Feb 09, 2016




Wednesday, February 10, 2016, 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, February 9, 2016.   Parties in small claims cases and motions for claims of exemption are exempt from this requirement.



1.  MSC-184678, King v. Tankersly

Appearances required.  



2.  SCV-254073, Lewis v. Vintage Greens Company, Inc.

Cross-Defendant JLP Landscape Contracting, Inc.’s unopposed motion for good faith settlement is granted.


Movant presents a rough approximation of the total recovery and settlor’s proportionate liability.  There is evidence regarding its proportionate share of liability since it did only landscaping, specifically installing sod and irrigation systems, and was not involved in the design or construction of any buildings or the geotechnical studies of the grounds, or any concrete or hardscaping for the yards or the soil compaction work.  The defects of which Plaintiffs complain are almost all specifically in the design and construction of buildings, with no bearing whatsoever on issues related to the landscaping.  These almost all involve defects that allegedly allow water intrusion and buildup of excessive moisture but they include defective exterior doors and windows, roofs, chimneys, and ventilation components, sewers, bathroom and other tile work, retaining walls, foundations, decks, and patios.  The only issues that could relate to landscaping and irrigation work are two points regarding improper soil and compaction for the building pressures and defective landscaping, specifically hardscaping, paths, and irrigation that could lead to moisture buildup in the buildings.  Of the latter, even some of these, such as the hardscaping and soil-compaction issues are apparently unrelated to JLP’s work. 


With respect to the amount paid and recognition that settlor should pay less in settlement, JLP has agreed to pay $7,000.  Due to the limited involvement of JLP, there is a sufficient showing that this amount is reasonable.


With regard to allocation, this factor is not significant since JLP does appear only to have worked landscaping sod and irrigation.



3.  SCV-254756, Doolan v. Chong

DROPPED from calendar at the request of all counsel.



4.  SCV-255892, De la Riva v. Kaiser Foundation Health Plan, Inc.

Defendants’ motion to compel further responses to request No. 2 of Defendants’ first set of request for production of documents is granted.  It appears that only one item has been withheld subject to objection.  Specifically, this consists of four pages of notes which are under the custody control of Plaintiff, although written by Plaintiff’s partner, “Dennis.”  Plaintiff is not married to Dennis, nor is he in a registered interest in partnership with Plaintiff.  There is an insufficient showing of a confidential marital communication which would protect disclosure.  Plaintiff does object on the basis of privacy.  The court here evaluates the discovery sought pursuant to the privacy objection asserted.  It appears that the discovery in question is directly relevant to the issues presented in this case.  Although it is asserted that the notes have to do with communications between Plaintiff and his partner concerning the process of filming a documentary, the notes mention treatment issues with respect to the toe which is the subject of this litigation.  The subject notes concern treatment of the wound allegedly caused by malpractice; damages which Plaintiff alleges occurred as a result of the malpractice; and the issue of general damages related to the “pain and suffering” of Plaintiff.  Clearly, notes which are written about Plaintiff’s physical condition during the postoperative period following the alleged malpractice are reasonably calculated to lead to admissible evidence, or may itself be admissible.  The privacy right, to the extent one does exist, is slight in relation to the probative value of the notes, given that such evidence is directly relevant to the issues presented in a lawsuit.


Based upon the foregoing, and since no request for protective order is sought, the court grants the motion to compel.


With regard to the issue of sanctions, the court determines that given the nature of the withheld discovery, it would be unjust to award sanctions to the moving party.  As such, the court determines that sanctions will not be awarded given the circumstances here presented.


Defendants’ motion for order providing clarification is granted.  The sanctions imposed by the court were in response to the specific sanctions request.  That request was directed solely as to Plaintiff’s counsel.  As such, the sanctions award is not directed to the Plaintiff, but only counsel for Plaintiff.  



5.  SCV-256442, Barnett v. Shari’s Management Corp.

Defendants’ motion for judgment on the pleadings is denied.


The cause of action for fraud sufficiently and specifically sets forth a specified misrepresentation, the facts of its falsity, how it induced reliance, and how it led to injury.  It, in any case, is also at least a valid cause of action for negligence or premises liability.  A motion for judgment on the pleadings is on the same grounds as a demurrer for failure to state facts sufficient to constitute a cause of action, which must fail if the allegations set forth any valid cause of action.  Quelimane Co., Inc. v. Steward Title Guar. Co. (1998) 19 Cal.4th 26, 38; Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.  The request to strike the punitive damages is improper on a motion for judgment on the pleadings, Defendants did not bring a motion to strike, and the time for bringing such a motion under Code of Civil Procedure section 435 has expired.  Even if the court were to consider the ability to exercise its discretion to consider striking pleadings under Code of Civil Procedure section 436, it finds inadequate basis to do so in this case and the punitive damages are in any case proper as long as the fraud cause of action is at issue.



