May 27, 2016

LAW & MOTION CALENDAR                        AMENDED

WEDNESDAY, MAY 25, 2016, 3:00 P.M.

Courtroom 16 – Hon. Eric Labowitz for the Hon. Nancy Case Shaffer

3035 Cleveland Avenue, Santa Rosa

(707) 521-6725

 

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) 521-6725 by 4:00 p.m. today, Tuesday, May 24, 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-230326, Main Street Homeowners’ Association v. Nguyen

CONTINUED to Wed., June 8, 2016, 3:00 p.m. to be heard by Judge Shaffer in Courtroom 16.

 

 

2.  MCV-234726, Collectronics, Inc. v. Capone’s, Inc.

Plaintiff’s Motion for Appointment of Michael Brewer as Receiver to sell the Defendants’ liquor license is granted.  The Plaintiff is to appear to discuss the amount of the undertaking to be required. 

 

The Plaintiff is to draft an appropriate order for the court’s signature required by Rule 3.1362, California Rules of Court.

 

 

3.  SCV-249647, Kurth v. Betrand

Plaintiff’s Motion for Leave to Amend Complaint is denied without prejudice. 

 

Defendants oppose the motion on the following grounds: the motion does not comply with California Rule of Court, Rule 3.1324; Plaintiff has been dilatory in seeking leave to amend; there is no good cause for granting such leave; amendment would severely prejudice defendants; and the proposed punitive damages allegations are time-barred under Code of Civil Procedure section 425.13. 

 

As a threshold matter, Defendants are correct that Plaintiff’s motion is procedurally flawed. Plaintiff’s counsel’s declaration filed in support of the motion does not satisfy the requirements of California Rules of Court, Rule 3.1324(b). That subdivision provides:

 

“(b) Supporting declaration

A separate declaration must accompany the motion and must specify:

(1) The effect of the amendment;

(2) Why the amendment is necessary and proper;

(3) When the facts giving rise to the amended allegations were discovered; and

(4) The reasons why the request for amendment was not made earlier.”

 

Absent compliance with Rule 3.1324(b), the court declines to evaluate the merits of the requested relief.

 

Accordingly, Plaintiff’s motion is denied without prejudice.

 

 

4.  SCV-252561, USAA Federal Savings Bank v. Soldis

This is on calendar for the Plaintiff/Cross-Defendant USAA Federal Savings Bank’s  motion for summary judgment, or in the alternative, motion for summary adjudication.  The Plaintiff is seeking summary judgment as to its own declaratory judgment action, and as to each of Defendant/Cross-Complainant Joseph Soldis’s causes of action contained in the cross-complaint.  In the alternative, the Plaintiff seeks adjudication of each of the Defendant’s causes of action (First Cause of Action for Breach of Contract, Fourth Cause of Action for Negligence, and Fifth Cause of Acton for Conversion), and to adjudicate the Defendant’s prayer for punitive damages.

 

Summary Adjudication—Declaratory Relief

 

The Defendant concedes that if he owed money for overdrafts to the Plaintiff, then the Plaintiff would have the right (under the depository agreements) to offset those debts with later deposits made by the Defendant.  But, the Defendant argues, the act of seizing the $50 has already occurred, and there is no risk of the Plaintiff seizing additional funds because all of the Defendant’s accounts are closed.  The court agrees with the Defendant, the declaratory relief action is not ripe, and therefore the Plaintiff is not entitled to summary judgment.  (See Cardellini v. Casey (1986) 181 Cal.App.3d 389, 395-396, 226 Cal.Rptr. 659; Baldwin v. Marina City Properties, Inc. (1978) 79 Cal.App.3d 393, 408, 145 Cal.Rptr. 406.)  Here, the only controversy is whether the Plaintiff was entitled to offset the alleged debts by seizing the $50 out of one of the Defendant’s accounts.  The Defendant concedes that offset, in theory, is allowed when there is a valid debt to offset.  Further, as the Defendant’s evidence establishes, the parties are no longer engaged in a business or contractual relationship under which the Plaintiff would seize additional funds.

 

Accordingly, the Plaintiff is not entitled to summary judgment on its declaratory relief claim.

