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LAW & MOTION CALENDAR
Wednesday, May 13, 2015, 3:00 p.m.
Courtroom 16 - Hon. 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 Judge Nadler’s Judicial Assistant by telephone at (707) 521-6547, and all other opposing parties of your intent to appear by 4:00 p.m. today, Tuesday, May 12, 2015. Parties in small claims cases and motions for claims of exemption are exempt from this requirement.
1. MCV-221210; Creditors Trade Association v. Syed
2. MCV-229045; Rohnert Park Homeowners v. Eterovich
CONTINUED to 6/10/15, 3:00 p.m., pursuant to stipulation and order filed 5/7/15.
3. MCV-232762; Midland v. Sangster
Plaintiff’s Motion to Set Aside Default and Vacate the Judgment previously entered on December 1, 2014 against Defendant Dominic Sangster is granted.
Plaintiff declares that it entered into a Stipulation with Defendant Dominic Sangster on November 24, 2014 and the judgment was sent to court in error. The court orders that this matter be dismissed pursuant to CCP Section 664.6.
4. MSC-183638; Green v. DI Loreto
5. SCV-246408; Dunkelis v. Arnoff
6. SCV-251555; Ellie v. JP Morgan Chase Bank
BHN Investments, LLC and OPK Ranch, LLC’s motion to vacate judgment and enter different judgment pursuant to CCP Section 663 is granted.
BHN and OPK, who were not named in the action, have an immediate, pecuniary, and substantial interest in the judgment. Their easement, which crosses Plaintiff’s property, is currently being improved and is used for access to their property. If Plaintiff’s judgment extinguished moving parties’ easement, as the Plaintiff contends, moving parties rights are injuriously affected by the judgment.
Access to the Plaintiff, OPK and BHN properties is from Saint Helena Road. (See Exhibit “A” to BHN’s Reply.) When Plaintiff’s lis pendens was prepared and recorded, Plaintiff identified his own property (APN 028-270-005) and property owned by JP Morgan Chase and subsequently purchased by Johnson (APN 028-270-008) in that lis pendens. No other parcels, and significantly not the parcel then owned by Johnson and subsequently owned by OPK and BHN, were included in the lis pendens. The lis pendens that was filed and recorded does not contain the names of OPK and BHN’s predecessor owner and does not contain a description of the OPK and BHN property.
As a result, the judgment is not binding on OPK and BHN. The recorded lis pendens must contain the names of the parties to the action and must contain a description of the property affected by the action. CCP Section 405.20. Because the lis pendens did not contain the name of OPK and BHN’s predecessor owner and did not contain a description of OPK and BHN’s property, OPK and BHN’s property is not affected by the action. Plaintiff instead appears to claim OPK and BHN fall within the group of “unknown persons”; this is contrary to due process. Allowing such a result would completely frustrate the purpose of recording a lis pendens.
Plaintiff’s Request for Judicial Notice is granted.
7. SCV-255120; Beals v. Williamson
§ 706.109 Earnings withholding order; issuance against spouse of judgment debtor. An earnings withholding order may not be issued against the earnings of the spouse of the judgment debtor except by court order upon noticed motion.
The motion is granted.
8. SCV-256003; Howshar v. Bank of America
Plaintiffs’ Complaint contains claims that lack both factual and legal support. To the extent Plaintiffs would ever have been able to allege a cause of action against Defendants, their time to do so has passed, and now that their causes of action are time-barred, no amendment can cure the deficiency.
Substantively, all six of Plaintiffs’ causes of action fail to state facts sufficient to constitute a cause of action.
The Demurrer to each of the six causes of action contained in the Complaint is sustained, without leave to amend. This case will be dismissed.
9. SCV-256501; Hormone v. Allred
Motion to be Relieved as Counsel is granted.