Apr 17, 2014

Wednesday, April 16, 2014, 3:00 p.m.
Courtroom 16 -- Judge Elliot Lee Daum
3035 Cleveland Avenue, Suite 200, Santa Rosa

CourtCall is available for all Law & Motion appearances, EXCEPT parties in small claims cases and motions for claims of exemption which are mandatory 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) 521-6725, and all other opposing parties of your intent to appear by 4:00 p.m. today, Tuesday, April 15, 2014.  Parties in small claims cases and motions for claims of exemption are exempt from this requirement.


1. MCV-229417; Smith Dollar v. Bishop
The Court intends to grant the Plaintiff’s request for default and to execute the proposed order.

2. SCV-240790; Berry v. F Korbel & Bros.
Appearance required.

3. SCV-252199; Glazier v. Specialized Bicycle Components, Inc.
DROPPED; per request from attorney for moving party.

4. SCV-253175; Brooktrails Township Community Services District v. City of Willits
Defendant City of Willits’ motion for summary adjudication of the ninth cause of action of its first amended cross-complaint for declaratory relief is granted on the grounds the City of Willits is entitled to declaratory relief decreeing that Brooktrails Township Community Services District is not entitled under paragraph 21 of the Second Amendment to the Parties’ Agreement to elect its own share of capacity in the Willits Wastewater Treatment Plan (“WWTP”) because that provision only applies if the City of Willits is required to, and does, relocate and abandon the WWTP and the undisputable material facts establish as a matter of law that these prerequisites have not occurred.

Summary adjudication of the thirteenth cause of action of Plaintiff Brooktrails Township Community Services District’s first amended cross-complaint for declaratory relief is also granted.

City of Willits’ Objections to Evidence is sustained.

5. SCV-253277; CA Restaurant Mutual Benefit Corporation v. Acropolis Food Service, Inc.
Plaintiff’s motion for summary judgment is denied.

Summary adjudication of Defendant’s affirmative defenses 1-7 is also denied as there exists trial issues of fact that only a jury can decide.

Undisputed Facts Are Deficient
As an initial matter, Defendant contends that Plaintiff’s Material Facts are deficient. The actual phrase Defendant uses to describe Plaintiff’s Material Facts is “woefully incomplete.” For instance, Plaintiff claims the material fact that “Acropolis and CRMBC … entered into the Indemnity Agreement …” (Fact 1). This fact is undisputed – both sides agree that Acropolis and Plaintiff entered into an Agreement. However, the material fact at issue is the content of the Indemnity Agreement, not its mere existence. Plaintiff never introduces evidence that the Indemnity Agreement requires Defendant to pay the Special Assessment, an omission that is fatal to their elements of duty and breach.

Likewise, Plaintiff’s UMF #6 is a legal conclusion, not a material fact. Whether Plaintiff “performed its obligations under the Indemnity Agreement” is a question for the jury to determine based on evidence of Plaintiff’s actual conduct, not a material fact Plaintiff may unilaterally assert. Plaintiff does not allege any underlying facts to the assertion that it “performed its obligations under the Indemnity Agreement.”

Defendant disputes this “fact” by correctly asserting that this Court has already determined that whether Plaintiff performed under the Indemnity Agreement is a disputed question of fact. (See Memorandum of Decision Denying Acropolis’ Motion for Summary Judgment, p. 11.) Defendant further disputes fact #6 on the grounds that Plaintiff underfunded the Group by $88 million for Plan Years 2005-2011 through incorrectly calculating liability risk and collecting smaller assessments than necessary to cover Group needs; improperly delegated responsibility for risk management and calculation, including recommending member assessment levels, to CHSI; failed to adequately supervise or audit CHSI’s performance; failed to replace CHSI until 2012 or 2013, when Plaintiff knew or should have known of CHSI’s negligence in performing those delegated responsibilities by 2011; failed to investigate its own trustees for breaches of fiduciary duty; and admitted CHSI’s failure to perform those duties when it filed for a $120 million suit against CHSI for participating in the incorrect calculation of Plaintiff’s actuarial risk. (See UMF; Arnold Dec., ¶ 3 Exs. 5 and 6.)