 

Motion for Summary Judgment—Cross-Action

 

The Plaintiff also seeks summary judgment in its favor with respect to the Defendant’s cross-action.  The Plaintiff argues that it is undisputed that the Defendant owes the money ($4,214.30 and $585.50) and that the Plaintiff has the authority to offset the money owed with new deposits.  Given these facts, the Plaintiff argues that the Defendant cannot maintain any of the three causes of action against it.  Indeed, the Defendant concedes in his opposition that if he owes the money he cannot maintain the causes of action.

 

The Defendant opposes, arguing that there are material issues of fact related to whether he actually owes the Plaintiff the monies alleged.  The Defendant alleges that the alleged $4,214.30 debt was settled by the parties when the Plaintiff paid the Defendant approximately $5,000 to settle his small claims suit.  As to the alleged overdraft of $585.50, the Defendant flatly denies that he ever over drafted his account with the Plaintiff.

 

With respect to the Defendant’s reliance on the settlement agreement, the evidence does not support the Defendant’s position.  The Defendant’s evidence suggests that the small claims action was premised on the Defendant seeking his closing costs related to him refinancing out of his previous loan with the Plaintiff, and into a new loan.  Completely absent from the small claims complaint, or the letters between the parties at the time is a discussion regarding the alleged debt owed to the Plaintiff.  There is simply no evidence that the small claims action or the settlement agreement it spawned was premised on the alleged debt owed to the Plaintiff.  Especially illuminating is the Defendant’s October 18, 2002 letter, wherein the Defendant enumerates the damages he seeks, to wit, “the recovery of the closing costs…all interest paid on the account during the loan (about $10,000.00); punitive damages; all fees and attorney fees pursuant to 998(a).”  (See Dec. Soldis, Exhibit B.)  The Defendant also argues that the Plaintiff “charged off the debt.” (See Dec. Soldis, ¶ 18.)  The Defendant points to a letter that indicates that the Plaintiff will be filing a 1099-C to evidence the debt cancellation.  Neither party has actually produced a 1099-C that was filed with the IRS, and therefore it can have no application to the instant case.  Even if the 1099-C was in evidence, it is well-settled that the 1099-C is simply an IRS reporting requirement, not an indication that the debt is somehow forgiven.  (See e.g. FDIC v. Cashion (2012) 720 F.3d 169.)

 

While the Defendant spills much ink with respect to the $4,214.30, the settlement agreement and the 1099-C, the issue there is whether the Plaintiff has adduced evidence of the overdraft—it has not.  The only evidence comes in the way of an unsupported statement (that is without foundation) in the Gonzalez declaration that “Soldis incurred an overdrawn balance on his account ending in 9791 of $4,214.30.”  (Gonzalez Dec., ¶ 7.)  The Plaintiff adduces no statements from that account showing the negative balance, nor lays any credible foundation that Mr. Gonzalez would have firsthand knowledge of the Defendant’s account.  Contrast this lack of evidence with the Plaintiff’s evidence that the Defendant had an overdraft in his 7438 account for $570.11.  (See Dec. Gonzalez, Exhibit 2.)  Further, the Defendant has failed to create a triable issue of fact as to the October 2005 overdraft.  Moreover, the October 2005 overdraft was not at all related to the settlement agreement, and therefore offsetting that overdraft with the $50 could not be a breach of the settlement agreement, or the depository agreement.

 

Accordingly, the Plaintiff has established that the Defendant cannot support each element in his cross-complaint, namely that the Plaintiff was not entitled to seize the $50 to offset the debts owed to it.  In particular, the evidence is undisputed that the Defendant had, at least, a $585.50 overdraft with the Plaintiff, the Defendant cannot support his claims for breach of contract, negligence or conversion.

 

As a result, the Plaintiff is entitled to summary judgment against the Defendant on the three causes of action.

 

 

5.  SCV-255399, Sargent v. Board of Trustees of the California State University

This case is on calendar for Defendants Board of Trustees of the California State University’s and Craig Dawson’s (“Defendants”) Motion to Compel Further Responses to Requests for Production of Documents, Set Four, from Plaintiff Thomas R. Sargent (“Plaintiff”). 

 

With respect to document requests 40, 42, 44, 46, 48, 50, 52, 54, 56, 58, 60, 62, and 64, Defendants’ motion is granted.  These requests seek communications between Plaintiff and various third party individuals made between January 2001 and the present.  In response to these requests, Plaintiff asserts a number of objections, including that the requests are overbroad, violate Plaintiff’s right to privacy, and that the requests seek information already in Defendants’ possession, custody and control.  Following these objections, Plaintiff states that “[s]ubject to and without waiving this objection (sic), Responding Party responds: The production demanded will be allowed in part and that all documents or things concerning health and safety issues at Sonoma State University that are currently in the possession, custody, or control of the Responding Party and to which no objection is being made will be included in the production.” 

