May 23, 2017

TENTATIVE RULINGS

LAW & MOTION CALENDAR

Wednesday, May 17, 2017, 3:00 p.m.

Courtroom 17 – Hon. Peter Ottenweller

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 Ottenweller’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, May 16, 2017.  Parties in small claims cases and motions for claims of exemption are exempt from this requirement.

 

 


      1.     MCV 234234 Portfolio v. Mulligan:

The Motion is granted.  Plaintiff is to prepare a proposed judgment and deliver it to Department 17 chambers,

 

2.     SCV 258526 Cline Cellars v. Burr:

Motion to Compel is granted.  Plaintiffs shall pay Defendants $3,260 in Sanctions.  Plaintiff failed to make diligent and reasonable search efforts.  Although they may have since cured this problem, wholly or mostly, it seems clear from their deposition responses that they initially made inadequate efforts to search for the requested documents, despite promises to produce them.

Where the responding party agrees to produce documents, but then fails to do so, the party seeking discovery may move to compel production of the promised documents.  CCP section 2031.320.  As with a motion to compel for failure to respond, there is no deadline and no meet-and-confer requirement.  Ibid.  The moving party must merely show that the responding party failed to comply as agreed.  CCP section 2031.320(a); see also Standon Co., Inc. v. Sup.Ct. (1990) 225 Cal.App.3d 898, 903.

The responses to production request set 2 are not verified.  They contain objections, which do not need verification but instead require the attorney’s signature, but they also contain an agreement to produce all non-privileged items, a substantive response that does require verification by the party.  CCP § 2031.250.   Where a response is unverified, the response is ineffective and is the equivalent of no response at all.  See Appleton v Sup.Ct.  (1988) 206 Cal.App.3d 632, 636.  Technically, where a party has failed to respond on time to a request for production, the first step is not to compel production but, as with interrogatories, to compel a response.  CCP § 2031.300.

A party has a duty to provide “complete” responses and to make them as straightforward as possible.  CCP sections 2030.220; 2031.210-2031.230.  Requests must be answered to the extent possible.  Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783.  A responding party also has a duty to make a reasonable, good-faith effort to obtain the requested information and if it is unable to comply, it must state that it made a reasonable and diligent search.  CCP sections 2030.220 2031.230; Deyo, supra, 84 Cal.App.4th 783.

The deposition responses of the Clines and Plaintiff’s current and former employees, both accountant and IT, are the key to Defendant’s motion.  Defendant points out, correctly, that all of these people testified, in depo transcripts at Neuman Dec. Exs. A, B, G, and H, that they did not really search files, Nancy did no search at all and said that only Fred searched, while Fred stated that he just did a basic search of non-deleted items only in his own e-mail directory, nothing else.  He added that he routinely deletes e-mail and other documents daily, that he made no effort to retrieve or search for those, and that he did not ask an IT employee or anyone else to do so.

Plaintiff’s opposition claims, rather vaguely, that they have since “complied “ with the requests, have made efforts to search, and in fact provided, thousands of pages of documents in several boxes, etc.  

In its reply, Defendant argues that Plaintiff has still not produced, or demonstrated actual complete searches for, numerous documents.  These include payments to, and invoices and billing records from, Sharp Kemm, Plaintiff’s attorney in the tax audit; e-mails of Plaintiff’s former officer, Vladas Adams; documents on Chisolm’s operations; and the Clines e-mails.  It also contends that Plaintiff and its principals and agents admit to failing to make efforts to preserve records.

Defendant is entitled to the documents requested and Plaintiff/Cross-Defendants do not seem to dispute this, having basically promised to produce the documents and now only asserting that they have properly tried to comply.  It is not clear what exactly they have produced or the extent to which they have properly complied with their promise to produce records.

            This court-awarded sanctions consists of 10 hours at $320 per hour, to be reasonable for deposition time, meet and confer and preparing the motion, plus filing fee of $60.

