Jul 30, 2014

Wednesday, July 30, 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) 521-6547, and all other opposing parties of your intent to appear by 4:00 p.m. today, Tuesday, July 29, 2014.  Parties in small claims cases and motions for claims of exemption are exempt from this requirement.


1. MCV-180443; Unifund v. Peterson

Appearance required.



2. MCV-227395; Cavalry SPV I v. Prokopowich

Defendant’s Motion for Discovery Sanctions is granted.  Plaintiff’s dismissal of the case against Defendant renders the portion of the motion related to compelling discovery responses moot but does not have the same effect on the discovery sanctions portion of the motion.  Plaintiff’s inadequate discovery responses regarding the loan assignment and refusal to remedy such responses after urging from defense counsel warrant an award of $1,890 for the costs associated with the drafting of the motion ($1,800) and the motion’s filing fee ($90).



3. MSC-183950; Parmlee v. Fairfield

Appearance required.



4. SCV-253897; Airport Business Center v. City of Santa Rosa

The demurrer to the first cause of action is sustained without leave to amend, because it asks for a writ of mandate by the court “directing the Defendants and Respondents to perform their mandatory duties and to issue a full refund to Plaintiffs of the excess UUT payments that they made during the time periods set forth herein, or such other periods of time as the Court deems appropriate, with interest” (Second Amended Compalint ¶48.)  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 for money had and received 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.  The demurrer to the third cause of action is also sustained without leave to amend on the grounds that Plaintiff has pled insufficient facts establishing the need for declaratory relief.


The Plaintiff has legal and administrative remedies to avoid over 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).



5. SCV-254814; Najambadi v. Bank of America

The demurrer to the First Amended Complaint is overruled as to Plaintiff’s first and second cause of action for intentional and negligent misrepresentation.


The demurrers to the third through tenth causes of action are sustained with leave to amend.


Though Defendant states the demurrer is for uncertainty, no grounds for a special demurrer are pled and this is therefor a General Demurrer.


Defendant’s Requests for Judicial Notice is granted.


The Defendants are to draft an order consistent with this ruling.



6. SCV-255492; EJLJ Mathews v. Boucher

The Court grants Defendant’s Motion to Compel Arbitration and to stay proceeds pending arbitration.  Upon investing in Adam Capital Clean Energy Asset Finance LLC, Plaintiff agreed to submit to arbitration of any dispute under the agreement pursuant to the signed Subscription Agreement.  The court holds that there was a binding agreement and under both the Federal Arbitration Act and California Code of Civil Procedure section 1281.2 the arbitration agreement must be enforced.  The current proceedings are stayed pending the resolution of arbitration.  The court hereby sets a Case Management Conference for January 6, 2015 at 3:00 p.m. in Department #16.


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