Jul 01, 2016

TENTATIVE RULINGS

LAW & MOTION CALENDAR

WEDNESDAY, JUNE 29, 2016, 3:00 P.M.

Courtroom 16 –Hon. Nancy Case Shaffer

3035 Cleveland Avenue, Santa Rosa

 

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 will need to contact the Judicial Assistant by telephone at (707) 521-6729 by 4:00 p.m. today, Tuesday, June 28, 2016.  Any party requesting an appearance must notify all other opposing parties of their intent to appear.  Parties in small claims cases and motions for claims of exemption are exempt from this requirement.

 

CourtCall is available for all Law and Motion appearances, EXCEPT parties in small claims cases and motions for claims of exemption which are mandatory appearances.  CourtCall can be reached directly at (888) 882-6878.

 

1.     MCV-236317, Portfolio v Wendel

Appearances required.

 

2.  MCV-238306, Loughlin v. Miller

Plaintiff’s unopposed motion to consolidate the instant matter with Miller v. Loughlin, MSC 186317 appears to be moot, as MSC-186317, Miller v. Laughlin, was dismissed on May 16, 2016 following a settlement subject to CCP 664.6.

 

3.  MSC-186275, Clark v. Hansel

Plaintiff’s unopposed motion to set aside the judgment for defendant entered May 26, 2016 is granted.  The court will issue a new notice of trial.

 

4.  SCV-252108, McGuire v. State of California, Department of Social Services, et al.

Petitioner’s motion to augment the record, for leave to file an amended writ, and objection to the court’s April 20, 2016 order denying the petition is dropped from calendar.   Because Petitioner filed an appeal, the court does not have jurisdiction to consider or to rule on any of these requests.  (see Safeco Ins. Co. of Illinois v Architectural Facades Unlimited, Inc. (2005) 134 Cal.App.4th 1477, 1482.)   Petitioner is unhappy with the adverse outcome on her Petition and assumes the adverse ruling is an indication of bias.  It is not.  The court found against Petitioner solely on the merits of her Petition. 

 

5.  SCV-255056, Gmeiner v. Breg

Defendant/Cross-Defendant Breg Inc.’s motion to disqualify counsel for Defendants/Cross-Complainants/Cross-Defendants Pacific Medical, Inc. and Top Shelf Manufacturing, LLC is granted.

 

6.  SCV-256355, Keating v. Brown

Plaintiff brings this motion to compel based on supplemental answers to Plaintiff’s Request for Production of Documents that were ordered by Judge Hardcastle at the time of the trial call on February 23, 2016.  The responses provided do not comply with the Discovery Act because it is not possible to tell from the answers whether the requested documents never existed, existed and were destroyed, or exist but are not presently in defendant’s possession and control.  Plaintiff asserts various objections, for example, to improper redactions, production of a single page that indicates on its face that it was part of a multiple page document, production of only two utility bills for the entire time she occupied the subject premises.  Plaintiff also contends that she found hand written notes from Defendant Dawson dealing with an inspection of the property—a note which was not produced, creating further cause for concern that relevant documents have been withheld.  Plaintiff also objects that no documents pertaining to the habitability of the premises have ever been produced.   In essence, the Plaintiff contends that the Defendant is relying on a defense to the evictions that is based on reliance on advice from agents and an attorney, but is failing to produce any documents to support these defenses.   It appears that Defendant has, in addition to giving very evasive responses and providing incomplete documents, has failed to produce relevant documents.   At the same time, Plaintiff has failed to comply with the requirements of a motion to compel.  She has failed to file a Separate Statement.  Based on the information provided to the court thus far, the court is not in a position to make specific rulings on the individual document requests subject to this motion or to determine the specific issue sanctions that Plaintiff is requesting.

Plaintiff’s motion to compel production is continued to July 20, 2016 allow the Plaintiff to file a separate statement detailing each Request for Production of Documents subject to this motion, how the Defendant responded, why the response was deficient, and what issue sanction Plaintiff is requesting based on each specific request for production. The Plaintiff’s separate statement is due on July 13, 2016. The Defendant may file a response to the separate statement by July 15, 2016.

 

7.  SCV-256364, Newman v. Bank of America

The motion of Defendant Stewart Lending Services’ (the Defendant) motion to compel responses to requests for production of documents is opposed only as to the request for sanctions in the amount of $1,342.50.  The motion is granted.  

On February 12, 2016, Defendant served Requests for Production of Documents on each of the Plaintiffs.  (Dec. Rosenbluth ¶ 4, Exhibit 3.)  Both Plaintiffs failed to respond, even after they were given an extension of time to answer. (Id. ¶ 5.)  As a result the Defendants are entitled to an order compelling a response.

 

Plaintiffs argue that sanctions are not warranted because they did not oppose the motions, and under CCP § 2031.300, sanctions would only be warranted if a party “unsuccessfully makes or opposes a motion to compel.” California Rules of Court, rule 3.1348(a) authorizes an award of sanctions “even though no opposition to the motion was filed, or opposition … was withdrawn, or the requested discovery was provided … after the motion was filed.”  Plaintiffs contend that CRC 3.1348(a) exceeds the rulemaking authority of the Judicial Council in that the rule is inconsistent with the sanctions statute.  The court issued a ruling on this argument, in this case, on April 27, 2016.  The court will not revisit its holding.  On the facts here, sanctions are available under Rule 3.1348(a).

Defendants’ motion to compel is granted and discovery sanctions are ordered in the amount of $1,342.50 against both Plaintiffs.  On May 27, 2016, Plaintiff Jane Newman filed a request for dismissal.

Therefore, only Plaintiff Dale Newman is ordered to serve verified responses to Defendant’s Requests for Production.  The responses shall be served and filed within ten days from the date of service of the written order on this motion. The Defendants are to submit an order consistent with this ruling.

 

8.  SCV-257543, Hecht v. Hardy

On Monday, June 27, 2016, the parties notified the court that they had resolved this motion.  The court appreciates the parties’ ability to their resolution of this matter.  Unfortunately, the notice was not received until after the motion had been fully worked up.

 

9.  SCV- 258195, Mittler v. Ighani

The motion for an order relieving Attorney Angelle Wertz as counsel of record for Plaintiff is denied.  The motion was not accompanied with a proof of service showing that the proposed order was served. (See CRC Rule 3.1362(d).) Further, the Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil (form MC-052) on file does not have the moving attorney’s signature.  If the moving attorney provides proof of service of the proposed order at the hearing and submits a signed original of form MC-052, the court would be inclined to grant the motion.

 

 

**Special set at 3:30– SCV 255399 Sargent v Board of Trustees of CSU

Appearances required.

 

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