Oct 02, 2014



Wednesday, October 1, 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, September 30, 2014.  Parties in small claims cases and motions for claims of exemption are exempt from this requirement

1. MCV-202091; Capital One Bank v. Randazzo

Appearance required [claim of exemption].



2. MCV-226895; Warrick v. Ziegler

This is on calendar for the Defendants’ Motion to Compel the Deposition of the Plaintiff.  The Plaintiff has failed to appear at six previously noticed deposition dates.  The Defendants previously had a motion to compel deposition, however after meeting and conferring, the Plaintiff agreed to a deposition date, but again failed to appear.  This motion followed, with a request for sanctions.  The motion is unopposed.


The Defendants are entitled to the relief they seek.  The Plaintiff has provided no justification for her failure to sit for her deposition.  (See CCP § 2025.450.)  Accordingly, the motion is granted, and the Plaintiff is ordered to make herself available, and to attend her deposition within ten days of service of this order.  Further, the court will impose sanctions in the amount prayed, $476.00.



3. MSC-183096; Mackie v. Clark

Appearance required.



4. SCV-253148; Friends of Laffery Park v. Pikachu II

Defendants have demurrered to the Second Amended Complaint (SAC).  The Defendants contend that the Plaintiffs have failed to allege facts sufficient to state a claim with respect to the First, Second, Third, and Fourth Causes of Action.  Additionally, the Defendants argue that Plaintiffs Friends of Lafferty Park and Individuals (Friends of Lafferty Park) lack standing as to the Second and Third Causes of Action, and that all of the Plaintiffs lack standing with respect to the First and Fourth Causes of Action.  Further, the Defendants assert that the First and Fifth Causes of Action are time barred.


The Plaintiffs oppose, in essence arguing that the SAC cures the defects of the First Amended Complaint, and in the process alleges facts sufficient to state claims against the Defendants.  In the SAC the Plaintiffs allege that there are two historical, and express, declaration of a public road which would allow access over the Disputed Property.  This theory relies on an express declaration, as opposed to the FAC’s reliance on an implied declaration.  The Plaintiffs further contend that the Causes of Action for Public Nuisance and Ejectment flow from the Defendants’ alleged interference with the public road easement.  The Plaintiffs further allege that the Defendants’ interference and obstruction of the public road is not time barred.  (Citing CC § 3490; and Tucker v. Watkins (1967) 251 Cal.App.2d 327.)  The Plaintiffs further contend that the Defendants’ attack on the Third Cause of Action for easement by necessity is meritless.  The Plaintiffs point out that Plaintiff City of Petaluma does not have the power of eminent domain outside the city limits unless there is express statutory authority—authority which does not exist in this situation.  (See CCP § 1240.050.) The Plaintiffs further argue that the Defendants should be estopped from taking this position because they took an opposite tack in an earlier lawsuit (i.e. they argued that the City did not have eminent domain powers.)


As for standing, Plaintiffs Friends of Lafferty Park contend that the public interest of having a park on Plaintiff City’s property provides basis for their standing.  (Citing Marks v. Whitney (1971) 6 Cal.3d 251; Friends of the Trails v. Blasius (2000) 78 Cal.App.4th 810.)


With respect to whether the First Cause of Action is time barred, the Plaintiffs contend that the Disputed Property is in possession of Real Party in Interest County of Sonoma and Plaintiff City—and therefore no statute of limitations runs.  (Citing Muktarian v. Barmby (1965) 63 Cal.2d 558.)


Quiet Title and Standing


It is axiomatic that the party seeking to quiet title must have an interest in the property, otherwise they lack standing.  (See Chao Fu, Inc. v. Wen Ching Chen (2012) 206 Cal.App.4th 48, 59.)  Here the alleged express road dedications inured to the benefit of the County, not the Plaintiffs.  (SAC ¶¶ 22, 23.)  The Plaintiffs do not cite any authority for the proposition that Plaintiff Individuals, as interested citizens, and Plaintiff City, as an adjacent landowner, may press the property rights of a third party for their benefit.  Furthermore, the county to who the dedication benefits is not a Plaintiff to this action, and as the SAC alleges, has declared that the Lafferty Ranch is landlocked.  (SAC ¶ 3.)  The cases relied on by the Plaintiffs are factually distinguishable in that they dealt with public trust easements, and can properly plead adverse possession theory—neither is properly alleged in the SAC.

