Oct 21, 2014



Wednesday, October 15, 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, October 14, 2014.  Parties in small claims cases and motions for claims of exemption are exempt from this requirement

1. MCV-192787; Resurgence Financial v. Kim

Appearance required. [Claim of Exemption]



2. SCV-253404; Berens v. Santa Rosa Plaza

The Motion for Separate Trials is denied.



3. SCV-253926; Bigham v. City of Santa Rosa

The demurrer is sustained without leave to amend to the second cause of action for general negligence.


The demurrer is overruled as to Plaintiff’s third cause of action for Government Tort Liability (“dangerous condition”.)


Second COA-- General Negligence


Plaintiff cannot plead negligence claims versus CITY whether styled “General Negligence”; “Premises Liability-Negligence” or “Premises Liability; Willful Failure to Warn”.  The proper and sole direct liability allegations that can be made by a Plaintiff against a public entity such as CITY for deficiencies in public improvements are “dangerous condition” allegations grounded in statute.  Common law concepts of “negligence”, “willfulness” and “malice” are legally irrelevant as to public entity liability.  Accordingly, amendment would be futile.


The court sustains the demurrer to the second cause of action without leave to amend.              


In this instance, the First Amended Complaint alleges that the violations, via wrongful acts and/or omissions consisted of Defendants’ failure to install and/or maintain the necessary traffic signs, signals, lights or other markings to effectively regulate and control the traffic flow within the subject intersection for the protection of the public health, safety and general welfare as required under Government Code sections 830, 830.2 and 835; California Vehicle Code sections 21351 and 21354; and Santa Rosa City Code section 21-04-03.  (First Amended Complaint 4th COA ¶4.)  These statutes and/or codes consist of powers to initiate or implement safety provisions that have either been authorized by the State Legislature or voluntarily adopted by the City.  Said statutes or codes provide the City with the power and charge the City with a duty/obligation to take the authorized actions for the protection of the public health, safety and general welfare.


Plaintiff has pled statutory violations with the requisite specificity discussed in Searcy and Mittenhuber.  Accordingly the demurrer is overruled as to count III.



4. SCV-254379; Gavriloff v. Hanley

The Defendant’s demurrer to the Third Amended Complaint and the Third and Fourth Causes of Action for Abuse of Process is sustained without leave to amend.


Defendant’s Motion to Strike Plaintiff’s prayer for punitive damages is granted, with prejudice.



5. SCV-256003; Howshar v. Bank of America

The Order to Show Cause re: Preliminary Injunction is continued for further briefing to October 29, 2014 at 3:00 p.m. in Department #16.  Plaintiffs shall file any further response to Defendant’s Reply Brief filed October 9, 2014 by 5:00 p.m. October 21, 2014.



6. SCV-256115; Sonoma v. Dayan

The requested preliminary injunction is granted without a bond.


© 2014 Superior Court of Sonoma County