Defendants are to prepare an order consistent with this tentative ruling and deliver the proposed order directly to Department 17 chambers.

            Plaintiff shall provide verifications and documents within thirty (30) days of the filing of the order in this matter.

           

3.     SCV 259264 Perry v. Bonilla:

Demurrer sustained on all causes of action, with leave to amend.  Plaintiff fails to plead any damages or injury resulting from the alleged negligence or breach of fiduciary duty, either by alleging facts showing that she would have had a more favorable outcome or in any other way.  Plaintiff’s allegations also indicate that the claims based on the alleged sexual harassment are untimely on their face.

Motion to Strike granted, with leave to amend.

Defendant is to prepare a proposed order consistent with this tentative ruling and deliver it to Department 17 chambers for signature.

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.

Requests for judicial notice granted.

 

4.     SCV 259340 Block-Savanovich v. Hudson:

Appearances are required.  The ex parte application presented on May 16, 2017 will also be addressed at this hearing.

Plaintiff’s Motion is Denied.  Sanctions denied.  Defendant is entitled to Wells Fargo Bank account information for SABA Enterprises.

The complaint alleges Plaintiff conveyed to Defendant all of her commercial properties which some or all would be reflected in the SABA Enterprises account.  These records are relevant to show the transaction history from 2012 to the present.

Defendant’s Motion Granted in part, Denied in part.  Sanctions denied.  Plaintiff is entitled to those records of Defendant’s account at BANA and Wells Fargo, which show payments to Defendant from Plaintiff, her husband or SABA Enterprises.  Plaintiff, however, has not demonstrated any basis for obtaining any additional financial information.

A party, witness, consumer, or employee may bring a motion to quash, condition, or modify a subpoena requiring attendance or production of items before a court, at trial, or a deposition.  CCP section 1987.1.  The court may also on such a motion make an order “as appropriate to protect the person from unreasonable or oppressive demands….”  Ibid.    See also CCP sections 1985.3(g), 1985.6(f).

Both sides agree that the right of privacy protects a party’s confidential finances even if the information is relevant to the litigation.  Cobb v. Sup.Ct. (1979) 99 Cal.App.3d 543, 550.  Third parties’ finances are also naturally protected.  See Valley Bank of Nevada v. Sup.Ct. (1975) 15 Cal.3d 652, 658.  In neither case, though, is the protection necessarily absolute.  See Britt v. Sup.Ct. (1978) 20 Cal.3d 844, 859-862; Solberg, Robinson, Goldberg & Bagley v. Sup.Ct. (2006) 137 Cal.App.4th 579, 595-596.  Even very personal, confidential matters may need to be disclosed if “essential to a fair determination of the lawsuit.”  Morales v. Sup.Ct. (1979) 99 Cal.App.3d 283, 288.  The right of privacy generally attaches to, and protects, a customer’s account and similar information at a bank.  Fortunato v. Sup.Ct. (2003) 114 Cal.App.4th 475, 480.

The burden thus rests on the party seeking discovery to show that it is “directly” relevant, or essential, to the lawsuit.   Britt, supra, 20 Cal.3d 859-862.  If the information can be obtained in less intrusive means, the court should not allow discovery of the private matters.  Allen v. Sup.Ct. (1984) 151 Cal.App.3d 447, 449.

The court must balance the interests, weighing the privacy right at issue against the public interest in obtaining just results.  Valley Bank of Nevada v. Sup.Ct. (1975) 15 Cal.3d 652, 657.  The court should consider 1) the purpose of the information sought; 2) the effect that disclosure will have on the parties and the trial; 3) the nature of the objections to disclosure; 4) whether the court may make an alternative order granting partial disclosure, disclosure in another form, or disclosure only if the party seeking the information undertakes certain appropriate burdens.  Valley Bank of Nevada, supra, 15 Cal.3d 658.      

The court must impose a monetary sanction on the party losing on a motion to quash unless it expressly finds that the party acted with “substantial justification.”  CCP section 2025.410(d); California Shellfish, Inc. v. United Shellfish Co. (1997) 56 Cal.App.4th 16, 25-26.

