.  Each Class Member's payment will be determined by their number of weeks worked credited to them during the Class Period in proportion to the weeks worked credited to the entire Class.  (Settlement, pp. 8-9 ¶ 5.)  With an estimated 8,965 weeks worked and 127 Class Members, the "average" Class Member will be eligible to receive a gross settlement payment in the range of $2,121.62. (Motion, 4:11-13.)
Settlement Class
Defendant stipulates, for settlement purposes only, to certification of a Class defined as: all current and former non-exempt employees who worked for Superior Healthcare in California at any time during the Class Period. (Settlement, p. 3 ¶ E.) The Class Period is July 3, 2014 to August 3, 2019.  (Settlement, p. 3 ¶ F.) The Class is estimated to consist of 127 Class Members as of June 3, 2019.  (Scheppach Decl. ¶ 30.)
Settlement Administrator:
The Settlement Administrator selected by the parties, CPT Group Inc., is a well-established class action settlement administrator.  (Scheppach Decl. ¶ 30.) Their estimated fees of $10,000 will be paid from the Common Fund.  (Settlement, p. 6 ¶¶ 1.EE-FF; p. 11 ¶ 8.)
Class Counsel's Fees & Costs:
In connection with the Final Approval hearing, Class Counsel will apply for attorney's fees equal to 1/3 of the Common Fund ($166,666.67) and costs not to exceed $25,000. (Settlement, p. 10 ¶ 7.)
Class Representative Enhancement:
In connection with the Final Approval hearing, Class Counsel will apply for an Enhancement of $10,000 to compensate Plaintiff for his services in connection with being the Class Representative.  (Settlement, pp. 9-10 ¶ 6.)
PAGA Payment:
The Settlement allocates $25,000 of the Common Fund to alleged PAGA penalties, 75% of which ($18,750) will be distributed to the California Labor & Workforce Development Agency and the remainder of which will be shared among the Participating Class Members. (Settlement, p. 5 ¶ 1.Y, p.11 ¶ 9.)
Preliminary Approval
            After the hearing on the preliminary class-action-settlement approval on February 20, 2020, the Court entered an order on March 3, 2020 granting preliminary approval and setting the matter for a final fairness hearing.
            The order required Defendant within 10 days from the signing of the order to provide the Settlement Administrator (Administrator) with the Class List (the List); the Administrator was to update the addresses within 7 days and mail the Notice Packet (the Notice) to all members via first-class mail; the Notice was to state clearly that it concerns a class action entitling the recipient to a cash payment; if Notices were returned or not deliverable, the Administrator was obligated to make reasonable efforts to locate them, including use of skip-tracing services and databases, and send them Notices; Notices were to be conclusively presumed to have been received if not returned within 45 days of final mailing; exclusion requests, members’ disputes, or objections needed to be postmarked no later than 45 days from Notice mailing to the member and needed to be received by the Administrator; the Administrator was obligated to review the disputes with the parties in accordance with Settlement terms and then send each member making a dispute a written decision after which the member would have 7 days to opt out; 30 days before the final hearing, the Administrator was to provide counsel for all parties a Declaration of Responses (the Declaration) with complete list of timely exclusion requests and objections. Finally, the Court required the parties to file the Declaration with the Court along with all papers for the motion for final approval and request for attorneys’ fees and costs, at least 10 days before the hearing on final approval.
The Court found the Settlement to be presumptively fair, stating in its order on preliminary approval,
Here, the settlement was reached through arms-length bargaining following a full-day mediation with an experienced mediator, David Lowe. At mediation, both sides were represented by legal counsel. At the conclusion of the mediation, the mediator proffered a mediator's proposal to settle the matter on a class-wide basis for $500,000, which the parties accepted. After the mediation, for several months, the parties negotiated the terms of their long-form Settlement Agreement. (Scheppach Decl. ¶ 33.)
Informal discovery was conducted prior to mediation. Superior Healthcare provided Class Counsel with a random sampling of time and payroll records spanning hundreds of pages and covering thousands of shifts worked by numerous class members, as well as detailed class statistics and documentation on Defendant's written policies and practices during the Class Period. Class Counsel had also obtained Plaintiff's own personnel file and employment records.
