Jul 19, 2019

TENTATIVE RULINGS

LAW & MOTION CALENDAR

Friday, July 19, 2019, 9:00 a.m.

Courtroom 16 – Hon. Patrick M. Broderick

3035 Cleveland Avenue, Suite 200, Santa Rosa

 

 

CourtCall is available for all Law & Motion appearances, EXCEPT parties in motions for claims of exemption which are MANDATORY PERSONAL 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 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, July 18, 2019.  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-247090, Weiss v. Meehan

 

            Defendant’s Motion for Reconsideration is DENIED in full.  The Court denies the request to reconsider the underlying order, which was to deny Plaintiffs’ motion without prejudice due to technical and procedural errors.  The Defendant presents no new facts, law, or circumstances to warrant reconsideration.  Defendant points to the fact that the Court did not impose sanctions on Plaintiffs even though it could have.  This is not “new” because the tentative ruling already made clear that the Court was not going to impose them and yet Defendant failed to appear to challenge the ruling as to that issue, which she could have done.  Defendant fails to explain why she did not, or could not, have done so.  In any case, even if the Court were to reconsider the ruling, it would not alter the ruling in any way and finds that the ruling was correct.  The Court had discretion not to impose such sanctions and the Court finds that imposing sanctions at that point would have been premature since the motion was denied without prejudice for technical and procedural reasons, not substantive ones.

 

            Plaintiffs’/Cross-Defendants’ Motion Compel and For Sanctions GRANTED with sanctions of $660 awarded to the moving parties.  Plaintiffs correctly argue that the objections are groundless and the form interrogatory responses are otherwise evasive.  Sanctions are awarded to Plaintiffs but at an amount which the Court finds reasonable for this motion.  The sanctions requested are significantly higher than those requested for the original, failed motion regarding this discovery, which this Court denied without prejudice due to procedural errors in the moving papers.  The Court found, and still finds that those original sanctions were clearly unreasonable for the nature and complexity of the motion and far out of line with the typical realm of sanctions requested and granted for such motions.  The additional amount sought here is evidently due to the moving parties’ own errors in the original motion and the Court will not compensate them for additional work which they themselves unreasonably necessitated. 

 

            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.

 

 

2.         SCV-258369, Ranillo v. Ensign Sonoma LLC

 

            Motion for Final Approval of Class Certification and  Class-Action Settlement GRANTED.

 

            Motion for Attorneys’ Fees, Costs, Enhancement Award GRANTED.

 

            The Court finds the amounts to be fair, reasonable, appropriate, and consistent with the applicable law and circumstances.  The Court finds that notice was sent to the class as this Court required at the preliminary hearing, only two have opted out and nobody has objected.

 

            The parties entered into a settlement with a “Gross Settlement Fund” of $135,000 to pay $45,000 in attorneys’ fees, a maximum of $6,000 in costs, a $5,000 award to the named Plaintiff as class representative, payment to the California Labor and Workforce Development Agency of $1,875 as civil penalties, administration costs of $8,000, and the remainder, $69,125, as the net settlement fund to be paid to the class members with shares based on the number of weeks that each member work.  There are an estimated 175 class members, so that the average payment to each member, if divided equally, would be about $395.  Each member need not submit a claim to obtain or prove right to payment but instead they will each receive the payment automatically with the amount for each based on the number of weeks worked.  Class members no longer working at Defendant will receive an additional 2 weeks’ worth of payment.

 

            The Court must determine that the settlement is fair, adequate, and reasonable after a hearing often referred to as a “fairness hearing.”  California Rule 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; Federal Rule of Civil Procedure, 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.” 

 

            At the moment, there appear to be no objectors.  The parties spent over two years in litigation and discovery between Plaintiff filing this case in February 2016 and entering into the settlement in November 2018, including thousands of pages of document discovery, employment data for the entire putative class, policies, payroll, etc.  See Harris Dec., ¶6.  The settlement was reached through arms-length negotiation via mediation with a retired judge as mediator with negotiations lasting over two years, starting with an all day long mediation in March 2016 which did not result in a settlement but started the progress.  With the mediator’s involvement over the next two years the parties finally entered into the final settlement in November 2018.  Harris Dec., ¶¶6-7.  Plaintiff’s attorney sets forth significant experience and, as his work has shown in this case, has demonstrated skill and diligence in handling this matter.  These factors not only support a finding of fairness but, in accord with Reed, demonstrate that the settlement is at the moment presumptively fair.

