Sep 16, 2019

TENTATIVE RULINGS                               AMENDED TENTATIVE RULING FOR SCV-264948

LAW & MOTION CALENDAR

Friday, September 13, 2019, 9:00 a.m.

Courtroom 16 – Hon. Patrick M. Broderick

3035 Cleveland Avenue, Suite 200, Santa Rosa

 

 

CourtCall is available for all Law & Motion appearances, EXCEPT parties in motions for claims of exemption which are MANDATORY PERSONAL 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) 521-6729, and all other opposing parties of your intent to appear by 4:00 p.m. today, Thursday, September 5, 2019.  Parties in motions for claims of exemption are exempt from this requirement.

 

PLEASE NOTE:  The Court WILL provide a court reporter for this calendar.  If there are any concerns, please contact the Court at the number provided above.

 


 

1.         SCV-256339, People of the State of California v. Santa Rosa Grand Petroleum, Inc.

 

            Motion to Enforce Final Judgment and Permanent Injunction and Assess Suspended Penalty DENIED.

 

            This is the second such motion which Plaintiff has brought.  Originally, Plaintiff brought a motion to enforce and assess penalties based on the claims that Defendants had failed to conduct testing, required by the stipulated judgment since October 2017 and had failed to give timely notice of a change of ownership.  The Court denied that motion after the August 2018 hearing because the evidence clearly demonstrated that the Defendants had transferred ownership in 2016, so could not be liable for conduct occurring after that date, and because they had in fact given notice of the change within the time required.

 

            This time, Plaintiff argues that Defendants failed to submit the required testing reports for the testing required by the stipulation in 2014 and 2015, and failed to conduct testing on the 101 N. McDowell Boulevard property until December 30, 2015 even though it was due in 2013. 

 

            However, the Court cannot find a violation of the stipulated judgment entered into on November 19, 2015, based on conduct and a dispute which preceded the judgment or, in fact, the lawsuit itself, and which the judgment was intended to resolve.  In part, by referring to Defendants’ conduct in 2013 and 2014, Plaintiff asks the Court to do just that.  The testing on the 101 N. McDowell station was completed by December 30, 2015, as Plaintiff itself admits.  This was within just over one month after the stipulated judgment which requires the testing and nothing shows that Defendants were required to conduct it sooner, pursuant to the judgment.  The fact that Defendants may have been required to conduct the testing earlier, before the judgment or lawsuit has no bearing on the determination as to whether the timing violated the judgment. 

 

            As for the failure to submit required reports on time there is conflicting evidence.  Plaintiff asserts that Defendants failed to submit the reports within 30 days of the testing as required in 2014 through 2016.  However, Defendants provide evidence from the firm hired to do the testing showing that the firm not only had done the testing, which Plaintiff now admits, but that it had prepared the reports at the time, its practice and standing requirement was to submit the forms once completed, Defendants had paid the firm promptly and the firm never withheld the reports for non-payment or other reasons, and that neither Defendants nor the testing firm had ever received prior notice from the Petaluma Fire Department that they had failed to submit the reports.  Salkhi Dec.; Chand Dec.  In light of this conflicting evidence, and the fact that Plaintiff failed to raise this issue or bring this motion based on the alleged failure until now, several years after it supposedly took place, the Court finds Plaintiff’s motion unpersuasive. 

 

            Defendants’ objections are overruled.

 

            Should oral argument be timely requested, Plaintiff’s request for live testimony from Aneil Chand of Pinnacle Fuel Compliance Services, Inc. will be permitted, not to exceed one hour.

 

            The prevailing party is to prepare an order conforming with the order of the Court, submitting it to the opposing party for review five days prior to submitting it to the Court.

 

 

2.         SCV-262927, Bhayroo v. Morgan

 

            DROPPED from calendar at the request of counsel for moving party.

 

 

3.         SCV-262966, Peterson v. Burton

 

            Motion to Compel Plaintiff’s Responses to Form Interrogatories (Set One), Specially Prepared Interrogatories (Set One), and Demand for Identification and Inspection of Documents (Set One); Request for Sanctions GRANTED in full, with sanctions of $326 awarded to the moving parties.  The sanctions amount reflects the time and expenses so far incurred. 

 

            The Court will enter the order on the proposed order which moving parties have filed but with the sanctions amount modified to reflect the amount ordered.

 

 

4.         SCV-263231, Schoepp v. Vollert

 

            DROPPED from calendar at the request of counsel for moving parties.

 

 

5.         SCV-263994, Warner v. Whitesgate Apartments, L.P.

 

            DROPPED from calendar at the request of counsel for moving party.

 

 

6.         SCV-264046, Johnson v. JPMorgan Chase Bank

           

            Order to Show Cause and Temporary Restraining Order CONTINUED to Fri., Oct. 18, 2019, at 3:00 p.m. in Courtroom 16, because there is no proof of service, and to allow Plaintiffs to file proper proof of service and demonstrating sufficient notice to Defendants.  At the prior hearing on August 2, 2019, this Court continued the motion due to lack of proof of service and no party appeared.  The Temporary Restraining Order/Order to Show Cause (“TRO/OSC”) which this Court issued requires that Plaintiffs demonstrate personal service on Defendants as of 4:30 p.m. on July 16, 2019.  Plaintiffs have not yet filed any proof of service.  The Court finds it appropriate to give Plaintiffs one more chance but may not do so again if Plaintiffs again fail to cure the defect. 

 

            The Temporary Restraining Order issued July 15, 2019, shall expire on October 18, 2019, at 11:59 p.m. 

 

 

7.         SCV-264948, In Re F.T.L.18, LLC (AMENDED)

 

            Petition for Approval for Transfer of Structured Settlement Payment Rights CONTINUED to Fri., Oct. 18, 2019, at 3:00 p.m., in Courtroom 16.  The proof of service is defective since it shows service only by Federal Express.  Petitioner must provide proper proof of service showing service of the original papers and the new hearing date with service personally or by U.S. mail in accord with Insurance Code sections 10139.5(c)(2) and 10139.2, or otherwise as required for service of summons and complaints or petitions. 

 

            Should Petitioner cure this defect, with sufficient notice to this department before or at the hearing in time for it to consider the new proof of service, the Court will GRANT the petition.

 

 

© 2019 Superior Court of Sonoma County