Jul 24, 2016

TENTATIVE RULINGS

LAW & MOTION CALENDAR

WEDNESDAY, JULY 20, 2016, 3:00 P.M.

Courtroom 19 – Hon. Philip A. Champlin for Hon. Nancy Case Shaffer

3055 Cleveland Avenue, First Floor, 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) 521-6725 by 4:00 p.m. today, Tuesday, July 19, 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.  SCV-249580, American Express Centurion Bank v. Seltzer

CONTINUED to Wed., Aug. 24, 2016, 3:00 p.m. to be heard by Judge Shaffer.

 

 

2.  SCV-252574, McHenry v. Lukasko

CONTINUED to Wed., Aug. 10, 2016, 3:00 p.m. per notice of July 12, 2016.

 

 

3.  SCV-256355, Keating v. Brown

CONTINUED to Wed., Aug. 10, 2016, 3:00 p.m. to be heard by Judge Shaffer.

 

 

4.  SCV-256999, Bank of the West v. Sterling

On July 13, 2016 this court issued a tentative ruling (which became the ruling of the court) which ordered the parties to meet and confer regarding the Defendants’ supplemental responses.  The court further ordered the parties to author a joint brief which would indicate what matters remained unresolved.  Instead of heeding this court’s order, the parties submitted competing letters.  It is unfortunate that the parties’ attorneys were unable to submit a joint letter.

 

Having reviewed the letters, it appears that the parties have resolved several issues, specifically, that the Defendants will submit supplemental responses to Form Interrogatory 17.1 (as to Request for Admissions Nos. 29 and 38 from Craig Sterling and as to Request for Admissions No. 28 from Eric Sterling due July 22, 2016), and the Defendants will also be providing a privilege log as to their objections to the Requests for Production of Documents (due August 2, 2016).

 

With respect to the outstanding issues left to resolve, the court finds as follows. The Plaintiff’s request that the documents be produced in a “categorized format” is denied.  Code of Civil Procedure section 2031.280(a) provides the responding party the option to produce the documents “as they are kept in the usual course of business.”  There is no evidence suggesting that the Defendants did not produce the documents “as they are kept in the usual course of business.”  The Plaintiff also asks that the emails be produced “in their native format.”  The Plaintiff does not cite any section of the Discovery Act which requires that the emails be produced “in their native format.”  Accordingly, this request is denied as well.

 

The Plaintiff also contends that the Defendants’ responses to Form Interrogatory 15.1 are not code compliant because the responses fail to identify the documents that support their affirmative defenses.  The Defendants argue that they have identified all “documents attached to the Complaint, and all documents produced by Defendants.”  The Defendants’ response is sufficient.  They have identified the documents they intend to rely upon to prove their affirmative defenses—nothing more is required.  Further, the Defendants’ supplemental responses to Form Interrogatories 9.1 and 9.2 are sufficient.  Moreover, having reviewed the supplemental responses to the Request for Admissions, it appears that the responses are code compliant.

 

Accordingly, the Plaintiff’s motion is denied except as to those issues that require further response by agreement of the parties, to wit, amended responses to Form Interrogatory 17.1 (as to Request for Admissions Nos. 29 and 38 from Craig Sterling and as to Request for Admissions No. 28 from Eric Sterling due July 22, 2016), and the provision of a privilege log as to Defendants’ objections to the Requests for Production of Documents (due August 2, 2016).

 

As for sanctions, both parties have been very active in filing discovery motions. The court denies sanctions.

 

 

5.  SCV-257666, Martin v. Nissan North America, Inc.

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

 

 

6.  SCV-258462, Lansdown v. Bayview Loan Servicing, LLC

This is on calendar for Defendant Bayview Loan Servicing, LLC’s demurrer to the Plaintiff’s complaint.  The Plaintiff has filed a document entitled “Non-Opposition to Defendants’ Demurrer to the Complaint and Plaintiff’s Intent to File First Amended Complaint.”

 

The court notes that Plaintiff only has a right to amend the complaint once up to the time the opposition to the demurrer is due—i.e., nine court days before the hearing on the demurrer.  (Code of Civ. Proc. § 472.)  Plaintiff may amend the complaint after the deadline for filing an opposition to the demurrer if the parties so stipulate.  (Code of Civ. Proc. § 472.)  The Plaintiff has not indicated that she has come to an agreement with the Defendant regarding a late filed amended complaint.

 

Moreover, the Plaintiff’s “non-opposition” is devoid of any discussion of how she intends to cure the defects in her complaint.  It is not up to the court to figure out how the complaint can be amended to state a cause of action.  Rather, the burden is on plaintiff to show in what manner he or she can amend the complaint, and how that amendment will change the legal effect of the pleading.  (Medina v. Safe-Guard Products (2008) 164 Cal.App.4th 105, 112, fn. 8; Heritage Pac. Fin'l, LLC v. Monroy (2013) 215 Cal.App.4th 972, 994.)

 

Accordingly, the demurrer is sustained.  The court will invite the Plaintiff to appear at the hearing to provide the court with the proposed amendments that she claims will cure the defects to the complaint, which were cited in the demurrer, but not opposed by the Plaintiff.  On a showing that the complaint may be amended, the court will be inclined to sustain the demurrer with leave to amend.

 

Further argument on the preliminary injunction previously continued to July 20, is CONTINUED to Wed., Aug. 10, 2016 at 3:00 p.m. to be heard by Judge Shaffer.

 

 

7.  SCV-258543, Zachau v. Saucerman

Defendants Gary Saucerman and Deanne Saucerman’s Motion to Transfer Action Based Upon Improper Venue is granted.  The action shall be transferred to the Superior Court of San Luis Obispo County.

 

Defendants’ counsel shall submit a final order consistent with this tentative ruling and in compliance with Rule of Court 3.1312.

 

 

8.  SCV-258906, In Re D Ward

The Amended Petition for Approval of Transfer of Structured Settlement Payment Rights by J.G. Wentworth Originations, LLC is granted.

 

 

9.  SCV-258909, In Re Ariana P

The Amended Petition for Approval of Transfer of Structured Settlement Payment Rights by J.G. Wentworth Originations, LLC is denied. 

 

In 2009, respondent payee Arianna P. (“Payee”) entered into a settlement of a personal injury suit.  The settlement agreement entitled Payee’s guardian to receive monthly payments of $350 for 19 months (total $6,650), beginning September 16, 2009 through March 16, 2011.  The settlement agreement also entitled Payee to directly receive monthly payments of $1,000 for 84 months ($84,000), beginning April 16, 2011 through March 16, 2018 and a single lump sum payment of $112,267.33 on April 16, 2018 (total $196,256.33).  The payments were to be made pursuant to an annuity purchased from Prudential Insurance Company of America.

 

The present Amended Petition involves the proposed transfer of future payments totaling $50,000 due on April 16, 2018, in exchange for an immediate payment of $32,752.50.  The future payment has a discounted present value of $48,334.39, calculated by applying a discount rate of 1.80%.  The $32,752.50 payment is calculated from the present value using a discount rate of 24.95% from the present value.  The $32,752.50 represents 67.80% of the estimated present value.   

 

However, the Amended Petition fails to provide necessary information, including the amounts and sources of monthly income and financial resources currently available to the Payee and fails to provide information regarding the purpose of the proposed transfer, as required by Insurance Code section 10139.5.  Furthermore, the proposed agreement includes an exceptionally expensive transfer and an unreasonably high discount rate of 24.95%.  Thus, the proposed agreement does not appear to be fair, reasonable, or in the best interest of the Payee. 

© 2016 Superior Court of Sonoma County