(Scheppach Decl. ¶ 34.) Over a several-month period leading up to the mediation, the parties exchanged numerous correspondences regarding Plaintiff's claims, the class data, and Defendant's policies and practices. (Ibid.) Class Counsel is experienced in similar litigation. (See Scheppach Decl. ¶¶ 10-11 & 35.) And, there are no objectors. (Id. at ¶36.)
With all four "presumption" requirements satisfied, the Settlement is presumed to be fair.
Final Fairness Determinations
Deductions from the $500,000 Settlement Common Fund will be $166,666.67 for attorneys' fees, $13,292.74 for attorneys' costs, $10,000 enhancement payment to the class representative Andrew Pomele, PAGA payment of $18,750 to the LWDA, and CPT's costs of $13,500.  Valdez Dec. This is consistent with the Court’s order granting preliminary approval. The attorneys’ fees are set forth in the Scheppach declaration ¶¶90-95 and based on the Laffey Matrix.  This also is consistent with the Court’s order granting preliminary approval.  The Scheppach declaration ¶96 also details the costs, which appear facially reasonable. Again, this is consistent with the Court’s order granting preliminary approval.
The remaining Net Common Fund earmarked for payment to class members is estimated at $277,790.59. The average payment to class members is calculated to be $2,083.43, based on the total weeks credited divided by the number of members, yielding an average number of weeks which was then divided by the total to provide a percent, then applied to the Common Fund. The highest gross payment to a member is expected to be $8,202.89. Valdez Dec. These distributions are in accord with the Court’s determination and order on preliminary approval.
Notice to the LWDA
Plaintiff sent notice of the PAGA claims to the California Labor & Workforce Development Agency (“LWDA”), as required, in May and July 2018. Scheppach Dec. ¶¶21-22. It is not clear, however, if Plaintiff ever gave the LWDA notice of the Settlement. This is required, as explained above. Labor Code section 2699(l)(2). The parties accordingly must rectify this issue prior to final determination and approval of the Settlement.
Notice to Class Members and Responses Thereto
According to the declaration of Bryan Valdez, case manager for the claims administrator CPT, CPT received the class list on February 27, 2020 with 104 members, but Defendant discovered 28 had been omitted and added them in a new list given to CPT March 5 with all 132. Valdez Dec.
On March 9, 2020 CPT conducted a national change of address (NCOA) database search to update the mailing list.  Valdez Dec.
CPT sent the Notices via first class mail as required to the last-known addresses on March 11, 2020, giving April 27, 2020 as the deadline to dispute. Notice, Ex. A to Valdez Dec. On May 4, 2020, CPT received one request to be added to the list and after review with the parties it was approved, bringing the total class to 133.  Valdez Dec.
Of the original Notices sent, 17 Notices were returned as undeliverable, leading CPT to conduct a skip trace on 15 using Accurint. This allowed CPT to re-mail 12 of the Notices but 6 Notices have so far been found undeliverable. Valdez Dec. CPT will conduct another skip trace to locate these upon final approval. Valdez Dec. CPT has received no disputes, requests for exclusion, or objections.
The Notices, schedule of events, and service of Notices comply with the Court’s order granting preliminary approval.
            The prevailing party is to prepare an order conforming with the order of the Court, submitting it to the opposing party for review five days prior to submitting it to the Court.
4.         SCV-264558, Atrium Holding Company v. Liberty Mutual Fire Insurance Company
            Plaintiffs’ Motion to Compel Discovery GRANTED except as to the issue of verification, which is now moot, for the reasons explained herein.  The issue of verifications is now moot but will still support sanctions. The Court will award sanctions to Plaintiffs but Plaintiffs must demonstrate the basis for the amount sought.
            The discovery sets are identical for each “Excess Carrier Defendant” at issue and each Defendants’ responses were basically identical for each set. 
The responding party must verify substantive responses. Code of Civil Procedure section 2031.250.   Where a response is unverified, the response is ineffective and is the equivalent of no response at all. See Appleton v Sup .Ct. (1988) 206 Cal.App.3d 632, 636.
            Plaintiffs are correct that the verifications are mandatory and failure to provide them renders the substantive responses ineffective.   Defendants do not dispute this but show that they have now provided verifications. These are, however, inexcusably late. While the verifications render the motion moot on this issue, the inexcusable tardiness supports at least some sanctions award against Defendants.