Public Nuisance/Ejectment


The SAC contends that the Defendants’ encroachments and obstruction of the “public road” constitute a public nuisance.  Here, Plaintiff Individuals lack standing as they have failed to allege private injury as a result of the alleged nuisance.  Plaintiff City’s allegations also fail to allege a proper basis for a public nuisance.  The City alleges that the Defendants are obstructing a public road, but acknowledge that the inchoate public road dedications were never developed by their owner, the County.  The City further acknowledges that none of the Disputed Property has ever been used as a public road, customary or otherwise.


Easement by Necessity


Plaintiff Individuals have failed to allege facts that would demonstrate their standing to allege an easement by necessity.  Plaintiff City has failed to allege a strict necessity.  In order to establish an easement by necessity, the dominant tenement must be completely landlocked, the easement must be strictly necessary for access to the dominant tenement, and there cannot be any other possible means of access.  (Murphy v. Burch (2009) 46 Cal.4th 157 163-164.)  To satisfy the strict-necessity requirement, the party claiming the easement must demonstrate it is strictly necessary for access to the alleged dominant tenement. (Kripp v. Curtis (1886) 71 Cal. 62, 65.)  No easement will be implied where there is another possible means of access, even if that access is shown to be inconvenient, difficult, or costly.  (See ibid.)  Here, the City admits that it has access to its parcel via an easement over the Tavernetti parcel for the construction and maintenance of water supply fixtures.  (See SAC ¶ 47.)  While the City contends that it has not accessed its property via the Tavernetti easement for some time, the SAC does not allege that the easement has been terminated.  It seems that the City does not need an easement, but rather, would prefer that the easement be granted over the Disputed Property.


Declaratory Relief


This cause of action is simply a restatement for the three other causes of action, which the Plaintiffs have failed to allege sufficient facts to support.


Accordingly, the demurrer to the SAC, as to Plaintiffs Friends of Lafferty Ranch, Kortum, Modell, Hagen, Maguire, Keller, and McChesney is sustained without leave to amend.  The demurrer, as to Plaintiff City is sustained without leave to amend as to the First and Second Causes of Action, and sustained with leave to amend as to the Third and Fourth Causes of Action.



5. SCV-253389; Salandra v. Hower

Pursuant to the Court’s August 27th order, Defendants shall either produce responses to the special interrogatories (without objection) at or before the hearing or present an order from the Hawaii action indicating that enforcement of the judgment has been stayed.


Absent production of a stay order, Defendants Robert and Ami Hower shall be personally sanctioned $1690.00 for the costs incurred by Plaintiff in preparing this discovery motion.



6. SCV-253629; Walker v. Ross

Defendants’ Motion to Compel Responses to Form Interrogatories, Special Interrogatories, and Demand for Production of Documents is granted.  Discovery was properly served on Plaintiff and no timely responses were provided.  Plaintiff shall provide responses, without objection, within twenty (20) days of the hearing of this motion.  Plaintiff is sanctioned $160.00 for time spent by defense counsel preparing and filing the motion.  Defense counsel shall prepare an order consistent with this ruling.



7. SCV-255135; Lawson v. Chaves

Attorney Beck’s Motion to be Relieved as Counsel is granted.



8. SCV-255478; Mazzaferri v. Mazzaferri

Defendant Edith Mazzaferri’s unopposed Motion to Quash is granted. The subject subpoenas were served on August 12, 2014, and commanded responses by August 22, 2014.  CCP § 2020.410(c) provides, in pertinent part: “[A subpoena] shall command compliance in accordance with Section 2020.430 on a date that is no earlier than 20 days after the issuance, or 15 days after the service, of the deposition subpoena, whichever date is later.” Here, the subpoena commanded compliance a mere nine days after its service—as such it was not drawn in accordance with the statute.


Accordingly, the motion is granted in its entirety.


© 2014 Superior Court of Sonoma County