 

In their motion, Defendants agree to limit the scope of these requests to “correspondence related to alleged health and safety issues at Sonoma State University” but Defendants challenge the remaining objections.  In his opposition, Plaintiff agrees to provide a privilege log for his communications with certain individuals and explain why no responsive documents exist as to others.  Plaintiff contends that these concessions should resolve any dispute with respect to these requests.  Plaintiff is incorrect.

 

To start, Plaintiff did not assert the attorney-client privilege or attorney work-product objections in his original responses to these requests and therefore, he waived his right to their protections.  Thus, Plaintiff’s agreement to provide a privilege log is unnecessary.  (See, Evid. Code § 912(a); see also, Code Civ. Proc. § 2031.300(a); Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1126 [failing to assert the attorney-client privilege or work-product protection in a timely response to an inspection demand results in a waiver.].)

 

Additionally, Plaintiff’s statement in his opposition that he “has no objection to…affirming why documents do not exist” for certain individuals is insufficient.  Code of Civil Procedure section 2031.230 sets forth the requirements for a party responding to requests for production of documents when the party in unable to comply.  Specifically, the statute states, “[a] representation of inability to comply with the particular demand for inspection…shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand.  This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party.  The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.”  (Code Civ. Proc. § 2031.230.)  If in fact Plaintiff is unable to produce documents in response to certain requests, his response must comply with section 2031.230.      

 

Finally, the court finds that Plaintiff’s overbroad and privacy objections are inapplicable and unsupported, especially in light of Defendants’ agreement, albeit late agreement, to limit the scope of these requests to “correspondence related to alleged health and safety issues at Sonoma State University.”  (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2015) ¶¶ 8:1084 p. 8F-44, citing to Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783 [Courts generally do not permit an “overbroad” objection unless the request is totally unintelligible.]; see also, Hill v. Nat. Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35-37 [the elements necessary to assert a constitutional right to privacy are: (1) a legally protected interest, (2) a reasonable expectation of privacy, and (3) a serious invasion of the privacy interest.]; Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221 [Party asserting privacy objection has the initial burden of demonstrating the protection applies.].)  Here, Defendants’ requests are not “totally unintelligible” and Plaintiff has not demonstrated that the requests seek information related to a “legally protected interest” or that production would result in a “serious invasion of a privacy interest.”    

 

Accordingly, because it appears that Plaintiff has withheld documents based on objections that were not asserted and therefore waived, and because it is unclear whether Plaintiff withheld other documents based on inapplicable and unsupported objections, Plaintiff is ordered to serve further verified responses to requests 40, 42, 44, 46, 48, 50, 52, 54, 56, 58, 60, 62, and 64, within ten days of the court’s final order on this motion.  As agreed by the parties, the requests shall be limited in scope to “correspondence related to alleged health and safety issues at Sonoma State University.”  The responses shall not include inapplicable and unsupported objections and shall not include objections that have been waived.  If Plaintiff contends that no responsive documents exist, the responses shall comply with Code of Civil Procedure section 2031.230.

 

With respect to document requests 41, 43, 45, 47, 49, 51, 53, 55, 57, 59, 61, 63, and 65, Defendants’ motion is granted.  These requests seek documents reflecting communications between Plaintiff’s attorneys or representatives and various third party individuals made between January 2001 and the present.  In response to these requests, Plaintiff again asserts a number of objections, including that the requests are overbroad, violate Plaintiff’s right to privacy, and that the requests seek documents protected from disclosure by the attorney-client privilege and attorney work-product doctrine.  Unlike his prior responses, Plaintiff stands on these objections and does not agree to produce any documents responsive to these requests.  For the same reasons stated above, the court finds that Plaintiff’s overbroad and privacy objections are inapplicable and unsupported.  However, while the court finds that the attorney-client privilege and/or work-product doctrine may be applicable to these requests, the party claiming those protections has the burden of providing the preliminary facts necessary to show that the respective protection applies.  (See, Code Civ. Proc. § 2031.240(c); see also, Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733; Citizens for Ceres v. Superior Court (2013) 217 Cal.App.4th 889, 911.)

