Nov 11, 2019

TENTATIVE RULINGS

LAW & MOTION CALENDARS

Wednesday, October 30 and Wednesday, November 6, 2019, 3:00 p.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, Tuesday, November 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.

 

 

 

            The Court provides tentative rulings for the following matters that were originally scheduled to be heard on the Wed., Oct. 30, 2019, Law & Motion calendar, which were continued to Wed., Nov. 6, 2019, at 3:00 p.m. pursuant to the notice posted on the Court’s website on Nov. 4, 2019:

 

1.         MCV-247090, Weiss v. Meehan

 

            Defendant/Cross-Complainant’s Motion for Leave to File First Amended Cross-Complaint GRANTED.  Under Code of Civil Procedure section 473(a)(1), amendments are left to the sound discretion of the trial court.  Judicial policy favors amendment to allow resolution of all potential claims and disputes between parties, so such motions are examined liberally.  Nestlé v. Santa Monica (1972) 6 Cal.3d 920, 939. 

 

            Normally delay alone is not a sufficient reason to deny amendment, unless the delay has resulted in prejudice to another party.  Hirsa v. Sup. Ct. (Vickers) (1981) 118 Cal.App.3d 486, 490.  Prejudice exists where the amendment would require delaying trial so as to cause a loss of critical evidence, added costs of preparation, increased discovery burdens, and similar problems.  Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488.  There is in fact a strong policy in favor of granting leave to amend.  Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.  The policy of liberally allowing parties to amend pleadings applies to allowing them to amend at any time up to and including trial, absent prejudice.  Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.

 

            As Defendant/Cross-Complainant asserts, the amendments add no new issues or circumstances but merely better organize the allegations and better clarify the basic facts and causes of action already pleaded.  Trial is not set and there is no apparent threat of prejudice. 

 

            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.         MCV-247290, Midland Funding, LLC v. Cardiel

 

            Plaintiff’s Motion for Judgment on the Pleadings CONTINUED to Wed., Dec. 4, 2019, at 3:00 p.m., in Courtroom 16 because the proof of service again appears to be defective.  Originally, at the hearing on September 20, 2019, this Court continued the matter due to service on the incorrect address, with the following ruling:

 

“The address on which Plaintiff effected service appears to be incorrect.  It shows service on Defendant at 1772 Piner Rd, #1, Santa Rosa but Defendant’s address of record and the address given on her answer is 5943 Chandler Ct, Santa Rosa.  The confusion appears to stem from the fact that when Defendant filled out her application for waiver of court fees, which she filed before her answer, and the order granting that application, filed after her answer, she gave 1772 Piner Rd #1 as her address but this appears to be the address of her place of work.” 

 

            On September 26, 2019, Plaintiff filed an amended motion showing the new hearing date and with a new proof of service.  However, this again shows service on the same address, incorrect, as before, 1772 Piner Rd #121, in Santa Rosa.  Plaintiff has failed to cure the defect. 

 

            Plaintiff must serve Defendant at not only 1772 Piner Rd #121, Santa Rosa, but also at the following address: 5943 Chandler Ct, Santa Rosa, CA 95409, or otherwise explain to the court’s satisfaction why it should not do so and demonstrate that service is proper and notice sufficiently provided.

 

 

3.         MCV-247691, Looney v. Ochoa

 

            Plaintiff’s Motion to Compel Answers to Post Judgment Discovery; and for Award of Sanctions GRANTED.  The sanctions which pro-per litigants may recover is limited to out-of-pocket costs.  Argaman v. Ratan (1999) 73 Cal.App.4th 1173,1179.  Sanctions of $60 awarded to the moving party. 

 

            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.

 

 

4.         SCV-262335, Mechanical Icebergs, LLC v. Daniel

 

            Appearances are required.

 

 

5.         SCV-263113, Brown v. Thompson

 

            Defendants/Cross-Complainants’ Motion to Compel Further Responses to Discovery and Requests for Sanctions is DROPPED from calendar because neither party filed any supplemental briefing.

 

            The Court appreciates and thanks Discovery Facilitator Christopher G. Costin for his time and efforts in this matter.

 

 

6.         SCV-264841, Pereira v. Sonoma County Department of Child Support Services

 

            Defendant County of Sonoma Department of Child Support Services’ Demurrer SUSTAINED with leave to amend, with the exception of the purported demurrer to the exemplary damages.  Plaintiff shall file an amended complaint within 20 days of notice of entry of this order.

