Aug 22, 2014

Thursday, August 20, 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, August 19, 2014. Parties in small claims cases and motions for claims of exemption are exempt from this requirement.


1. MCV-207478, Ford Motor Credit Company, LLC v. Gunn
Appearance required by Defendant Janet L. Gunn.

2. SCV-242484, Greater Sonoma Partnership v. B Squared, Inc.
CONTINUED to 9/17/14, 3:00 p.m., per stipulation and order.

3. SCV-249537, People of the State of California v. Peter
Plaintiff’s motion for issuance of an order to show cause re contempt is granted. Plaintiff shall issue a proposed order within 5 days.

4. SCV-249954, Westamerica Bank v. Caldera Taping & Painting, Inc.
Gary Caldera’s motion to strike is granted.

The basis of one argument is based on the stipulation and order in the divorce action, Caldera v. Caldera, SFL-43129. Mr. Caldera’s Request for Judicial Notice at Exhibit A is a transcript of proceedings in that case plus the stipulation and order. The stipulation and order states at page 2, in full pertinent part, that “Wife’s attorney, Mr. Francis hereby withdraws as attorney for Wife. He shall file a substitution forthwith. He shall not participate as counsel in any further investigation, litigation, or motion as attorney for Wife.” Mr. Caldera correctly argues that in the transcript, Judge Wong noted that documents and declarations filed on a motion asserted unspecified ethical misconduct by Francis which she said “questions [his] attorney-client relationship” such that she termed it “a serious Code of Professional Conduct issue” which she wanted to avoid. Tracy Caldera’s position, that the order barring Francis from representing her was meant for that divorce action only, is at least a reasonable interpretation. However, of greater importance with regard to the issues presented is Mr. Caldera’s argument that Tracy Caldera entered the judgment against him only after dismissing her cross-complaint against him. Mr. Caldera argues that, if this is so, then there is currently no operative pleading against him and the court should strike the cross-complaint.

Tracy Caldera argues that the motion fails to state what portions of the complaint is subject to the motion to strike, and that the motion is defective because a demurrer could have been filed instead; there is no basis for finding the acts of Tracy’s former attorney, Francis, to be void; and this is a bad-faith attempt to avoid Gary Caldera’s obligations.

First, as noted, this court has already vacated the judgment against Gary Caldera on the basis that Tracy Caldera’s claims had been dismissed. This adjudicates Tracy Caldera’s claims, and as such, the court has no jurisdiction over the claims, rendering further prosecution of the dismissed cross-complaint invalid.

The procedural arguments are unpersuasive. Tracy Caldera may be able to prosecute her claims again, but the propriety of this would be considered via a motion to set aside the dismissal or through seeking some other potential relief.

5. SCV-252364 Duncan v. Stucker-Ennis
CONTINUED to 9/17/14, 3:00 p.m., per stipulation and order.

6. SCV-253514, Dockery v. Thomason
Appearances are required with regard to the motion to amend the complaint and to transfer the matter to the Small Claims Division.

7. SCV-254119, Sunia v. Sonoma Valley Pool & Spa, Inc.
Plaintiff’s motion to quash subpoena duces tecum is granted.

There is no dispute that the information sought concerns medical records from UCSF for the period after the incident which is the subject of the lawsuit. See Durrell Dec., Ex. 1. The subpoena seek the “complete file” on Plaintiff, including “[a]ll documents and records relating to” Plaintiff as well as “[a]ll medical evaluations, testing data, and reports” progress reports, case history notes, registration and intake forms, x-rays and MRIs. Id.

