Feb 01, 2015

TENTATIVE RULINGS
LAW & MOTION CALENDAR
Wednesday, January 28, 2015, 3:00 p.m.
Courtroom 17 – Hon. Joyce M. Cram for the 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, January 27, 2015. Parties in small claims cases and motions for claims of exemption are exempt from this requirement.

 

1. MCV-227371, Thunderbolt Holdings LTD, LLC v. Poulter
Plaintiff’s Motion for Substitution of Party Plaintiff is granted.


2. MCV-231463, Panting v. Fladseth
Defendants’ Demurrer to Plaintiff’s First Amended Complaint is overruled. Defendants to file an answer within ten (10) days of the date of this order.


3. MCV-232252, National Collegiate Student Loan Trust 2006-1 v. Cook
Request for Judicial Notice granted.

In light of Plaintiff’s failure to file an opposition, the Motion to Vacate Default Judgment is granted. Defendants to file an answer within ten (10) days of the date of this order.


4. MCV-232325, Collectronics, Inc. v. Cardinal Puffs, LLC
Plaintiff’s Motion for Appointment of Receiver and to Appoint Michael Brewer as Receiver is continued to Wednesday, February 25, 2015, at 3:00 p.m. to permit timely service, unless Plaintiff provides the court with proper proof of service by the time of the hearing. The proof of service filed states that Plaintiff served the motion in December 2015, facially impossible. In order to ensure that the court receives it on time, Plaintiff should either send the proof of service directly to this department or provide this department with a courtesy copy before the hearing, or appear at the hearing. Should Plaintiff cure this defect in time, the court will grant the motion. The receiver shall post an undertaking in the amount of $15,000 per Code of Civil Procedure section 567.


5. MCV-233568, Express Auto Funding v. Portillo
Defendant’s Motion to Quash Service of Summons is denied. Code of Civil Procedure section 418.10(a)(1) states the defendant may move to quash service of summons on the grounds of lack of jurisdiction of the court “over him or her.” This court does have jurisdiction over the Defendant based on the sub-service November 11, 2014.

The Petition to Vacate Arbitration Award is granted. The petition was not timely served. Petitioner is not entitled to the tolling provision of Code of Civil Procedure section 1288.8. Petitioner did not ask the arbitrator to correct his award, but rather that he vacate it. (See In Re Marriage of Bercznak (2003) 110 Cal.App.4th 1062.) This is clear from the requested relief, that the award be vacated because “the arbitrator exceeded his or her authority, and the award cannot be fairly corrected.” Paragraph 10c


6. SCV-251594, Summit State Bank v. Kalia
AMCO Insurance’s Motion for Summary Judgment is denied in its entirety. All parties’ objections are overruled. The moving party’s evidence is insufficient to establish, as a matter of law, that it would not have issued the policy but for alleged concealment or misrepresentation because it is not clear from the face of the moving party’s evidence that the information was necessarily material, and the missing information did not go directly to the core issues of the policy. The situation is thus distinguishable from Imperial Casualty & Indemnity Co. v. Sogomonian (1988) 198 Cal.App.3d 169. Moreover, a "trier of fact is not required to believe the 'post mortem' testimony of an insurer's agents that insurance would have been refused had the true facts been disclosed." Imperial Casualty & Indemnity Co., supra, 181; Thompson v. Occidental Life Ins. Co. (1973) 9 Cal.3d 904, 916. Opposing parties also provide evidence showing that it is not certain what misrepresentations, if any, occurred. See Facts 22-26, 29-35, and 37, and Opposing Separate Statement of Undisputed Facts and cited evidence, specifically, Mukherji Declaration; Stout Deposition; Mukherji Deposition. The moving party’s evidence does not establish as a matter of law that it did not breach its obligations an act in bad faith. Its own evidence demonstrates that the canopy was covered and that there may not have been a reasonable basis for claiming a dispute about this coverage, it paid far less than even its own estimate of repairs until after the foreclosure, and the gasoline business completely ceased. The opposition also raises additional information in the additional separate statement and at Facts 8, 51, 59, and 386, to raise triable issues. Finally, the evidence is insufficient to demonstrate as a matter of law that the moving party’s conduct did not contribute to, or cause, the foreclosure or other damages. The mere fact of financial problems and defaults leading to foreclosure does not mean that the results of the fire and moving party’s failure to pay full insurance proceeds in a timely manner did not contribute to the damages. This uncertainty, and thus material dispute, is particularly ambiguous evidence given the opposing evidence regarding loss of business and inability to pay after the fire.


7. SCV-254394, Riggs v. County of Sonoma
Request for Judicial Notice granted.

Defendants Sonoma County Transportation Authority and State of California’s Demurrer to Plaintiffs’ First Amended Complaint is overruled. Defendants Sonoma County Transportation Authority and State of California’s Motion to Strike Plaintiffs’ First Amended Complaint is denied. Defendants to file an answer within ten (10) days of the date of this order.

Plaintiffs Frank and Cathy Riggs, Inc. dba Duncan Enterprises’ Motion to Compel Deposit and Application for Withdrawal is denied.

Defendants Sonoma County Transportation Authority and State of California’s Motion to Continue the Trial and All Discovery and Motion Cut Off Dates is denied.


8. SCV-254679, Watertrough Children’s Alliance v. Sonoma County
Appearances are required. Counsel should be prepared to discuss what portions of the proposed augmented record are proper matters for judicial notice. The court’s tentative ruling is to grant the motion as to those matters only.


9. SCV-255046, Kaneko v. Jovel-Miyazaki
Defendants Melissa Bradley Real Estate and David Gallagher’s Demurrer to Plaintiff’s First Amended Complaint is overruled. The court is in receipt of Defendants’ reply showing lack of service of the oppositions. The court’s ruling is based on the moving papers only.

Defendants Melissa Bradley Real Estate and David Gallagher’s Motion to Strike Portions of Plaintiff’s First Amended Complaint is denied in part, and granted in part. It is denied as to the attorney’s fees for the second cause of action, breach of contract, since this essentially states a claim for open book account allowing for limited attorney’s fees under Civil Code section 1717.5. It is denied as to the ninth cause of action which is not a new cause of action but an amended version of the original ninth cause of action, both being for financial elder abuse despite slight changes in the wording. It is granted without leave to amend as to any claim for attorney’s fees under any other cause of action.

Defendants to file an answer within ten (10) days of the date of this order.


10. SCV-255982, Nakagawa v. Nakagawa
The Petition for Appointment of Partition Referee is granted. The court appoints Michael Torr as referee in accordance with the proposed amended order of appointment.

 

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