Dec 18, 2014

TENTATIVE RULINGS

LAW & MOTION CALENDAR

Wednesday, DECEMBER 17, 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, December 16, 2014 Parties in small claims cases and motions for claims of exemption are exempt from this requirement

 

1. MCV-230053; Collectronics v. Velasco

The Motion to Tax Costs is denied.

 

 

2. MCV-231719; Capital One v. Langord

Appearance required (Claim of Exemption).

 

 

3. MCV-232752; Molica v. St. Jospeh

There is no evidence that the parties entered into an arbitration agreement, nor does Plaintiff provide a copy of same.  In fact, Plaintiff presents no compelling evidence why the trial date of December 31, 2014 should be vacated and the matter referred to arbitration.

 

The motion is denied.

 

 

4. SCV-251845; Wolf v. Thomas

Specially Appearing Defendant Daimler AG’s Motion to Quash Service of Summons for Lack of Personal Jurisdiction is denied.  

 

Personal jurisdiction over a nonresident defendant exists where it can be shown that there is a: (1) purposeful availment by the defendant of forum benefits, (2) the controversy arises out of the defendant’s forum contacts, and (3) assertion of jurisdiction comports with fair play and substantial justice.  (Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 269.)

Defendant Daimler meets the three elements necessary for Plaintiffs to establish specific jurisdiction over Daimler in California.  First, Daimler purposefully availed itself of forum benefits by directing sales efforts of Mercedes-Benz vehicles to the United States and California.  Daimler’s contacts with California produce substantial income for the manufacturer, thereby obtaining the benefits and protection of California’s laws as a matter of commercial actuality.  Second, this wrongful death-products liability claim is directly connected to Daimler’s effort to sell Mercedes-Benz vehicles in California, as Plaintiffs have alleged that a defective Mercedes-Benz C300 Sedan manufactured and designed by Daimler caused the death of Nola Wolf after it was leased here in California through Daimler’s subsidiary and authorized dealer.  Finally, Daimler has failed to demonstrate that litigating this claim in California would offend notions of fairness or render this forum unreasonable.

 

Rulings on Objections

Defendant’s objections to two statements from the case In re Automobile Antitrust Cases I and II (2005) 135 Cal.App.4th 100 insofar as they are described as “facts” is sustained.  The court may take judicial notice of the existence of the cited cases and the court’s opinions stated therein.

 

Defendant’s Objections to the Declaration of Matthew R. Lilligren

 

Defendant objects to paragraphs two through 4 which contain Mr. Lilligren’s recitation of statements and other information he apparently viewed on “Daimler AG’s website.” (See Lilligren Decl. ¶¶2-4.)  But “[d]eclarations by moving party’s counsel as to essential facts are generally objectionable as hearsay…except where the lawyer somehow has personal knowledge of the facts.  Otherwise, the lawyer’s declarations are inadmissible hearsay.”  (Weil & Brown, California Practice Guide: Civil Procedure Before Trial §9:61 (2004), citing Star Motor Imports, Inc. v. Superior Court (1979) 88 Cal.App.3d 201, 204.)

 

While a party’s attorney may execute a declaration stating his personal knowledge of the contents of pleadings or documents on file (Id. at §9:62), that is not what Mr. Lilligren does here.  Rather, paragraphs two through four of his declaration recount statements Mr. Lilligren viewed on the Internet, and present those statements as facts within Mr. Lilligren’s personal knowledge.

 

Paragraphs two through four are objectionable as hearsay and are stricken.  The objections are sustained.

 

 

5. SCV-252119; Rufini v. Citimortgage

The court grants Plaintiff’s motion for leave to file a second amended complaint.

 Defendant’s Request for Judicial Notice of Exhibits 1-5 is granted.

6. SCV-254814; Najambadi v. Bank of America 

The demurrer of Bank of America to Plaintiff’s 3rd, 4th, 5th, 6th, 7th, 8th, 9th and 10th causes of action are sustained without leave to amend.  (CCP §430.10(e)).

 

Wells Fargo Banks Demurrer to Plaintiff’s entire second amended complaint is sustained without leave to amend.  Additionally, the demurrer to plaintiff’s 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, and 10th causes of action are sustained without leave to amend.

The demurrers to the third through tenth causes of action are sustained without leave to amend.  (CCP §430.10(e)).

 

The Defendants are to draft an order consistent with this ruling.

 

 

7. SCV-255203; Sonoma v. Bonneau’s

Parties have a right to amend their pleadings “to correct inadvertent misstatements of facts or erroneous allegations of terms.”  Berman v. Bromberg (1997) 56 Cal.App.4th 936, 945.  The purpose of the proposed amendment here is simply to clarify the identity of the insureds to whom Essex is subrogated.

 

The proposed amendment will not change the nature of the claims or defenses previously pleaded by the parties to this litigation.  The amendment will not prejudice the defendants.  Thus, the liberal judicial policy favoring amendments will prevail and leave to amend is granted.

 

 

8. SCV-256173; Hall v. Anderson

Plaintiff’s Petition for Preliminary Injunction is granted.  Defendant has no ownership interest in Roadhouse Winery and cannot claim one.  The injunctive relief Plaintiffs request seeks nothing more than to appropriately guard and protect the assets and employees of a business from harassment and possible harm.  The issuance of the injunction, will not unduly constrain Defendant.  Defendant will simply be prevented from entering onto winery property, approaching its employees, or accessing any of its confidential banking and computer information.  All twelve of Plaintiff’s objections to Defendant’s Declaration are sustained.

 

 

9. SCV-256210; In the Matter of Sonoma Mountain

The petition is granted.  Challenging member Stephanie Bullock has failed to show that under the definition of “reasonable” set forth in California law, the amendment is unreasonable.  Ms. Bullock has provided no evidence that the notices sent with the ballots misled any owners.  Nor has Ms. Bullock provided any evidence or law that Board member use of the guest parking lot should invalidate the vote or justify denial of the petition.  Finally, Ms. Bullock has failed to prove any discrepancies in the voting procedures with consequences sufficient to deny the petition.

 

 

10. SCV-256275; Rivinius v. Lee

The Motion for a Preliminary Injunction is granted with the following conditions that Defendant may:

 

1.    Use assets to pay bills and all expenses associated with the reasonable care of Defendant’s property and financial obligations.

2.    Take efforts, hire professionals, as needed, and expend funds to sell Defendant’s condominium. The proceeds, if any, are to be placed in an account in Defendant’s name or for the benefit of Defendant.

3.    Place personal property of Defendant’s into a Revocable Trust.

4.    Pay attorneys’ fees, defense costs, court and expert witness fees and costs in the defense of Lee in the present lawsuit.

5.    Pay reasonable attorneys’ fees and costs to evict and remove Ms.Chambers from Defendant’s condominium.

 

In light of the fact that Defendant’s brother Daniel, who also serves as his attorney in fact admits to having liquidated/transferred and/or sold Defendant’s personal property, Plaintiff is likely to suffer imminent harm if Defendant’s assets are liquidated, leaving Plaintiff without a monetary damages in the likelihood that he prevails at trial and is awarded monetary damages.

 

The Court requires Plaintiff to post an undertaking in the amount of $5,000.

 

 

 

© 2014 Superior Court of Sonoma County