Plaintiff asserts that the medical treatment at UCSF was solely for esophageal and weight-related gastric-bypass treatment and operations that had nothing to do with the injuries which she allegedly suffered in the incident. Points and Authorities, 5-8. She asserts that her injuries from the incident including general bruising over the body, broken ribs and shoulder-neck injuries. Ibid. The UCSF treatment, though was solely gastrointestinal and, she adds, Defendants have already obtained medical records and testimony of others providing Plaintiff with medical treatment in general and for the injuries she suffered, including her primary care physician, a neurologist, and a pain specialist. Ibid. Defendants admit that, as claimed by Plaintiff, the incident caused injuries to Plaintiff’s neck, shoulders and back. The defense argues that the UCSF records are only for esophageal reconstruction and gastric bypass. Defendants argue that the records sought are relevant because they involve treatment that was provided after the alleged injuries were incurred, and because Plaintiff may be having “expanded” neurological complaints. Defendants, however, do not support this claim of expanded complaints.

Even though a plaintiff places her medical condition in controversy, and the privacy protections as to that injury are often overcome, there is no implied blanket waiver of all privacy as to all treatment. On balance, there is little support as to the probative value of the evidence that is the subject of the subpoena. Plaintiff maintains her right to privacy as to the treatment that is the subject of the subpoenas in question.

Neither party sought sanctions.

8. SCV-254361, Estate of Lola Llamas v. Rodgers
Defendants’ demurrer is overruled.

Plaintiffs adequately state all the causes of action pleaded. The demurrers for defect or misjoinder of parties and to the first, second and sixth causes of action fail for the reasons which this court has already explained in the prior demurrer and the court notes that these demurrers are simply repeats of demurrers which this court previously overruled. Moreover, the allegations are sufficient to demonstrate an elder-abuse cause of action as to Arcadio since the allegations allege that Defendants took money belonging to Arcadio. Plaintiffs need not allege a physical or mental harm or suffering. The court notes that Defendants specifically argue that Plaintiffs fail to plead any cause of action as related to Arcadio, most notably the first cause of action, but Defendants bring no demurrer directed solely to a cause of action relating to Arcadio. They bring one demurrer to the entirety of each identified cause of action. Therefore, for example, the demurrer to the cause of action for elder abuse must fail as long as any part of the claims are valid even if the claim would not be valid only as to Arcadio. The Plaintiffs have cured the sole defects which this court noted in its ruling on the prior demurrer, negating any possible uncertainty over third and fourth causes of action and those causes of action adequately plead all the required elements. Finally, the new fifth cause of action is similarly sufficient. Plaintiffs plead that Defendants took money to which Plaintiffs had and have a right and yet converted it to Defendants’ own purposes, refusing to return it on demand.

Defendants shall file an answer to the first amended complaint within 20 days.

9. SCV-254767, Bloom v. Twarog
DROPPED from calendar at the request of moving party.

10. SCV-255191, Ritter v. Bayview Loan Servicing, LLC
DROPPED as substitution of attorney filed 7/31/14

11. SCV-255595, Benjamin v. Sullivan
DROPPED from calendar at the requst of moving party.

12. SCV-255808, Bussard v. Real Equity Partners, LLC
The court denies the petition for injunctive relief.

Plaintiff has not carried its burden of showing that it will suffer imminent harm from the mere processing of land use approvals.

Defendants’ request for judicial notice is granted.

Evidentiary Objections

1. Defendants object as hearsay (Evid. Code § 1200) and lacking foundation to the allegation in Paragraph 16.A of the Declaration of Paul Bussard that: “In 1959, my parents Ralph and June Bussard obtained permission from the lot owners …”

2. Defendants object as hearsay and lacking in foundation to the allegation in Paragraph 16.B of the Declaration of Paul Bussard that: “In 1982, the City of Santa Rosa wanted to build a water pumping station …”

3. Defendants object as hearsay and lacking in foundation to the allegation in Paragraph 16.B of the Declaration of Paul Bussard that: “… the lot owners within the subdivision agreed to allow …”

4. Defendants object as hearsay and lacking in foundation to the allegation in Paragraph 16.B of the Declaration of Paul Bussard that: “… the lot owners approved the subdivision.”

