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Law and Motion Calendar
Wednesday, May 22, 2013, 3:00 p.m.
Courtroom 16 -- Hon. Elliot Lee Daum
3035 Cleveland Avenue, Suite 200, Santa Rosa
1. MCV-221830, Glaubiger v. Vollert
2. MCV-222789, Creditors Trade Association v. Ramos
Plaintiff’s unopposed motion to compel answers to post judgment discovery and for award of monetary sanctions is granted. Sanctions of $600 plus $90 costs are awarded moving party.
3. SCV-249518, Duncan v. Price
4. SCV-249794, Robertson v. Goldgruber
DROPPED at the request of counsel for moving parties.
5. SCV-251056, Wells Fargo Bank, NA v. Tracey
Cross-Defendants’ demurrer to Cross-Complainants’ first through fifth causes of action is sustained. The cross-complaint is fatally defective. Accordingly, the court sustain Cross-Defendants’ demurrer to the first through fifth causes of action of the cross-complaint without leave to amend.
Nowhere in the Land Purchase Agreement did the Cross-Defendants agree to subordinate their deed of trust to Plaintiff Wells Fargo Bank. Cross-Complainants fail to allege or attach any written agreement by and between the parties wherein the Cross-Defendants agreed as such. Cross-Complainants fail to and cannot specify with particularity where in the Land Purchase Agreement the Cross-Defendants made such an agreement. The Land Purchase Agreement simply indicates that the purchase of the land at issue will be based upon two loans: one loan in the amount of $210,000, and the other loan in the amount of $140,000 to be carried by the Cross-Defendants. The Land Purchase Agreement does not address the issue of recording or order of recording with respect to the related loans and their deeds of trust. More particularly, the Land Purchase Agreement does not require the Cross-Defendants to maintain a subordinate deed of trust. The Land Purchase Agreement cannot and should not be interpreted to require the Cross-Defendants to do so.
Additionally, the above causes of action are subject to the statute of frauds. The facts as alleged in the cross-complaint are not legally sufficient to estop Cross-Defendants’ demurrer on this issue by taking the agreement out of the statute of frauds. The cross-complaint alleges that Cross-Defendants have been “paid $210,000 of the $350,000 purchase price.” (Second Amended Cross-Complaint, ¶ 8.) However, “[b]efore a party can be estopped to assert the statute [of frauds] due to the other’s part performance, it must appear that a sufficient change of position has occurred so that the application of the statutory bar would result in unjust and unconscionable loss, amounting in effect to a fraud … The payment of money is not ‘sufficient part performance to take an oral agreement out of the statute of frauds’, for the party paying money ‘under an invalid contract … has an adequate remedy at law.’” Secrest v. Sec. Nat’l Mortgage Loan Trust 2002-2 (2008) 167 Cal.App. 4th 544, 555 (emphasis added). Thus, payment made to Cross-Defendants does not constitute part performance that will take an oral agreement outside of the statute of frauds.
Civ. Code § 1698(b) does not apply in that the parties did not fully execute the alleged oral agreement modification. Cross-Complainants allege an oral agreement by and between the parties wherein Cross-Defendants would subordinate their deed of trust to Plaintiff Wells Fargo Bank’s deed of trust. The Cross-Defendants did not do so. As such, the parties did not execute the alleged oral agreement modification. In that there is no full execution by the parties, the statute of fraud execution under Civil Code § 1698(b) does not apply.
6. SCV-251098, Aguiar v. America’s Servicing Company
CONTINUED to 6/26/13, 3:00 p.m. per stipulation and order.
7. SCV-251746, Savin v. Bank of America, N.A.
The general demurrers to each of Plaintiff’s nine causes of action are sustained. CCP §430.10(e). No further amendment will cure the deficiencies in Plaintiff’s claims. As such, Plaintiff’s Second Amended Complaint is dismissed.
Defendants' Request for Judicial Notice is granted.
Plaintiff’s Request for Judicial Notice is granted.
8. SCV-252436, County of Sonoma v. Cats 4 U
DROPPED as motion for change of venue was granted 4/24/13.
9. SCV-252874, Leoni v. Noble
DROPPED at the request of counsel for moving party.
10. SCV-253041, Clausen v. City of Santa Rosa
Plaintiff’s motion for preliminary injunction is denied.