 

            After the original hearing on the final approval, based upon new information regarding the need to relocate, and re-serve the notices on, 20 of the class members, resulting in a later response deadline, this Court continued the matter to allow time for the re-served members to file a response, objection, or opt-out statement.  That new deadline was extended to July 3, 2019 for 3 of the members.  That deadline has since passed 16 days prior to the hearing and there has been no new objection or request to opt out.  As a result, although it has proven impossible to locate 3 of the members, all others have been served with notice and received the required time in which to respond, object, or opt out.  Only 2 members have opted out and no member has served an objection.

 

            Plaintiff’s counsel 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-262924, Post Construction Services, L.P. v. First Regional Bank

 

            Motion to Set Aside Default GRANTED.

 

            The proof of service for the summons and complaint was filed March 14, 2019.  It states that Plaintiff served Denmark Street, LLC on March 11, 2019 by personal service at “1570 The Alameda Ste 200 200 San Jose, CA 95126,” specifically on Michael Crosby (“Michael”), Attorney, as authorized agent.

 

            Denmark shows that Michael was not an authorized or registered agent for service of process and that he immediately informed Plaintiff of this fact; Denmark dissolved several months before service on December 17, 2018; Denmark’s registered agent for service was a Matthew A. Crosby (“Matthew”); Plaintiff never served Matthew and never attempted to serve Denmark except by the service on Michael.  Marvin Maas Dec.

 

            Denmark also filed this motion less than two months after Plaintiff entered the default and shows that it acted promptly. 

 

            Denmark Street, LLC shall file a responsive pleading within 20 days after service of the Court order setting aside default.

 

            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-263218, Gibson v. Nationstar Mortgage, LLC

 

            Motion for Judgment on the Pleadings Granted in part, Denied in part.  The motion is GRANTED as to the first cause of action for constructive fraud and the third cause of action for statutory violations.  The motion is DENIED as to the second cause of action for promissory estoppel and the fifth cause of action for negligent misrepresentation.

 

            With respect to the first cause of action, which this Court found defective on the prior motion for judgment on the pleadings, Plaintiff has failed to cure the defects which this Court noted.  The only changes Plaintiff made to this cause of action are at ¶¶`16-18 and consist of minimal additional, and largely conclusory, allegations of a special relationship; use of specific terminology such as “the Biakanja factors”; and further, though largely repetitive, allegations of delay and Defendant’s use of inaccurate information violating the duty of care which essentially repeat allegations already in the complaint.  Plaintiff has added nothing regarding detrimental reliance or addressing the specificity requirement for pleading actual fraud.  The Court originally noted that Plaintiff failed to demonstrate the requisite special fiduciary relationship to support constructive fraud, failed to address the specificity requirement for actual fraud, and failed to demonstrate any clear detrimental reliance.  Plaintiff has not made any material changes to alter the sufficiency of the pleadings on these points.

 

            The second cause of action is, though perhaps slim and tenuous, adequate to state a potential claim based on promissory estoppel.  Plaintiff has clearly shown some form of promise and seems to set forth a clear promise to consider a modification application using the correct information which Plaintiff provided; Plaintiff has shown to his detriment and resulting possible damage because he did not pursue alternative methods of resolving his foreclosure situation. 

 

            As before, the allegations for the third cause of action simply do not allege a violation of  section 2923.5.  The allegations still clearly indicate that Defendant and Plaintiff have been in contact—Plaintiff alleges however that this contact has yet “to achieve a foreclosure alternative.”  The point of section 2923.5 is to get the parties in contact prior to an notice of default being filed.  While Plaintiff does allege some specifics regarding the parties communications (see Complaint, ¶ 28), it is unclear how these allegations support a violation of Civil Code section 2923.5.

 

            The Court is now able to read the fifth cause of action as simply a cause of action for negligent misrepresentation and it is sufficient as such.  Unlike actual, intentional, fraud, negligent misrepresentation is merely a form of negligence and lacks a particularity requirement needed for intentional fraud.  This cause of action is,  potentially, may add nothing beyond that already pleaded in the fourth cause of action negligence but the Court finds that it does set forth a different specific alleged wrongdoing.  The Court stresses that this cause of action survives solely as one for negligent misrepresentation and notes that it has, as explained above, found that the complaint still is insufficient to state a cause of action for intentional misrepresentation or fraud. 

 

            Finally, the Court notes that the motion appears to seek judgment as to the entire first amended complaint but this is not possible.  This Court denied the original motion for judgment on the pleadings as to the fourth cause of action for negligence and the sixth cause of action for violation of Business & Professions Code sections 17200, et seq., finding those sufficient.  Defendant cannot again argue that these are defective and even if it did, the Court would again find them sufficient since they have not changed.  Moreover, Defendant properly does not even address these at any point in the motion.  The result is that even if the Court were to grant the motion in full, these two causes of action survive preventing any entry of judgment at this point. 

 

            Defendant 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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