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LAW & MOTION CALENDAR
WEDNESDAY, DECEMBER 7, 2016, 3:00 p.m.
Courtroom 16 – Hon. Nancy Case Shaffer
3035 Cleveland Avenue, Santa Rosa
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 will need to contact the Judicial Assistant by telephone at (707) 521-6729 by 4:00 p.m. today, Tuesday, December 6, 2016. Any party requesting an appearance must notify all other opposing parties of their intent to appear. Parties in small claims cases and motions for claims of exemption are exempt from this requirement.
CourtCall is available for all Law and Motion appearances, EXCEPT parties in small claims cases and motions for claims of exemption which are mandatory appearances. CourtCall can be reached directly at (888) 882-6878.
1. MCV-237834, Inman v. Estrada
Appearances are required on Plaintiff’s post-judgment motion for contractual attorney’s fees as the prevailing party, pursuant to Code of Civil Procedure section 1033.5.
Ms. Sherrill, a Legal Aid attorney, has not demonstrated her standing to appear in this matter in order to file an Opposition brief as the “Attorney for Defendant.” Ms. Sherrill has appeared with defendant at proceedings and assisted in preparing pleadings signed and filed by defendant, defendant remains self-represented and no substitution of attorney has ever been filed. There are no documents in the file authorizing Ms. Sherrill to appear as counsel of record for Defendant. It is unclear whether the defendant has any knowledge that an Opposition was filed or whether he endorses it.
2. SCV-2587889, Beyer v. Boyle & Stoll
Per request of Attorney Heather-Ann Thompson Young and agreement of all parties, this motion to withdraw is continued to Wednesday, January 11, 2017 at 3:00 p.m. in Dept. 16.
3. SCV-259751, Two Rock Valley Dairy Producers v. Triple T
Plaintiff Two Rock Valley Dairy Producer’s Application for Right to Attach Order/Writ of Attachment against Defendants Triple T Dairy Commodities, Inc. and David Peacock is granted. On November 17, 2016, this Court granted plaintiff’s Ex Parte request for a Temporary Protective Order pursuant to Code of Civil Procedure section 486.010. A hearing on the Writ of Attachment order was set for December 7, 2016. Two additional declarations have been submitted by plaintiff, attesting to the formation of the written agreement upon which they rely. Defendant has not filed any additional papers.
The Court finds the claim is one on which an attachment may be issued (i.e., the claim is for money based on an express or implied contract; the claim is of a fixed or readily ascertainable amount of not less than $500; the claim is a commercial claim; and the claim is not secured by real property). The main issue in dispute is whether the parties entered into a written supply/purchase contract, as asserted by plaintiff, or whether the parties instead entered into a relationship whereby defendants simply acted as the “putative manager” for plaintiff to assist in selling its milk to third parties. Based on the evidence before the Court, plaintiff has established the probable existence and validity of a written supply/purchase contract, or at minimum, that an oral or implied supply/purchase agreement existed on the terms set forth in the written contract. Plaintiff has demonstrated that it is more likely than not to prevail on its contract claim and that the property it seeks to attach may be attached. The Court further finds that the attachment is not sought for any purpose other than to secure recovery on the claim. The Court notes that all property within California held by a corporation, partnership or unincorporated association is subject to attachment if there is a statutory method of levy for the property. (CCP Sec.487.010(a), (b).)
A right to attach order/writ of attachment shall issue as follows: Plaintiff may attach 110,000 lbs. of powdered milk located at 770 Garner Road, Modesto CA; the proceeds of the sale of powdered milk in the ordinary course of business; and/or Defendant’s bank account, Bank of America, Account No. 002785540950, collectively up to $307,000.
The statutory undertaking of $10,000.00 is required; the application states that the undertaking has already been deposited.
Plaintiff shall submit written orders consistent with this ruling.