Sep 02, 2015

TENTATIVE RULINGS
LAW & MOTION CALENDAR
Wednesday, September 2, 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, September 1, 2015. Parties in small claims cases and motions for claims of exemption are exempt from this requirement.

 

 

 

 

 

 

1.  MCV-191209, Daimlerchrysler Financial Services Americas, LLC v. Shanks

Plaintiff’s motion to amend the judgment against Debbie M. Shanks, to include the names Deborah Shanks and Deborah M. Smialek, is granted pursuant to CCP § 116.630.

 

 

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

Plaintiff’s application for order to show cause why Defendant should not be held in contempt is granted. Plaintiff shall provide a proposed form of order.

 

 

3.  MCV-234772, Citibank, N.A. v. Farber

Plaintiff’s motion for order that matters in request for admission of truth of facts be admitted is granted.

 

 

4.  SCV-252364, Duncan v. Stucker-Ennis

Judith Ann Nader’s motion for leave to file cross-complaint is granted.

 

 

5.  SCV-255664, Aronow v. Lipman

Defendants move to compel production of documents from Plaintiff, and to produce an appraisal in connection with a demand for exchange of documents in connection with a disclosure of expert witnesses.

 

The motion is interpreted as a motion to compel further responses, not production, and is granted as such with respect to the requests for production. It is denied with respect to the request for expert disclosure. 

 

Plaintiff’s responses were late, thus waiving objections and Plaintiff must bring a noticed motion to obtain relief from this waiver. This has not occurred.

Plaintiff apparently obtained this appraisal not for this litigation, but for a business transaction, specifically to obtain a loan to buy out other interests in the property. The work-product objection is otherwise groundless since Plaintiff himself admits that he obtained the appraisal not for this lawsuit but in order to meet the requirements of the lender from whom he obtained the loan. The appraiser or an expert who may rely on the appraisal may potentially be retained as an expert or testify but according to Plaintiff, this has not yet occurred that and in any case this would not transform this appraisal into expert analysis or work product obtained for the litigation.

 

Because the expert request does not seem applicable to this appraisal (Plaintiff’s expert is not relying on it), the court denies the motion concerning exchanging expert reports. If this stated purpose by Plaintiff is ultimately different from that taken at trial, such issue may be addressed by the court for trial purposes.

 

Sanctions are denied. Neither party sufficiently engaged in meet and confer efforts. Further, there were merits to the positions taken by each party with regard to different aspects of the motion.

 

 

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

CONTINUED to Fri., Sept. 18, 2015, at 9:30 a.m. pursuant to stipulation and order filed 8/27/15.

 

 

7.  SCV-256197, Manning v. Bellis

DROPPED from calendar at the request of counsel for moving party; matter has settled.

 

 

8.  SCV-256619, Gloege v. Lillyquist

Although the caption of Defendant’s motion to compel includes reference to request for production of documents, the notice of motion itself refers only to the first set of form interrogatories.

 

Defendant’s motion to compel further responses to form interrogatories Nos. 2.5, 2.6, and 2.7 is denied. The form interrogatories do not relate to the “last years of Mrs. Burrow’s life.” Moreover, the answers given by Plaintiffs are sufficient.

           

With regard to Defendant’s Request for Production of Documents 2, 3 and 4, Plaintiffs’ objections on the grounds of privilege are valid and serve as the basis for denying Defendant’s requests. Additionally, the motion itself does not state the relief being sought. The caption of the motion indicates the motion relates to a Request for Production of Documents, yet the motion itself and the points and authorities do not reference a Request for Production of Documents, nor is any relief identified with respect to anything other than form interrogatories, fees and costs.

           

Defendant’s requests are denied on the additional grounds that the motion is procedurally defective, in that there was an inadequate “meet and confer.”         

