Jul 07, 2015

Wednesday, July 1, 2015, 3:00 p.m.
Courtroom 17 –  Hon. Gary Nadler
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 Judge Nadler’s Judicial Assistant by telephone at (707) 521-6725, and all other opposing parties of your intent to appear by 4:00 p.m. today, Tuesday, June 30, 2015. Parties in small claims cases and motions for claims of exemption are exempt from this requirement.





1.  MCV-227527, Creditors Trade Association, Inc. v. Naughty Biscotti, Inc.

Plaintiff’s application for order to show cause why Defendant should not be held in contempt is granted.


Pursuant to Code of Civil Procedure section 1209, the court hereby orders Defendants Naughty Biscotti, Inc. and Pamela N. Fredrickson to appear on Wed., Aug. 5, 2015, at 3:00 p.m. in Courtroom 17 and to show cause why they should not be found in contempt of court for failure to comply with the order of court dated December 5, 2014. This order to show cause must be served on Defendants in the manner required for service of summons and complaint.



2.  MCV-231171, Collectronics, Inc. v. Suarez

Plaintiff’s application for order to show cause why Defendant should not be held in contempt is dropped for failure of movant to file a proof of service.



3.  MCV-232556, Collectronics, Inc. v. Hogan

Plaintiff’s motion to compel answers is granted. Sanctions in the amount of $690 are awarded to the moving party.



4.  SCV-253987, Doe v. Doe

Defendant Mid-Century Insurance Company’s demurrer is sustained without leave to amend.


The court notes that under Probate Code section 552, Plaintiff may properly serve on the insurer of Decedent Joan Skidmore the summons and complaint asserting a cause of action against Joan Skidmore, but this does not support a cause of action against the insurer, Mid-Century Insurance Company.  No allegations indicate that Plaintiff may have a valid cause of action directly against the insurer unless, and until, she obtains a judgment against the insured which is covered by the insurer.



5.  SCV-255350, Rivers v. Veolia Transportation Services, Inc.

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



6.  SCV-255892, De La Riva v. Kaiser Foundation

Defendants’ demurrer to first amended complaint is sustained with leave to amend as to the cause of action for dependent-adult abuse because Plaintiff fails to allege that he is or was a dependent adult within the meaning of the statute.  The demurrer is overruled as to intentional infliction of emotional distress as this cause of action appears to be based not on only the criticism but also the alleged treatment of Plaintiff which, as alleged, may constitute extreme and outrageous conduct in reckless and callous disregard for Plaintiff’s safety.


The motion to strike is granted, with leave to amend, as to the allegations and remedies for dependent-adult abuse. Plaintiff does not plead that he fell within these provisions as a dependent adult. The motion to strike is also granted as to the allegations concerning punitive damages for intentional infliction of emotional distress; Plaintiff has not sought court leave to seek such remedies in accord with Code of Civil Procedure section 425.13.


Requests for judicial notice are granted.


Plaintiff has leave to amend within 20 days of the service of the notice of entry of this order.  Defendant is to serve the notice of entry of this order within 5 days of this order.



7.  SCV-256168, Matteri v. Shear Builders, Inc.

Cross-Defendant Shear Builders, Inc.’s demurrer is overruled. It is not clear whether the conditions allowing or barring indemnification under the statutes or bylaws will occur, making it possible that Plaintiff/Cross-Defendant/Cross-Complainant Ron Matteri may be able to prevail and may be found to have breached no duty or engaged in any other wrongful conduct which would bar indemnification.  The fact that the underlying lawsuits have not yet been concluded does not appear to the court to bar the claims. Shear Builders, Inc. (“SBI”) has leave to amend within 20 days of the service of the notice of entry of this order.  Defendant is to serve the notice of entry of this order within 5 days of this order.


SBI’s requests for judicial notice are granted.


The court grants Plaintiff’s motion for an order to enforce statutory inspection rights. Plaintiff seeks corporate records under Corporations Code section 1603.  A petition for writ of mandate has been recognized as the proper method for a shareholder to enforce this right.  Johnson v. Langdon (1902) 135 Cal. 624, 625-628; Webster v. Bartlett Estate Co. (1917) 35 Cal.App.238.  As long as the petitioner shows a reasonable relation to the interest as a shareholder, and no-one provides evidence showing an ulterior, improper motive, then the court should grant the petition.  Gilmore v. Emsco Derrick & Equipment Co. (1937) 22 Cal.App.2d 64, 67.  However, the statute is silent on how a party may ask the court to order an inspection.  It does not mention a writ of mandate, motion or other pleading. 


Plaintiff alleges that he is entitled to inspect records as both a shareholder and director.  Cross-Complaint, ¶¶ 2-6.  Plaintiff thus, as director, has an absolute right to inspect all records at a reasonable time and as a shareholder has an absolute right to inspect at least some records not falling within attorney-client privilege or the like.  SBI argues that Plaintiff seeks the records to compete or for other improper purposes.  This is irrelevant, however, since Plaintiff is absolutely entitled to inspect the records as a result of his status.


SBI argues that Plaintiff lacks the right to obtain all records under Havlicek but there the court only limited a director’s right where the director openly and unequivocally states that the director wants to obtain the information in order to compete with the corporation.  That has not happened here, despite SBI’s claim that that is what Plaintiff is doing.  Moreover, as noted above, Havlicek stated that where the corporation claims that circumstances warrant preventing or limiting the inspection, such as director intent to compete, the corporation bears the burden of demonstrating this with evidence.  SBI has not done so.


SBI also argues that Plaintiff cannot obtain records under Tritek because he has filed a lawsuit against the corporation but, as explained above and as Plaintiff now argues, Tritek only states that in such circumstances the director is not entitled to information protected by the attorney-client privilege in documents generated in defense of the lawsuit which the shareholder/director has brought. 


Plaintiff argues that requiring a petition for writ of mandate, as compared with a motion, would not make sense where there is already an ongoing lawsuit. The court agrees with this argument, as such a distinction here would essentially be elevating form over substance.  


SBI also notes that under section 1603 the court may appoint inspectors or accountants.  The court determines that there is an insufficient showing of good cause to justify this, and as such, the court does not order appointment at this time.





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