Given that the breach of contract action consists of the elements of duty, performance, breach and damages, Plaintiff’s “material facts” are inadequate. No material fact Plaintiff offers alleges that Defendant had a duty to pay the Special Assessment or Supplemental Assessment. No material fact Plaintiff offers alleges that Defendant’s failure to pay either constitutes a breach. No material fact Plaintiff offers provides a basis for Plaintiff to claim performance. No material fact that Plaintiff offers ties the amount of the Special Assessment to the language of the Indemnity Agreement.

6. SCV-253926; Bigham v. City of Santa Rosa
Defendant City of Santa Rosa’s motion to strike excerpts of the first amended complaint is denied. Plaintiff alleges several factors which taken together may demonstrate a dangerous condition independent of the alleged failure to install a traffic signal or other warning.

Government Code section 830.4 makes it clear that a condition is not dangerous simply because of the lack of a traffic signal or marking. It states, in full, “[a] condition is not a dangerous condition within the meaning of this chapter merely because of the failure to provide regulatory traffic control signals, stop signs, yield right-of-way signs, or speed restriction signs, as described by the Vehicle Code, or distinctive roadway markings as described in Section 21460 of the Vehicle Code.” It quite clearly does not state that an entity cannot be liable for the failure to provide such signals if there was a dangerous condition due to other factors. The statute’s language, stating that there is no dangerous condition “merely” because there is no signal seems quite clear that what it means is that the failure to install such a signal does not alone create such a condition. In fact, case law makes clear that this is the case. The court in Mixon v. State (2010) 207 Cal.App.4th 124, 135, noted that case law has established that ‘a public entity may be liable where a dangerous condition “exists for reasons other than or in addition to the ‘mere[ ]’ failure to provide such controls or markings,”’ quoting Washington v. City and County of San Francisco (1990) 219 Cal.App.3d 1531, 1536. In Gardner v. City of San Jose (1967) 248 Cal.App.2d 798, 803, explained that “[a]lthough section 830.4 of the Government Code provides that a condition of public property is not a dangerous one Merely [sic] because of the failure to provide regulatory traffic control signals, the absence of such signals for the protection of pedestrians must be taken into consideration, together with other factors.”

The Mixon court, supra, at 135, also noted that “[s]ight restrictions … may combine with the absence of regulatory traffic devices to create a dangerous condition ….”

Section 830.8 also states,

[n]othing in this section exonerates a public entity or public employee from liability for injury proximately caused by such failure if a signal, sign, marking or device (other than one described in Section 830.4) was necessary to warn of a dangerous condition which endangered the safe movement of traffic and which would not be reasonably apparent to, and would not have been anticipated by, a person exercising due care.

7. SCV-254263; Moroni v. Conroy
DROPPED; first amended complaint filed 4/11/14;

8. SCV-254360; Allen v. Hotel La Rose, Inc.
This is on calendar for Plaintiff’s motion to deem requests for admission admitted, compel responses to special and form interrogatories, compel response to requests for production of documents, and monetary sanctions.

On January 6, 2014 the Plaintiff served Requests for Admission, Special and Form Interrogatories and Requests for the Production of Documents on Defendant Hotel La Rose. The Defendant failed to respond. On February 28, 2014, Plaintiff filed the instant motion. The Defendant opposes the motion, and submits evidence in the form of a declaration that responses to the discovery have been served. (See Dec. Bishop ¶¶ 2-5.)

Given that the Defendant has provided evidence that it has responded to the discovery, the motion is essentially moot. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare (2007) 148 Cal.App.4th 390, 409.) The Plaintiff’s reply suggests that the lack of proper verification is the equivalent of “no response at all”. The Court disagrees and finds these answers to be properly verified and Defendant is bound by them.

Accordingly, the motion is denied. The court will nonetheless impose sanctions in the amount of $950 against the Defendant for failure to timely answer occasioning the instant motion. The Plaintiff shall draft an order consistent with this ruling.


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