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LAW AND MOTION CALENDAR
Wednesday, April 23, 2014, 3:00 p.m.
Courtroom 16 -- Judge Elliot Lee Daum
3035 Cleveland Avenue, Suite 200, Santa Rosa
1. MSC-183065; Tremblay v. Buckley
2. SCV-253131; Empey v. McMillan
The demurrers to Plaintiff’s causes of action for rescission and intentional infliction of emotional distress are sustained, without leave to amend.
Defendant’s Motion to Strike paragraphs 21 through 23 and 60 through 61 contain allegations of confidential communications under Evidence Code §1119. Accordingly, they are improper matter and must therefore be stricken.
3. SCV-253491; Tate v. Hunt
The motion to compel Plaintiff Jean Tate to appear at deposition is granted.
The Court grants Defendant sanctions and attorney’s fees in the amount $240.00 plus the filing fee of $40.00 for a total of $280.00.
4. SCV-253897; Airport Business Center v. City of Santa Rosa
The first cause of action is sustained without leave to amend, because it asks for a writ of mandate by the court “directing Respondents and Defendants (a) to immediately cease all collecting UUT in excess of the maximum amount permissible under the SRMC, and commanding Respondents and Defendants to direct their agents and utility providers to conform to such restrictions, and (b) to provide a full and timely public accounting for all such excessive UUT collections for the years after 2000.” (First Amended Complaint, ¶ 39.) However, a writ of mandate seeking to conform Defendants conduct to the SRMC could not order Defendant to cease collecting UUT in excess of the maximum amount, because Defendant does not collect the UUT. In addition, this court cannot order Defendant, under a writ of mandate based on the SRMC, to provide a public accounting for all excessive UUT collections since 2000, because the SRMC does not have such a provision establishing this as a ministerial duty. The second cause of action is sustained with leave to amend because Plaintiff is not allowed to pursue a tax refund by a writ of mandate, where other legal remedies are available. The demurrers to the third and fourth causes of action are also sustained on the grounds that Plaintiff has pled insufficient facts establishing the need for any equitable or injunctive relief or legal obligation of the City to act in a manner requested by Plaintiffs.
The Plaintiff has legal and administrative remedies to avoid collection of taxes. They can prepay the tax to avoid any collection by public utility providers. (SR Municipal Code §32-32.121) or timely file for a refund (SR Municipal Code §3-32.130).
The demurrer to the fifth cause of action is sustained with leave to amend because Plaintiff has not shown that it can assert a claim for money had and received against Defendant based on the instant facts.
City requests that the court take judicial notice of the following:
Item No. 1: Claim of Airport Business Center and Blue Fox, attached as Exhibit A to the Declaration of Caroline L. Fowler;
Item No. 2: Rejection of Claim by City of Santa Rosa dated July 2, 2012, attached as Exhibit B to the Declaration of Caroline L. Fowler;
Item No. 3: Santa Rosa Municipal Code Chapter 3-32 Utility Users Tax, attached as Exhibit C to the Declaration of Caroline L. Fowler.
The Request for Judicial Notice is granted for requests (2) and (3), but denied as to request (1).
5. SCV-254379; Gavriloff v. Hanley
The Defendant’s demurrers to the entire First Amended Complaint and Plaintiff’s first cause of action for malicious prosecution, second cause of action for false arrest and imprisonment, and third cause of action for intentional infliction of emotional distress (IIED) is sustained with leave to amend on the ground that the First Amended Complaint fails to state those causes of action. (CCP §430.10(e).)
Defendant’s Motion to Strike Plaintiff’s prayer for attorney’s fees, costs and bail bonds is granted, without prejudice.
Plaintiff provides no facts that support the conclusion that defendants acted without probable cause. He does not explain the events that transpired culminating in the citizen’s arrest. Further, the outcome of his arrest not only does not negate probable cause, likewise, the terminations do not prove his innocence. The fact that three charges were dismissed for unknown reasons is not evidence of innocence. Further, one charge was not dismissed at all, but was sent to diversion. Based on the outcome of the arrest and the charges, Plaintiff cannot allege malicious prosecution. And because his claims of false arrest and imprisonment and IIED stem from the claim of malicious prosecution, they also fail.
False Arrest and Imprisonment
False imprisonment or arrest involves the non-consensual, intentional confinement of a person, without privilege, for an appreciable length of time which causes Plaintiff to suffer harm. (Molko v. Holy Spirit Ass’n. (1988) 46 Cal.3d 1092, 1132.)
Plaintiff has alleged that Defendants initiated citizen’s arrest fraudulently without probable cause and caused him unreasonable duress as a result of their actions. Plaintiff fails to establish that the arrest by the defendants was not lawful, as such; Plaintiff cannot state a claim for false imprisonment or arrest. The demurrer is sustained with leave to amend.
Intentional Infliction of Emotional Distress
The allegations for intentional infliction of emotional distress (IIED) must show 1) extreme and outrageous conduct; 2) the intent to cause, or reckless disregard for causing, emotional distress; 3) severe or extreme emotional distress; and 4) actual or proximate cause. Davidson v. City of
In this case, no facts are alleged that Defendants acted with extreme and outrageous malice, with the intention of causing, or with reckless disregard of the probability of causing emotional distress. Again, the facts as stated do not establish that Defendants acted without probable cause and thus, outrageously.
The demurrer is sustained with leave to amend.
Motion to Strike-Legal Standard
CCP section 435, subdivision (b) (1) provides that “any party within the time allowed to respond to a pleading may serve and file a motion to strike the whole or any part thereof…”
Section 436 provides:
The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems improper strike out any irrelevant, false, or improper matter inserted in any pleading; strike out all or any part of a pleading not drawn or filed in conformity with the laws of the State, a court rule or an order of the court.
In his prayer for relief, Plaintiff requests attorney’s fees and costs and bail bonds in conjunction with each cause of action, excluding Plaintiff’s claim for IIED.
Attorneys’ fees are only recoverable when authorized by contract, statute or law. (CCP §1021; Reid v. Valley Restaurants, Inc. (1957) 48 Cal.2d 606, 610. In the absence of allegations demonstrating that the plaintiff is entitled to attorney’s fees, a request for same is improper.
Plaintiff’s request for attorney’s fees, bail bonds and costs are stricken without prejudice.
6. SCV-254383; State Farm v. Teal
The Motion to Set Aside Default is granted. Defendant Teal shall file her formal answer by May 9, 2014.
7. SPR-85965; Matter of the Ernest Thompson Trust
The Motion to Withdraw as Attorney of Record is granted.
The Motion for Attorney’s Fees and Costs is granted in the amount of $5,241.00.