Oct 30, 2014

TENTATIVE RULINGS
LAW & MOTION CALENDAR
Wednesday, October 22, 2014, 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, October 21, 2014. Parties in small claims cases and motions for claims of exemption are exempt from this requirement.

 


 

1. MSC-183602, Green Estate Liquidators, LLC v. McIntrye
Appearance required.


2. SCV-242484, Greater Sonoma Partnership v. B Squared, Inc.
DROPPED per stipulation and order filed 10/14/14.


3. SCV-252354, Duncan v. Stucker-Ennis
DROPPED at the request of counsel for moving party.


4. SCV-253181, Eliaz v. Meeks
DROPPED at the request of moving counsel.


5. SCV-253530, Metcalf v. Associated Insulation of California
DROPPED at the request of counsel for moving party.


6. SCV-254195, Williams v. Sansome
Defendant’s motion to compel answers is denied without prejudice. The moving party fails to demonstrate that Plaintiff provided no responses.


7. SCV-254228, McCutchan v. McCutchan
Plaintiff appears to be presenting four entirely separate matters. Upon review, the court is considerably confused as to the intent of each and struggles with the presentation.

Plaintiff filed several documents on June 4, 2014, including a “Notice of Petition for an Accounting … And for Motion to Deem Evasive Denials … Admitted, for Judgment on the Pleadings, and For Multiple Judgments.” Plaintiff also filed a separate Petition for a Verified Accounting, also calendared for October 8, 2014, and a “Motion In Limine” to preclude all evidence in opposition to the petition for accounting, set for the same date.

Plaintiff presents a “motion in limine” to bar Defendants from providing any evidence in opposition to Plaintiff’s case. He contends that Defendants have not properly responded to his discovery requests. Defendants object to this as procedurally defective and substantively groundless. As Defendants argue, this motion is utterly defective both procedurally and substantively, being, in effect, an improper motion for evidentiary sanctions that fails to comply with the procedural and substantive requirements of such a motion.

All of the statutes governing discovery, compelling discovery, and sanctions with respect to written discovery or depositions authorize terminating, issue, or evidence sanctions only in the event a party “fails to obey an order.” CCP §§ 2025.440, 2025.450, 2030.290, 2030.300, 2031.300, 2031.310, 2033.280, 2033.290. They otherwise authorize only motions to compel and monetary sanctions in the event of failure to respond or service of inadequate responses, For example, see CCP § 2030.290. This motion is defective and groundless because it is presented as a motion in limine, not a motion for sanctions under the Discovery Act, and it seeks evidentiary or terminating sanctions where there has been no failure to comply with a court discovery order. There have been no discovery motions in this matter to date, nor have Defendants failed to comply with a court order granting a motion to compel. This motion is denied.

Plaintiff moves the court to deem Defendants’ denials on information and belief to be ineffective and deemed admissions. Plaintiff contends that a defendant may not deny on information and belief facts which are presumptively in the defendant’s knowledge. This motion is denied.

Plaintiff’s motion for judgment on the pleadings is denied.

Plaintiff asks that the court make multiple judgments against the various Defendants under CCP § 579. This may be appropriate at a later time but certainly not presently. This is denied.

Plaintiff petitions the court for an accounting under Prob. Code § 17200(b)(7), arguing that the answer, again, is inadequate and providing evidence to support his claim that he is entitled to an accounting. He also asks the court to appoint a temporary fiduciary pending the litigation.

As Defendants argue, CRC, Rule 7.103(b) states that “[a]ll pleadings filed in proceedings under the Probate Code must be verified.” Apparently, the petition is not verified.

Defendants argue that under Prob. Code §§ 15800 and 16069(a), Harold owes no duty to Plaintiff because the trust is still revocable.

Defendants demonstrate that the trust is revocable, and the person holding the power to revoke the trust is still alive and not deemed incompetent. Beam Dec. In fact, Plaintiff’s allegations are inadequate anyway since they expressly admit that the trust is revocable and give no indication that, despite that, Plaintiff would be entitled to an accounting under these statutes.

The petition is denied.

Defendants object to the various declarations that were submitted in support of the multiple motions. As to each, Defendants object on the basis that the declarations do not satisfy the requirements contained in CCP § 2015.5. Donald Thorn concluded his declaration by stating, under penalty of perjury and the laws of the State of California, “that the above is true and correct to the best of [his] knowledge and belief." Defendants argue that this declaration is hearsay and was not made with personal knowledge as referenced by the above quoted portion of the declaration.

In Pelayo v. J.J. Lee Management Co., Inc. (2009) 174 Cal.App.4th 484, 494, objection was made to a declaration on the basis that it failed to comply with the requirement of CCP § 2015.5 “that a declarant aver ‘under penalty of perjury that the foregoing is true and correct.’” The declarant qualified that averment with the phrase “to the best of my knowledge.” The court noted that such “phrase, however, does not ‘somehow magically nullify’ whatever statement follows it. [Instead], the phrase ‘to the best of my knowledge’ introduces an element of uncertainty which, under certain circumstances, can be lethal.” The trial court had evaluated the declaration in context, finding no uncertainty. The appellate court upheld this determination, noting that the uncertain nature of the language used went to the credibility and weight to be accorded, and not to its admissibility. That being said, upon review, Defendants’ objections are sustained.


8. SCV-254938, Williams v. Arango
Defendant’s motion to compel answers to written discovery is granted. Written responses to the requests shall be served within 20 days of service of this order. Movant shall prepare such order within 5 days of the date of this order.

The request for sanctions is denied. There is no request for sanctions in the notice of motion as required by CCP § 2023.040.


9. SCV-255133, Double AA Corporation v. Stroupe Petroleum Maintenance, Inc.
DROPPED at the request of counsel for moving party; first amended complaint filed 10/8/14.


10. SCV-255460, Giordanengo v. Altaf
DROPPED by the court as moot; first amended complaint filed 10/2/14.


11. SCV-255834, Carl v. Kaiser Foundation Health Plan
DROPPED; stipulation and order to change venue filed 10/10/14.

 

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