 

            A party may not demur to damages or another remedy but only to a cause of action.  A motion to strike is the proper method of attacking any particular damages or other remedy.

 

            However, Plaintiff fails to state facts sufficient to constitute any cause of action and the allegations are fundamentally unclear.  Nothing indicates what Defendants actually did, who Defendant Claudine Kent even is or how she is involved, what defamation occurred, when, or the context or nature of it.  As for demurring party, Plaintiff fails to state any statutory bases of liability, which is required for this Defendant as a government agency.  Plaintiff must plead these statutory bases of liability and must plead facts sufficient to support the elements of the causes of action and to allow Defendants to understand what they allegedly did and how it is wrongful.

 

            The Supreme Court noted in Creason v. State Dept. of Health Services (1998) 18 Cal.4th 623, at 630, that a government entity is only liable in tort pursuant to a statute or other enactment.  This limit on liability is found in Government Code section 815, which states that a public entity is not liable for an injury “[e]xcept as otherwise provided by statute.”  The legislative comments on the statute indicate that it abolishes all common-law liability on the part of the government. 

 

            Because of this, the complaint must “at least” specify the statute or enactment that allegedly creates the duty.  Searcy v. Hemet Unified School District (1986) 177 Cal.App.3d 792, 802.  The court in Searcy, at 802, stated that “every fact essential to the existence of statutory liability must be pleaded with particularity, including ... a statutory duty.”  See also Weil & Brown, Cal. Practice Guide: Civ. Proc. Before Trial (The Rutter Group 2011) 6:199.11; 4 Witkin, Cal.Proc. (4th Ed.1997) Pleading, §579. 

 

            General allegations are insufficient to establish a statutory cause of action, including liability under the Government Claims Act (the Act).  Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 113.  Plaintiff “must set forth facts in his complaint sufficiently detailed and specific to support an inference that each of the statutory elements of liability is satisfied.”  Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1, 5.  The court in Shields interpreted this rule as supporting the goal of the Act in confining governmental liability to “rigidly delineated circumstances.”  See, Williams v. Horvath (1976) 16 Cal.3d 834, 838.

 

            Abuse of process is the misuse of process in the name of the court, such as attachment, for a purpose other than that for which the process was designed.  5 Witkin, Summary of Cal. Law (9th Ed.1988) Torts §459; see, Meadows v. Bakersfiled Sav. & Loan Co. (1967) 250 Cal.App.2d 749, 753.  The elements include 1) an ulterior purpose and 2) a “wilful act” in using process that is not proper for the regular conduct of a proceeding.  5 Witkin, supra, §§463-464; Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1465 (allegation that process server knowingly made a false declaration of service shows “ulterior purpose”).  Malice is otherwise irrelevant.  Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 886; 5 Witkin §463. 

 

            The Court appreciates and thanks Demurrer Facilitator Lewis Warren for his time and efforts in this matter.

 

            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.

 

           

7.         SCV-264868, Bridges v. Jameson Animal Rescue Ranch, Inc.

 

            Defendants’ Motion to Transfer Venue GRANTED.

 

            The burden is on the moving party to show that venue is not proper in the county where the action was filed and that venue is proper in the county to which defendant wishes to transfer the action.  Mission Imports, Inc. v. Sup. Ct. (1982) 31 Cal.3d 921, 929.  The burden requires the moving party to negate all the possible bases for venue.  Karston Industries, Inc. v. Sup. Ct. (1969) 273 Cal.App.2d 7, 8-9.  

 

            Venue in transitory actions generally is properly in the county where the defendant resides, with certain exceptions.  Code of Civil Procedure section 395(a). 

 

            Venue in contract actions is also proper where the contract was entered into, i.e., where the words of acceptance were spoken, or where the obligation was to be performed.  Code of Civil Procedure section 395(a). 

 

            Contrary to the rule for actions against individuals, in actions against corporations, venue is proper in the place of performance of a contract regardless of whether specified in the agreement, or where the obligation or liability arose or the breach occurred.   Code of Civil Procedure section 395.5.  The court in Shida v. Japan Food Corp. (1960) 185 Cal.App.2d 443, at 447-448, explained that where a corporate entity is a defendant, then venue as to that defendant is proper based on its principle place of business or where the obligation or liability arose, and the corporation must defeat all these bases of venue. In tort cases, the “liability arises” in any county where an injury occurred.  See, Mission Imports, Inc. v. Sup. Ct. (1982) 31 Cal.3d 921, at 931.