Further Responses
When a propounding party is dissatisfied with responses to interrogatories or production requests, that party may move to compel further responses. Code of Civil Procedure sections 2030.300, 2031.310.  The moving party must make adequate attempts to meet and confer. Ibid. Generally, once a timely, proper motion to compel further responses has been made, the responding party has the burden to justify objections or incomplete answers. Coy v. Sup. Ct. (1962) 58 Cal.2d 210, 220-221. 
A party moving to compel further responses to a production request, however, must demonstrate “good cause" for seeking the items. Code of Civil Procedure section 2031.310(b)(1). This requires a showing that the items are relevant to the subject matter of the litigation and a showing of specific facts justifying discovery. Glenfed Develop. Corp. v. Sup. Ct. (1997) 53 Cal.App.4th 1113, 1117. Whether there is an alternative source for the information is relevant though not dispositive. Associated Brewers Distrib. Co. v. Sup. Ct. (1967) 65 Cal.2d 583, 588. Once the moving party demonstrates good cause, the responding party must justify its objections. See, Hartbrodt v. Burke (1996) 42 Cal.App.4th 168.
Requests must identify the documents sought by describing a category with “reasonable particularity.” Code of Civil Procedure section 2031.030(c)(1). This description must be particularized from the point of view of the person on whom the demand is made, such as by describing categories which bear some relationship to the manner in which the documents are kept. See, Calcor Space Facility, Inc. v. Sup. Ct. (1997) 53 Cal.App.4th 216, 222.
Special Interrogatories
Plaintiffs seek new responses to special interrogatories 17 and 20. These are contention interrogatories and, respectively, ask 17) Defendants to describe how they met their obligations if they contend that they did so; and 20) identify facts, persons, and documents supporting their affirmative defenses. Defendants objected to 17 by stating that “they fulfilled all obligations” and the request to describe how they contend they did this is overly broad. Defendants objected to 20 by stating that it is not relevant but provided a supplemental response referring to general objections and referring Plaintiffs “to the claims file.”
Plaintiffs are persuasive that these responses are incomplete and evasive. Defendants argue that they need not be required to make a compilation or summary it they can instead refer to the specific document which contains all the information. This is correct, but nothing here indicates how “the clams file” actually responds to the question, what information in it would be responsive, or what specific documents actually contain the information. Simply referring to the claims file cannot possibly, on its face, be adequate to provide facts supporting Defendants’ affirmative defenses even if it satisfies the requirement to specify documents supporting the affirmative defenses or containing the relevant information. Moreover, the interrogatory 20 does not on its face require, or even ask for, the sort of summary or compilation which Defendants discuss.
Form Interrogatories
Plaintiffs seek new responses to form interrogatories 4.1 and 15.1. Item 4.1 asks Defendants to state if there was a policy in effect and asks Defendants to specify the policy information, coverage, insurer’s address, name, etc. Defendants objected that it is vague and ambiguous. This is a groundless objection. For 15.1, seeking facts, witnesses, and documents supporting each denial or defense, Defendants first stated that they “will supplement response” with nothing more and then in their supplemental response again objected that this requires a compilation or summary and directed Plaintiffs to the claims file. This response is invalid for the reasons set forth regarding the special interrogatories.   Notably, the original response also contained no objection to this item and the subsequent, untimely, objection which amounts to the entire response, therefore is waived.  
Production Requests
The request at issue is 11, seeking all claims-handling materials, guidelines, memoranda, and rules. Defendants objected that this is unreasonably cumulative, redundant, etc., as well as vague and burdensome while seeking documents that are irrelevant and within attorney-client privilege, work product, and “any other applicable protection” as well as proprietary information.
These objections are unpersuasive. While it is possible that some documents may fall within attorney-client privilege or work product, or include confidential proprietary information, that is not clear from the face of the requests. To preserve these objections, Defendants must at least provide a privilege log and the validity of the objections can be determined from there.   The other objections are clearly groundless. The information is directly relevant and is not vague while nothing demonstrates that it is cumulative or the like, or overly burdensome. A party, finally, may not simply vaguely assert “any other applicable protection.”   
Plaintiffs seek sanctions and are clearly entitled to these. They seek $5,000 but do not explain the basis for this amount. Under the circumstances, it may be reasonable, but Plaintiffs must provide a basis for it. Only upon a showing supporting the amount sought will the Court determine the amount of sanctions.
            The prevailing party is to prepare an order conforming with the order of the Court, submitting it to the opposing party for review five days prior to submitting it to the Court.