 

Accordingly, Plaintiff is ordered to serve further verified responses to requests 41, 43, 45, 47, 49, 51, 53, 55, 57, 59, 61, 63, and 65, within ten days of the Court’s final order on this motion.  As agreed by the parties, the requests shall be limited in scope to “correspondence related to alleged health and safety issues at Sonoma State University.”  The responses shall be made without inapplicable and unsupported objections.  If Plaintiff withholds any documents based on the attorney-client privilege or work-product doctrine, Plaintiff shall provide a privilege log in compliance with Code of Civil Procedure section 2031.240(c), with sufficient factual information to allow Defendants, and the court, to evaluate the merits of each claim.  If Plaintiff contends that no documents exist, his response shall comply with Code of Civil Procedure section 2031.230

 

With respect to document requests 67, 68, 69 and 70, Defendants’ motion is granted.  These requests seek documents reflecting communications sent or received by Plaintiff related to the retaliation and harassment alleged in his complaint.  Plaintiff objects to these requests on the grounds they are unintelligible, overbroad and seek information already in Defendants’ possession, custody and control.  Following these objections, Plaintiff states that “the production demanded will be allowed in part and that all documents or things not already produced and to which no objection is being made will be included in the production.”  The court finds that Plaintiff’s objections are again inappropriate and unsupported.  Accordingly, because it is not clear whether Plaintiff has withheld any responsive documents based on the asserted objections, Plaintiff is ordered to serve further responses to requests 67, 68, 69 and 70, within ten days of the court’s final order on this motion.  The responses shall be made without inapplicable and unsupported objections and shall comply with Code of Civil Procedure section 2031.210.  If Plaintiff contends that no documents exist, his response shall comply with Code of Civil Procedure section 2031.230

 

With respect to document request 71, Defendants’ motion is granted.  This request seeks documents related to air monitoring performed or planned in Peter Phillips’ office from January 2015 to the present.  Plaintiff objects on the grounds the request is overbroad, it seeks documents protected from disclosure by the attorney-client privilege and work product doctrine and it constitutes an unwarranted invasion of privacy.  Again, based on these objections, Plaintiff does not agree to produce any documents in response to this request. 

 

For the reasons stated above, the court finds Plaintiff’s overbroad and privacy objections are inapplicable and unsupported.  Accordingly, Plaintiff is ordered to serve a further response to request 71 within ten days of the court’s final order on this motion.  The response shall be made without inapplicable and unsupported objections and shall comply with Code of Civil Procedure section 2031.210.  If Plaintiff withholds any responsive documents based on a claim of attorney-client privilege or work-product doctrine, Plaintiff shall provide a privilege log in compliance with Code of Civil Procedure section 2031.240(c), with sufficient factual information to allow Defendants, and the court, to evaluate the merits of each claim.  If Plaintiff contends that no documents exist, his response shall comply with Code of Civil Procedure section 2031.230

 

Finally, with respect to document request 72, Defendants’ motion is granted.  This request seeks the native version of an email from Plaintiff’s attorney VaLinda Kyrias to unknown recipients.  A hard copy version of this email was already produced however; the hard copy document does not include the list of recipients.  Defendants argue that the native version of this email is necessary to identify the recipients, all of whom are potential witnesses in this case.  Plaintiff objects to this request on the grounds the request is overbroad, it seeks documents protected from disclosure by the attorney-client privilege and work product doctrine and it constitutes an unwarranted invasion of privacy.  Again, Plaintiff stands on these objections and does not agree to produce the document. 

 

For the reasons as stated above, the court finds that Plaintiff’s overbroad and privacy objections are without merit and unsupported.  Additionally, because a hard copy version of this email has already been produced, any attorney-client privilege or work-product protection that may have previously applied to this email has been waived.  (Evid. Code § 912(a) [disclosing a privileged communication in a nonconfidential context constitutes a waiver of the privilege.].)  Moreover, the names of recipients of an otherwise privileged communication are not themselves covered by the privilege.  In fact, disclosure of the recipients is necessary to determine whether the privilege was properly asserted.  (See, Code Civ. Proc. § 2031.240(c).)  Accordingly, within ten days of the final order on this motion, Plaintiff shall produce the native version of this email. 

 

Because most of these disputed issues should have been resolved during the required meet and confer process, Defendants’ request for sanctions is denied. 