 

            However, where a plaintiff sues corporate and individual defendants, and bases venue solely on the non-residence bases for a corporation in section 395.5, the individual defendants may still move to transfer venue to their county of residence or that of the corporation.  Brown v. Sup. Ct. (1984) 37 Cal.3d 477, 482; Mosby v. Superior Court (1974) 43 Cal.App.3d 219, 226.

 

            The complaint indicates Napa County is a proper county for venue but the fundamental question which the Court first must reach is whether Sonoma County is not.  Even Plaintiffs’ own allegations do not indicate that any Defendant lives in Sonoma County and states that they all live in Napa County; they state that the corporate Defendant is located in Napa County; they state that Plaintiffs’ work was based in Napa County; and the only references to Sonoma County are that one Plaintiff lives here and Plaintiffs’ work sometimes brought them to this county in undisclosed ways for unspecified times or reasons. 

 

            Defendants also demonstrate with their several declarations that the individual Defendants are all residents of either Napa, San Francisco, or Contra Costa Counties.  They provide no other evidence, however, and do not give any information about the employment or contract, or performance, the ranch location, etc. 

 

            Plaintiffs argue that venue is proper here based on the Ranch, the corporate defendant which Defendants’ motion largely ignores.  Their opposition includes three declarations. These state that one lived in Sonoma County during the employment and all three had duties for Defendants which took them consistently into Sonoma County to transferring animals, conducting pet adoptions in Sonoma County, etc.; while at least one was often based in Sonoma County in charge of Defendants’ two Sonoma County facilities in Santa Rosa and Sonoma; Plaintiffs worked unpaid overtime in Sonoma County; they cared for animals at other facilities in Sonoma County.  Plaintiffs contend that the liability or obligation arose in Sonoma County, at least in part, and this appears to provide a sufficient non-residence basis for venue against the corporate Defendant.

 

            As Defendants argue, however, these individual Defendants have a right to transfer venue to their county of residence since the only basis for venue here is the non-residence basis against corporations under Code of Civil Procedure section 395.5.

 

            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.

 

 

            The Court provides tentative rulings for the following matters that are set on the Wed., Nov. 6, 2019, 3:00 p.m. Law & Motion calendar:

 

1.         MCV-247060, Looney v. Hospitality and Network Development Services, Inc.

 

            Plaintiff’s Motion to Compel Answers to Post Judgment Discovery; and for Award of Sanctions GRANTED.  Argaman v. Ratan (1999) 73 Cal.App.4th 1173,1179.  Sanctions of $60 awarded to the moving party. 

 

            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-259334, Seuferer v. Ocwen Loan

 

            DROPPED from calendar at the request of counsel for moving parties; notice of settlement filed 11/4/19.

 

 

3.         SCV-262429, Security National Insurance Company v. Clifford

 

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

 

 

4.         SCV-263125, Diaz v. Sutter Bay Hospitals

 

            CONTINUED to Fri., Nov. 15, 2019, 3:00 p.m. Courtroom 16 pursuant to 10/21/19 stipulation and order.

 

 

5.         SCV-263260, Harris v. Mid-Century Insurance Company

 

            DROPPED from calendar pursuant to Notice of Withdrawal of Motion filed 10/21/19 by counsel for moving parties.

 

 

6.         SCV-263680, Vega v. St. Joseph Health Northern California

 

            CONTINUED to Fri., Nov. 15, 2019, 3:00 p.m., Courtroom 16 on the Court’s own motion.  Notice mailed 11/4/19.

 

 

7.         SCV-264653, Anderson v. Bowser Family Partnership

 

            Defendant’s Demurrer to First Amended Complaint SUSTAINED with leave to amend.  Defendant only brings a general demurrer on the basis that the first amended complaint fails to state facts sufficient to constitute a cause of action.  This is correct.  Plaintiff pleads no facts or elements of any cause of action whatsoever and it is impossible to tell what happened or how Defendant may be liable for anything. 

 

            Plaintiff has leave to file an amended complaint curing these defects within 20 days of service of the notice of entry of this order.

 

            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.

 

 

8.         SCV-264880, Vasquez v. Midfirst Bank

 

            CONTINUED to Fri., Nov. 15, 2019, 3:00 p.m., Courtroom 16 on the Court’s own motion.  Notice mailed 11/4/19.

 

 

 

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