5.         SCV-265258, Lansdown v. Bayview Loan Servicing, LLC
            Plaintiff’s Motion for Preliminary Injunction GRANTED.
The ultimate purpose of a preliminary injunction is to preserve the status quo. Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528. 
A preliminary injunction will issue only if there is no adequate legal remedy. Code of Civil Procedure 526. The party seeking the injunction must show an imminent threat of irreparable injury, often equated with an “inadequate legal remedy.” Code of Civil Procedure section 526(a)(2); Korean Philadelphia Presbyterian Church v. Cal. Presbytery (2000) 77 Cal.App.4th 1069, 1084. 
The requirement that the injury be “imminent” simply means that the party to be enjoined is, or realistically is likely to, engage in the prohibited action. Korean Philadelphia Presbyterian Church, supra. The irreparable injury will exist if the party seeking the injunction will be seriously injured in a way that later cannot be repaired. People ex rel. Gow v. Mitchell Bros., Etc. (1981) 118 Cal.App.3d 863, 870-871.
The party seeking a preliminary injunction must also demonstrate a reasonable probability of success. See Code of Civil Procedure section 526(a)(1); San Francisco Newspaper Printing Co., Inc. v. Sup. Ct. (Miller) (1985) 170 Cal.App.3d 438, 442. Plaintiff must make a prima facie showing that he is entitled to relief under these standards, but need not rise to the requirements for a final determination. Triple A Machine Shop, Inc. v. State of California (1989) 213 Cal.App.3d 131, 138.  Scaringe v. J.C.C. Enterprises, Inc. (1988) 205 Cal.App.3d 1536, at 1543, provides an example of how to determine whether the plaintiff has satisfied this requirement. The plaintiff in Scaringe sought to halt construction that would block his view. The court stated that in order to show a reasonable probability of success, the plaintiff had to demonstrate an enforceable servitude or CCRs.
The Court must conduct a two-prong equitable balancing test, weighing the probability of prevailing on the merits against the determination as to who is likely to suffer greater harm. Robbins v. Sup. Ct. (1985) 38 Cal.3d 199, 206. Shoemaker v. County of Los Angeles (1995) 37 Cal.App.4th 618, 633. This determination involves a mix of the two elements, and the greater the Plaintiff’s showing on one element, the weaker it may be on the other. Butt v. State of Calif. (1992) 4 Cal.4th 668, 678. 
Irreparable Injury
There is a threat of irreparable harm where there is an “inadequate legal remedy” or where the injury cannot be readily repaired or undone. Code of Civil Procedure section 526(a)(2); see, People ex rel. Gow v. Mitchell Brothers’ Santa Ana Theater (1981) 118 Cal.App.3d 863, 870-871. 
Real property is generally considered unique so that damages cannot readily make up for any loss or injury. See Civil Code section 3387. However, this is not necessarily true where the real property is solely for investment, in which case damages can be an adequate remedy, rendering an injunction unnecessary. Jessen v. Keystone Sav. & Loan Ass’n (1983) 142 Cal.App.3d 454, 458.  
Plaintiff clearly meets her burden here.
Likelihood of Success on the Merits
Plaintiff shows that the parties entered into, and all signed, a written “Memorandum of Understanding” expressly to settle the Prior Action in December 2019, Ex. 3 to the complaint. In pertinent part, Plaintiff agreed to dismiss the Prior Action and Bayview agreed to implement the “Modification Agreement” for Plaintiff; the parties agreed that the debt would be capitalized to a modified balance of $631,541.63, of which $500,000 would be interest-bearing at 4.75% amortized at 480 months to a maturity date of 1/1/2046; the deferred balance plus the remaining balance would be due as a balloon payment on maturity; debt over this amount would be forgiven; and payments of principal and interest would be $2,328.79, taxes and insurance to be paid separately. 
She also provides copies of checks paid to Defendant Bayview in the agreed amount since then, and a copy of a modification agreement which Bayview then sent Plaintiff but which Plaintiff claims differs from what they agreed. It shows the same monthly payments of principal and interest but adds an impound/escrow amount of $569.94 a month while it also includes a space for Greenberg to sign, even though he was not a party to the litigation or Settlement. She adds that she paid $19,000 in property taxes and “believes” that this was not credited to her. 