 

Defendants’ counsel is directed to prepare a final order consistent with this tentative.

 

 

6.  SCV-255625, George v. Gateway Financial Corporation

This case is on calendar for Defendants State Farm Drive, LP’s and Napa County Office of Education’s (“Defendants”) Motion for Summary Judgment.  Plaintiff Regina George has not filed an opposition to the motion. 

 

“A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.”  (Code Civ. Proc. § 437c(a)(1).)  A defendant moving for summary judgment may demonstrate that the plaintiff’s cause of action has no merit by showing that (1) one or more elements of the cause of action cannot be established, or (2) there is a complete defense to that cause of action.  (Code Civ. Proc. § 437c(p)(2); see also, Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.)  This showing must be supported by evidence, such as affidavits, declarations, admissions, interrogatory answers, depositions, and matters of which judicial notice may be taken.  (Code Civ. Proc. § 437c(p)(2); see also, Aguilar, supra, 25 Cal.4th at 850, 855; Collin v. CalPortland Co. (2014) 228 Cal.App.4th 582, 587.)  If the moving papers make a prima facie showing that justifies a judgment in the defendant’s favor, the burden shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact.  (Code Civ. Proc. §437c(p)(2); see also, Aguilar, supra, 25 Cal.4th at 849-850.)  The plaintiff may not simply rely on the allegations of its pleadings but, instead, must set forth the specific facts showing the existence of a triable issue of material fact.  (Code Civ. Proc. § 437c(p)(2).)  A triable issue of material fact exists if, and only if, the evidence reasonably permits the trier of fact to find the contested fact in favor of the plaintiff in accordance with the applicable standard of proof.  (Aguilar, supra, 25 Cal.4th at p. 850.)

 

The elements of a cause of action for negligence are: (1) a legal duty; (2) breach that duty; (3) proximate cause and (4) plaintiff’s injury.”  (Tribeca Companies, LLC v. First American Title Ins. Co. (2015) 239 Cal.App.4th 1088, 1114.)  The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, proximate cause, and damages, however, a plaintiff suing for premises liability has the added burden of showing that the owner of the property had actual or constructive knowledge of the dangerous condition that lead to plaintiff’s injuries.  (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.)  The “duty” that exists in a premises liability action is the owner’s duty to exercise reasonable care to maintain the property in a condition that is reasonably safe in light of the probability of injury to persons exercising ordinary care.  (Civ. Code §1714(a); see also, Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1156.)  In assessing whether a property owner has breached its duty of care, “[t]he controlling question is whether the property owner has acted as a reasonable person in the management of his or her property in view of the probability of injury to others.”  (Ortega, supra, 26 Cal.4th at 1205.)       

 

In the present case, Defendants have made a prima facie showing that Plaintiff’s causes of action for negligence and premises liability have no merit because Plaintiff cannot establish one or more essential elements.  To start, based on the papers submitted, Defendants have made a prima facie case that Plaintiff cannot establish that Defendants breached their duty to maintain the premises in a reasonably safe condition.  Defendants’ motion presents sufficient evidence, in sworn declarations that demonstrate that Defendants regularly inspected and maintained the subject property and that they did not have actual or constructive knowledge of a dangerous condition.  Furthermore, Defendants have made a prima facie case that Plaintiff cannot establish that any such breach was the proximate cause of Plaintiff’s injuries. 

 

Because Defendants met their burden and made a prima facie case that Plaintiff cannot establish one or more elements for both causes of action, the burden shifted to Plaintiff to show a triable issue of material fact.  Because Plaintiff has not filed an opposition to this motion and has not made any showing that a triable issue of material facts exists as to either cause of action, Plaintiff has not met her burden and Defendants’ motion is granted.   

 

Defendants’ counsel is directed to prepare a final order consistent with this tentative.

 

 

7.  SCV-255780, Wade v. Huerls

Attorney Thomas P. Kelly, Jr.’s Motion to be Relieved as Counsel of record for Defendants Patricia Kay Huerls and Imogene Riley will be granted if counsel provides proof of service of the [proposed] Order on Defendants Huerls and Riley at or before the hearing of this motion.  (See CRC, Rule 3.1362(d).)

 

 

8.  SCV-256475, Gustely v. The Motorcycle Shop, LLC

Appearances are required.  DROPPED FROM CALENDAR AT THE REQUEST OF COUNSEL FOR MOVING PARTY.

 

 

 

 

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