Jan 28, 2015



Wednesday, JANUARY 28, 2015, 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,  January 27, 2015 Parties in small claims cases and motions for claims of exemption are exempt from this requirement

1. MCV-211549; Cavalry v. Oneal

Appearance required.



2. MCV-225643; Collectronics v. Guizar

Appearance required.



3. MCV-228960; Piotrkowski v. Hickman

Appearance required.



4. SCV-253343; GMAC v. E*Trade

Plaintiff’s Motion to Substitute Plaintiff and for Leave to File First Amended Complaint is granted.


It is in the interest of justice and of judicial efficiency to allow the proposed amendment to name the proper plaintiff, to add a cause of action for specific performance against Defendant Sylvain  Barrielle, and to allow the proper factual background to be alleged so that Plaintiff can adequately prosecute its causes of action against Defendants.


The proposed First Amended Complaint will not result in any prejudice to the Defendants. The substitution of HSBC Bank USA, National Association as Trustee for Deutsche Alt-A Securities Mortgage Loan Trust, Series 2007-OA5 (hereinafter “HSBC”) for GMAC Mortgage LLC as the Plaintiff merely substitutes the real party in interest, i.e., the current owner of the subject mortgage.  The quiet title, reformation, and declaratory relief causes of action are not materially affected by the substitution of the Plaintiff.  The amendments adding the fourth cause of action for specific performance pursuant to the loan agreements seeks the same relief, in essence, as the  existing causes of action (hereinafter “COA”).



5. SCV-255256; Mazzaferro v. Mazzaferri

The Motion to Withdraw as Attorney of Record is granted.


Appearance required to discuss potential effect of the Notice of Stay filed 1/22/15.



6. SCV-255477; Doe v. Rio Lindo Adventist Academy

Defendant’s demurrer to the First and Second Causes of Action for Sexual Assault and Battery is sustained with leave to amend.


The demurrer to the Fifth Cause of Action for Intentional Infliction of Emotional Distress is overruled as the facts as plead are sufficient to constitute a cause of action.


Defendant’s Motion to Strike is granted, in toto, without prejudice.


7. SCV-256086; Anabi v. Petersen

First Cause of Action for Breach of Contract


The Complaint alleges that a valid contract exists (and Defendant does not dispute that a valid contract exists).  (Complaint, ¶¶12-15).  Plaintiff pled that it exercised its various options and obligations pursuant to the contracts between the parties.  (Complaint, ¶¶16, 18, 24). Plaintiff pled that Defendant acknowledged that the Plaintiff validly exercised its options. (Complaint, ¶17).  Plaintiff has properly pled that Defendants have breached said contracts (Complaint, ¶¶19-22, 25-26) and that Plaintiff has been injured by the Defendants’ breach. (Complaint, ¶27).


The satisfaction of the contract conditions may be pled generally—“the Plaintiff has performed all conditions on its part.” CCP §457; Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1390.


A written contract can be pleaded by attaching a copy to the complaint and incorporating same by reference.  Davies v. Sallie Mae, Inc. (2008) 168 Cal.App.4th 1086, 1091.  In this instance, the Plaintiff did both, attach the contracts (Exhibits “A”-“F”) and pleaded the contracts and the provisions breached in haec verba (Complaint, ¶25).  Construction Protective Services, Inc. v. TIG Specialty Insurance Company (2002) 29 Cal.4th 189, 198-199.


The demurrer to the First Cause of Action is overruled.


The Second and Third Cause of Action for Equitable Relief and Specific Performance


Defendant demurrers to the Second and Third Cause of Action solely on the grounds that these causes of action are derivative of the First Cause of Action, which Defendant incorrectly contends is subject to demurrer.  Because the Complaint pleads sufficient facts to constitute a cause of action for breach of contract, the Demurrer to the Second and Third Cause of Action must also be overruled.




Defendant’s demurrer to First, Second and Third Causes of Action Contained in Plaintiff’s complaint is overruled in its entirety.



8. SCV-256222; Withrow v. Echelon

Motion for Preference is granted. There can be little argument that CCP section 36 was enacted for the purpose of assuring that an aged or terminally ill plaintiff would be able to participate in the trial of his or her case and be able to realize redress upon the claim asserted. Such a preference is not only necessary to assure a party's peace of mind that he or she will live to see a particular dispute brought to resolution but it can also have substantive consequences. The party's presence and ability to testify in person and/or assist counsel may be critical to success. In addition, the nature of the ultimate recovery can be adversely affected by a plaintiff's death prior to judgment.


Thus, while Plaintiff is not terminally ill, she does meet the requirements of Section 36(a), and is entitled to trial preference, because she is over the age of 70 and has medical conditions which make preference necessary to prevent the prejudice that would arise should Plaintiff’s medical conditions advance to the state that she does not survive until, or cannot meaningfully participate in, a normally set trial date.


Pursuant to CCP §36(f), Plaintiff is entitled to a preferential setting, which shall be “not more than 120 days from the date” of the granting of this application.



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