            Although Plaintiff’s position is not extremely strong and it is not clear exactly whether there truly has been a breach of the Settlement or how material it is, the court finds that there is evidence to support this position.
Balancing Test
Both factors support the injunction here, at least somewhat. The likelihood of injury to Defendant from the injunction seems insignificant by comparison to Plaintiff’s injuries without it, and much less irreparable. 
Status Quo
Finally, the injunction would preserve the status quo. 
            The prevailing party is to prepare an order conforming with the order of the Court, submitting it to the opposing party for review five days prior to submitting it to the Court.
6.         SCV-265304, Pedone v. Lowe’s Home Centers, LLC
            Defendant’s Motion to Compel Arbitration and Stay Proceedings has been CONTINUED to Wed., July 22, 2020, 3:00 p.m., pursuant to the stipulation and order filed May 20.
7.         SCV-265383, Ridgeway Distribution LLC v. Piner Partners
            Defendants Piner Partners, California Champ, LLC, and TBKCA, LLC’s Demurrers to the Second Amended Unlawful Detainer Complaint OVERRULED. Defendants shall file an answer to the second amended complaint within 10 days of notice of entry of this order. 
An assignment of a lease transfers the original tenant’s entire interest in the property but a sublease transfers only a portion of that interest and the original tenant or sublessor retains a right of reentry during the unexpired term of the original lease. See, Kendall v. Ernest Pestana, Inc. (1985) 40 Cal.3d 488, 492, fn.2; Cobb v. San Francisco Residential Rent Stabilization & Arbitration Bd. (2002) 98 Cal.App.4th 345, 352; Hartman Ranch Co. v. Associated Oil Co. (1937) 10 Cal.2d 232, 242-243.  
Assignment or a novation transferring all rights and obligations of the original tenant to a new tenant by agreement between the landlord, original tenant, and new tenant requires agreement of all parties. Wells Fargo Bank v. Bank of America NT&SA (1995) 32 Cal.App.4th 424, 432. It leaves the landlord with rights only against the new tenant and extinguishes the original tenant’s obligations. Civil Code sections 1530, 1531; see, Wells Fargo Bank, supra, 32 Cal.App.4th 424, 431-432.
A sublease does not extinguish the rights and obligations of the original tenant but transfers only a portion of that tenant’s rights to the subtenant, leaving the original tenant or sublessor with a right of reentry during that tenant’s lease from the owner. Vallely Investments, L.P. v. BancAmerica Comm’l Corp. (2001) 88 Cal.App.4th 816, 823; Regency Outdoor Advertising, Inc. v. Carolina Lanes, Inc. (1995) 31 Cal.App.4th 1323, 1330. The landlord and new subtenant are not in privity and the subtenant has no direct liability to, or claim against, the landlord. Vallely Investments, supra, 823. The original or master tenant/sublessor thus retains both rights and obligations to the landlord under the master lease. Brosnan v. Kramer (1901) 135 Cal.36, 39-40. At the same time, the subtenant is charged with knowledge of the original lease and is bound by its terms. Fifth & Broadway Partnership v. Kimmy, Inc. (1980) 102 Cal.App.3d 195, 201.  The landlord may terminate the master lease and bring an unlawful detainer action against the sublessee. Syufy Enterprises, L.P. v. City of Oakland (2002) 104 Cal.App.4th 869, 883.
            A plaintiff in an unlawful detainer action must demonstrate a right to possession of the property. Code of Civil Procedure sections 367, 1166(a)(2); see, Friendly Village Comm. Ass’n, Inc. No. IV v. Silva & Hill Const. Co. (1973) 31 Cal.App.3d 220, 224-225. 
            Here, Plaintiff clearly demonstrates a potential interest in the Property as a sublessor. The contract attached to the complaint appears, at least arguably, to create a sublease and not an assignment. There is a possible dispute over the nature of the agreement and its effect but this does not as a matter of law defeat Plaintiff’s claims that the agreement is a sublease. Given that possibility, then Plaintiff would have a right of reentry and would seem to be able to claim, at least potentially, possession of the property as well as recovery of rent based on the alleged breaches. Due to the nature of the dispute, defenses, and uncertainties, treating this as a simple unlawful detainer action is improper but this does not defeat Plaintiff’s basic claims as a matter of law.
            The prevailing party is to prepare an order conforming with the order of the Court, submitting it to the opposing party for review five days prior to submitting it to the Court.
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