5. Defendants object as hearsay and lacking in foundation to the allegation in Paragraph 16.C of the Declaration of Paul Bussard that: “In 2000, the owners agreed to annex to the City of Santa Rosa.”

6. Defendants object as hearsay and lacking in foundation to the allegation in Paragraph 16.C of the Declaration of Paul Bussard that: “The owners agreed to allow the owners whose properties border Spain Avenue to subdivide the back portion of their lots …”

7. Defendants object as hearsay and lacking in foundation to the allegation in Paragraph 18 of the Declaration of Paul Bussard: “In 1994, one of the owners whose property backs onto Spain Avenue was allowed to split his lot.”

8. Defendants object as hearsay and lacking in foundation to the allegation in Paragraph 19 of the Declaration of Paul Bussard that: “Some of the owners approved …”

Defendants’ Evidentiary Objections 1- 8 are sustained as each lacks foundation; there is no showing of personal knowledge on the part of the declarant.

Defendants claim that Plaintiffs will suffer no harm from the actions they seek to enjoin. The only action that is even arguably prohibited by the CC&Rs is the actual subdivision of the property, which will not occur for many months. (See Traboulsi Dec.) Defendants are merely processing entitlements. What is before the City Council is a General Plan Amendment, a Zoning change and a Tentative Subdivision Map. There is nothing in the CC&Rs that prohibits any such action. It is not alleged that a General Plan or Zoning designation is prohibited and a tentative map does not divide the property. As detailed by Defendants’ engineer Charlie Traboulsi, the process of recording an actual subdivision of the property, that is the recording of a final subdivision map, is at least nine months away.

Plaintiffs are also requesting preliminary injunctive relief to prevent work of improvements on the property. Defendants argue that even assuming the improvements are designed to allow for an ultimate subdivision, there is nothing in the CC&Rs that prohibits work on the property. Defendants claim that the time necessary to obtain permits that would allow for actual physical work of installing improvements for the subdivision is at least several months away. Plans have to be prepared by engineers and then they have to be submitted for plan check. Defendants contend there is more than enough time to have this matter heard and decided on the merits.

Defendants argue that there is no authority for enjoining a public entity from undertaking its legislative responsibilities. The noticed public hearing that Plaintiffs’ seek to enjoin was initiated by them. It was held in Johnson v. Board of Supervisors of Marin County (1947) 31 Cal. 2d 66 that it would be improper to issue a temporary injunction restraining the county board of supervisors from taking any steps to bring ordinance into effect. The plaintiff there could not show that passage of ordinance without any attempt to enforce it would instantly produce irreparable injury, and plaintiff had an adequate remedy at law in the event of passage of an illegal ordinance by injunction to restrain enforcement of the ordinance. Likewise here, Plaintiffs have an adequate remedy by enjoining the actual recordation of the final map, if successful on the merits.

Here, Plaintiffs are seeking to enforce CC&Rs that were recorded in 1948, before any subdivision was in place and that have never been honored by the owners of the lots. Plaintiffs continue to have a mobile home on their property as a second dwelling, both of which are prohibited by the alleged CC&Rs. (Dec. of Jeff Komar, ¶ 3.) In 2006, the property located at 5521 Monte Verde was processed through the City of Santa Rosa and obtained approval for second dwelling units (See Dec. of Jeff Komar). The owners of 5227 Monte Verde are operating a business on the property, which is prohibited by the CC&Rs. The Official Assessor’s Parcel Map attached to the Declaration of Jeff Komar reflects that out of the approximately 27 original lots in the subdivision, 8 have been divided into lots smaller than one acre. (Komar Dec., ¶ 7.) There are currently 19 lots in this subdivision that are less than one acre, which is purportedly prohibited.

Plaintiff’s own declaration submitted in support of injunctive relief establishes that the CC&Rs have never been enforced. The notion that neighbors can selectively pick and choose when and if restrictions are to be honored is not only inconsistent with the document, it demonstrates that a division will not cause great and irreparable harm.

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