 

 

9.  SCV-256889, Bucher v. Bucher

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

 

 

10.  SCV-256825, Advanced Nutrients Ltd. v. 3 G Green Garden Group, LLC

Defendants Robert Higgins, Sharon Higgins, David Pratt, and Dimitar Dimitrov move to compel further responses to demands for inspection and copying. 

 

The parties lump the requests into two distinct groups, the first being items 5-8. In these, Defendants seek every document which refers, relates to, or reflects any communications between Plaintiffs or one on their behalf and each individual Defendant. Plaintiffs objected on the grounds that the requests are vague and ambiguous, overly broad and burdensome, relevance because the discovery is unrelated to the subject matter; and “arguably sweeps in attorney client- communications and/or attorney work product.” 

 

As Defendants argue, these demands are sufficiently clear, are not overly burdensome, and on their face they seek potentially relevant information that does not necessarily involve any privilege or work product. With regard to the scope of the response due to the large number of emails involved, Plaintiffs fail to adequately address the resulting burden of production. With regard to the issue of privilege, the “objection” that a response “arguably sweeps in attorney client- communications and/or attorney work product” is insufficient.  A privilege log must be provided with additional responses which complies with statutory and case law. The motion to compel is granted as to these requests.

 

With regard to items 10-11, 16-18, and 22-26, Defendants seek all documents referring or relating to, or evidencing any efforts by Plaintiffs or their agents to prevent the formulae at issue from becoming public; and concerning assertions that Defendants hindered Plaintiffs’ business activities and alleged or engaged in an aggressive plan to steal Plaintiffs’ trade secrets, customers, and employees. Plaintiffs responded that the requests are unclear and include privileged and work-product items but agreed to produce all items that are not privileged or work product.  Plaintiffs have not produced any documents responsive to these demands despite a promise to do so. In fact, it appears from the pleadings that Plaintiffs failed to timely investigate in connection with their responses to discovery. The information requested involves directa and probative evidence. The objection as to vagueness is overruled, and in fact is essentially moot in light of Plaintiffs’ agreement to produce all non-privileged documents.  

 

The privilege and work-product objections could potentially be valid but are not necessarily applicable on the face of the requests.  Again, Plaintiffs must provide new responses and, if they still wish to assert these objections, a privilege log.

 

Again, it is premature to compel production since Plaintiffs need, at this point, to serve further responses. It is, for example, logical that maybe there are no responsive documents that are not privileged. However, there is insufficient information from which such a determination may be made. 

 

In circumstances such as here presented, the court shall impose monetary sanctions unless that party acted with substantial justification, or other circumstances make the imposition of sanctions unjust. CCP §§ 2023.030, 2031.310. Defendants seek $2,925 for 6.5 hours spent on the original motion, and 2.5 for the reply, at $325 an hour. The court determines that this request is reasonable. Plaintiffs shall pay sanctions in the amount of $2,925 in total to the moving parties.

 

 

11.  SCV-256929, Porter v. Nationstar Mortgage, LLC

Defendants’ demurrer is sustained in part and overruled in part. The demurrer to the first, second and third causes of action are sustained with leave to amend. They are based on the claim that Defendants lack a beneficial interest or authority but improperly put the burden on Defendants without setting forth facts actually demonstrating a lack of such interest or authority.  Gomes v. Countrywide Home Loans (2001) 192 Cal.App.4th 1149; Debrunner v. Deutsche Bank National Trust Co. (2012) 204 Cal.App.4th 433; Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256. The demurrer to the fourth cause of action is overruled because Plaintiffs adequately plead failure to contact in violation of Civ. Code § 2923.5. The demurrer to the fifth cause of action is overruled because Plaintiffs sufficiently allege the terms and breach. They clearly allege the basic terms breached and they include the deed of trust which sets forth these terms. The complaint also alleges how it was breached (¶ 14) by imposing on Plaintiffs charges that were incorrect or inapplicable, and at paragraph 22 by failing to give notice before accelerating. 

 

The request for judicial notice is granted.

 

An amended complaint shall be filed and served within 20 days of service of notice of this order.

 

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