6.  SCV-256782, Avalos v. Redwood Hill Farm and Creamery, Inc.

Plaintiff’s motion to compel compliance with demand for inspection of electronic information is denied without prejudice.


The motion appears to seek unfettered access to the Defendant’s hard drives and computer information.  There is a description by Ms. Clipner of a one hour meet and confer.  However, a substantial privilege log has since been provided.  The court will require the parties to reasonably meet and confer, in order to better determine what documents, if any, are sought over objection.  The court further indicates that, absent efforts reasonably made to attempt resolution of the issues presented in this motion, it will not allow the sort of inspection sought by the discovery request as it is overbroad.



7.  SCV-256889, Bucher v. Bucher

The requests for judicial notice filed by the parties are granted.


The demurrer is overruled.


As with the other Defendants’ demurrer, the demurrer for another action pending is unpersuasive because this action and the related action are not on the same cause of action.   Although the parties are basically the same, and the events and facts are clearly related and intertwined, the related action is a shareholder derivative action solely by Plaintiffs Tim and Heidi as shareholders technically on behalf of the Dairy.  This action is solely and directly on behalf of Tim personally and it also is on behalf of Trattore, not a party to the related action and with no direct interest in the related action or the cause of action presented therein. 


Just as this court explained in the prior demurrer, the third cause of action in this case is asserted on behalf of Plaintiff Tim personally as a shareholder, not as a shareholder in the name of the corporation Dairy, and it is appropriate to bring this claim in Tim’s personal capacity as a shareholder under Corporations Code section 304.


A derivative action, such as the related action, is one pursuant to Corporations Code section 800.  As to this statute, courts have made it clear that directors owe a duty to both the corporation and the shareholders and that, aside from derivative actions under section 800, “judicial power to remove [directors] exists independent of statute.”  Brown v. North Ventura Road Development Co. (1963) 216 Cal.App.2d 227; DeGarmo v. Goldman (1942) 19 Cal.2d 755.


An action is derivative, i.e. in the corporate right, if the gravamen of the complaint is injury to the corporation, or to the whole body of its stock or property without any severance or distribution among individual holders, or if it seeks to recover assets for the corporation or to prevent the dissipation of its assets.  This is precisely what this lawsuit is not about.  Plaintiffs are suing for personal wrongs to them.  They are suing in this action for fraud and related wrongs surrounding John allegedly fraudulently inducing Tim to agree to a loss of rights in the control of the Dairy, and to agreeing to not use the Bucher name before the Dairy then branded it and gave it to Defendants. 


Plaintiffs shall prepare and serve a proposed order within five days of the date set for argument of this matter.   Opposing counsel shall inform the preparing counsel of objections as to form, if any, or whether the form of order is approved, within five days of receipt of the proposed order.  The preparing party shall submit the proposed order and any objections to the court pursuant to California Rules of Court, Rule 3.1312.



8.  SCV-256983, Parks Diversified, LP v. Ray’s Well Testing Service, Inc.

DROPPED from calendar pursuant to the Demurrer Facilitator’s Report filed 2/5/16.



9.  SCV-257379, Department of Fair Employment and Housing v. City of Santa Rosa

DROPPED from calendar at the request of counsel for moving party; first amended complaint filed 1/27/16.



10.  SCV-258033, McCarn v. Wells Fargo Bank

CONTINUED to 4/27/16, 3:00 p.m., pursuant to the stipulation and order filed 1/26/16.



11.  SCV-258139, McLain v. Kissler

Defendants’ motion to expunge lis pendens is granted. 


A lawsuit which is aimed at setting aside a fraudulent conveyance of real property is a “real-property claim” that will support a lis pendens.  Kirkeby v. Sup. Ct. (2004) 33 Cal.4th 642, 649.  However, Plaintiffs neither allege nor provide any evidence supporting such a claim to set aside a fraudulent conveyance.  They only allege that Kissler has listed the property for sale on the market, nothing more.  Merely selling property in of itself is insufficient to constitute a fraudulent transfer under the Uniform Fraudulent Transfer Act.  They also provide no evidence at all regarding the alleged transfer or sale.




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