Jul 29, 2016



WEDNESDAY, JULY 27, 2016, 3:00 P.M.

Courtroom 16 – Hon. Knoel Owen for the 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) 521-6725 by 4:00 p.m. today, Tuesday, July 26, 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-214287, Capital One Bank v. Comadauran

Appearance required.



2.  MCV-236317, Portfolio Recovery Associates, LLC v. Wendel

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



3.  SCV-170175, Jimenez v. Meadow Oaks Development Co.

Pursuant to the disqualification filed as to Judge Owen, this matter is continued to the Law & Motion calendar of Wed., Aug. 31, 2016, at 3:00 p.m. in Courtroom 16 before Judge Shaffer.



4.  SCV-252078, Knight v. Shulman

The motion to tax costs is moot.  While Defendants served the memorandum of costs on Plaintiff, it was not filed with the court.



5.  SCV-255993, Thomas v. Peak Foreclosure Services, Inc.

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



6.  SCV-256116, Myers v. Santa Rosa Memorial Hospital

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



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

Defendants’ motion for leave to file cross-complaint is granted.  The pleading proposed has the elements of a compulsory cross-complaint.  While arguably pertinent to the issue of bad faith, claim viability arguments of the Plaintiff are not germane to a determination of whether the cross-complaint is permissive or compulsory.


The Defendants’ current attorney’s declaration satisfactorily overcomes Plaintiff’s arguments related to bad faith.


The proposed cross-complaint is to be filed and served within 15 days of this order.



8.  SCV-257183, AMCO Insurance Company v. Marizco Landscape Management, Inc.

Defendants Jose Gomez, Marizco Landscape Management, Inc. and Jose Martinez’s motion for summary judgment and/or summary adjudication is denied.  Defendants have not met their burden.  Considering all admissible evidence submitted, there is a reasonable inference that Defendants are liable for the fire.  Defendants’ own evidence places their employees and weed whackers at the scene of the fire when it started thus raising a triable issue of fact.  Additionally, while AMCO is no longer a party to the litigation, the court may properly consider the evidence submitted by AMCO which also places Defendants at the scene when the fire started with machinery which could reasonably be found to be the cause of ignition.


Defendants’ evidentiary objections to Plaintiff Wand’s evidence are sustained.  However, the Court must rule based on “all of the evidence set forth in the papers” (Code of Civ. Proc. § 437c(c); see also Villa v. McFarren (1995) 35 Cal.App.4th 733, 749.) that includes AMCO’s evidence which was not objected to by the Defendants.



9.  SCV-257467, Immanuel Baptist Church of Santa Rosa v. Tonks

Defendants Tonks’ demurrer to the first amended complaint is sustained in part and overruled in part.  Defendants’ request for judicial notice is granted as to No. 1 (Exhibit A).  Defendants’ request is denied as to Nos. 2-18 (Exhibits B-R).  Exhibits B, J-K do not qualify under Evidence Code section 352(h) and they are not helpful/relevant to this demurrer.  The balance of exhibits require the Court to draw factual inferences to reach Defendants’ conclusions.  That is beyond the scope of a demurrer.


Defendants’ demurrer for lack of standing is sustained with leave to amend as to Plaintiff, Tree of Life Fellowship only. 


Demurrer to the first cause of action for breach of fiduciary duty is sustained without leave to amend as to Mrs. Tonks and overruled as to Mr. Tonks. 


Demurrer to the second cause of action for fraud as to all Defendants is sustained with leave to amend.  Plaintiffs have not pled this cause of action with the required specificity against either Defendant.


Demurrers to the third cause of action for concealment and the fourth cause of action for constructive trust are sustained with leave to amend.  Plaintiffs may amend to include a “constructive trust” in its prayer for damages.


Demurrers to the fifth cause of action for declaratory relief is overruled.


Plaintiffs shall file a second amended complaint consistent with this order within 10 days from the final order.  Defendants shall submit a final order consistent with this ruling and in compliance with Rule of Court, Rule 3.1312. 

© 2016 Superior Court of Sonoma County