Both parties acted with substantial justification.  Sanctions requested by both parties are denied.

Each party shall submit proposed orders directly to Department 17 chambers consistent with the tentative ruling pertaining to their motion.

 

5.     SCV 259927 Gallaher v. Sonoma Media Investments:

Disclosure pursuant to CCP Section 170 et seq:  Although not specifically named in the complaint, this court is aware that Douglas Bosco previously or currently has a financial interest in Sonoma Media Investments, LLC.  Mr. Bosco is currently married to Gayle Guynup, a retired Sonoma County Superior Court judge.  Approximately 8-10 years ago, retired Judge Guynup retained me in my capacity as a private attorney to represent her adult son in two legal matters.  The son is also Mr. Bosco’s son.  Since that representation I have had no further financial connection to Mr. Bosco.  I believe I can be fair and impartial in this matter.  I also believe that because this representation occurred 8-10 years ago, a reasonable person would believe that I can be fair and impartial.

Plaintiffs’ Motion to Conduct Discovery Re Motion to Strike is Denied, without prejudice.

Filing an anti-SLAPP motion to strike automatically stays all discovery until notice of entry of the order on the motion.  CCP section 425.16(g); Britts v. Sup.Ct. (2006) 145 Cal.App.4th 1112, 1129.  The purpose is to further the policy behind the motion of allowing parties to avoid being “dragged through the courts” for exercising constitutional rights.  Paterno v. Sup.Ct. (2008) 163 Cal.App.4th 1342, 1349.

However, “[t]he court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision,” allowing a party the right to conduct limited discovery needed for opposing the motion.  CCP section 425.16(g); see Britts, supra.  The party must demonstrate “good cause” showing not only the lack of opportunity to obtain the needed evidence, but also a prima facie showing that the claim is viable.  Paterno v. Sup.Ct. (2008) 163 Cal.App.4th 1342, 1349.  For example, “plaintiffs who bring defamation actions subject to the constitutional malice standard cannot show good cause for discovery on the question of actual malice without making a prima facie showing that the defendant's published statements contain provably false factual assertions.”  Paterno, supra.  The plaintiffs must make some explanation of what additional facts they expect to discover but are not required to establish or specifically demonstrate that the discovery will lead to admissible evidence or will ultimately prove relevant.  1-800-Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568; Sipple v. Foundation for Nat’l Progress (1999) 71 Cal.App.4th 226, 247; Abatti v. Sup.Ct. (2003) 112 Cal.App.4th 39, 59, fn.7; People v. Memro (1985) 38 Cal.3d 658, 684.  The plaintiffs must also be able to provide evidence demonstrating a prima facie showing as to the elements for which discovery should not be needed.  Paterno, supra, 1349.

In Garment Workers Center v. Sup.Ct. (2004) 117 Cal.App.4th 1156, 1162-1163, the appellate court ruled it was error for the trial court to grant a motion for anti-SLAPP discovery on the issue of malice in a defamation action where the defendant asserted the complaint on its face failed to state a valid cause of action and where the falsity of the alleged statements could be determined as a matter of law, at least as a preliminary issue to allowing discovery.  The court stated  “if it appears from the SLAPP motion there are significant issues as to falsity or publication—issues which the plaintiff should be able to establish without discovery—the court should consider resolving those issues before permitting what may otherwise turn out to be unnecessary, expensive and burdensome discovery proceedings.”  (Id. at pp 1162-1163).

            Defendants shall prepare a proposed order consistent with this tentative ruling and deliver it directly to Department 17 chambers.

 

6.     SCV 260285 Sebastopol Farmers Market v. Svedise:

The Motion in this matter has been dropped by the moving party as the case has settled.

 

7.     SCV 258944 Crinella v. Crinella Properties:

The motion in this matter has been dropped from calendar by stipulation of the parties.

 

© 2017 Superior Court of Sonoma County