Sep 20, 2014

Wednesday, September 17, 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, September 16, 2014. Parties in small claims cases and motions for claims of exemption are exempt from this requirement.


1. MCV-221472, Creditors Trade Association, Inc. v. Hauser
Appearances are required.

2. MCV-232579, Portfolio Recovery Associates, LLC v. Kinses
Appearance required by Defendant John Kinses.

3. SCV-230846, Hogan v. DeAngelis Construction, Inc.
Defendants DeAngelis Construction, Inc., Marvin DeAngelis, DeAngelis-Pope Homes and Gary Pope’s (“DeAngelis”) motion to vacate the May 2014 renewal of judgment is granted.

Ronald and Victoria Hogan (“Hogan”) request the court to take judicial notice of various documents. The court grants the request as to numbers 1, 3, 5, 7, 11, 13 and 14. The court denies the request for judicial notice as to the remaining requests.

Hogan objects to the declaration of Jewell Hargleroad. These objections are overruled.

DeAngelis relies on CCP § 683.170 to argue that the court should vacate the renewal because the court has the power to vacate it “on any ground that would be a defense …, including the ground that the amount of the renewed judgment as entered … is incorrect.”

CCP § 683.170 governs “Vacation of Renewal.” It states, in full and with emphasis added,

(a) The renewal of a judgment pursuant to this article may be vacated on any ground that would be a defense to an action on the judgment, including the ground that the amount of the renewed judgment as entered pursuant to this article is incorrect, and shall be vacated if the application for renewal was filed within five years from the time the judgment was previously renewed under this article.

(b) Not later than 30 days after service of the notice of renewal pursuant to Section 683.160, the judgment debtor may apply by noticed motion under this section for an order of the court vacating the renewal of the judgment. The notice of motion shall be served on the judgment creditor. Service shall be made personally or by mail.

(c) Upon the hearing of the motion, the renewal may be ordered vacated upon any ground provided in subdivision (a), and another and different renewal may be entered, including, but not limited to, the renewal of the judgment in a different amount if the decision of the court is that the judgment creditor is entitled to renewal in a different amount.

The application for renewal states that the original judgment was entered May 17, 2004; DeAngelis claims to have received the notice of the renewal by mail on July 9, 2014. Hargleroad Dec., ¶ 7. It argues that Plaintiffs are improperly trying to renew a variety of orders that are not the final judgment, pointing out that the May 2004 order was not a final judgment but a pre-trial order merged into a 2007 amended judgment, which the appellate court affirmed, and which is encompassed in the conditional 2010 modified amended judgment; the renewal is based also on an order expunging DeAngelis’s lis pendens on the ground that DeAngelis had not demonstrated a real property claim at that time; the December 14, 2006 order on which Plaintiffs rely also was merged into the 2007 amended judgment; DeAngelis and Engstrom Defendants both owe a part of the consequential damages but the renewal does not mention Engstrom; the appellate court ruled that no interest starts accruing until Plaintiffs perform and return the property; and Plaintiffs improperly seek fees and costs which the appellate court already ruled Plaintiffs may not recover.

The motion is granted.

4. SCV-238462, Dillett v. Schram
Motion to Substitute Plaintiff is denied without prejudice for the same reasons set forth in the ruling on the prior motion seeking the same relief. Defendants’ objections to the Cochran Dec., ¶ 2 and Ex. A, are sustained; the remaining objections are overruled.

Motion to Vacate Dismissal and Enforce Judgment is denied without prejudice for the same reasons set forth in the ruling on the prior motion seeking the same relief. Defendants’ objections to the Cochran Dec., ¶ 6, Exs. C and E, are sustained; the remaining objections are overruled.

When Plaintiff originally brought these motions, the court was unable to grant the motions presented due to evidentiary problems, which for the most part were curable. Despite a few minor changes, Plaintiff has failed to make any attempt to remedy the defects noted previously, providing none of the missing information and providing no new or proper authentication and foundation to cure the defects previously raised in objections which this court sustained.

5. SCV-244007, Matthews v. Gaspardone
L. Joseph Gaspardone, Jr., Matthew D. Eshoo, Meta Fund I, L.P., and Meta Alliance, LLC (“Gaspardone”) move for an order requiring Plaintiffs to pay attorney’s fees.

The basis upon which Gaspardone seeks fees is through the “Limited Partnership Agreement” of the Meta Fund I, LP (attached as Ex. “A” to the Terry Dec.). The operative clause, at section 9.09, provides that “[s]ubject to the parties obligation to submit Disputes to arbitration as provided in Section 8.04, the prevailing party shall be entitled to recover from the losing party its attorneys’ fees and costs incurred in any lawsuit or other action brought to enforce any right arising out of this Agreement.”

Plaintiffs argue that (1) as the Limited Partnership Agreement required a party to submit the matter to arbitration prior to recovering attorney’s fees, and because moving parties herein failed to petition to compel arbitration, attorney’s fees may not be recovered against Plaintiffs; (2) the court has already ruled with regard to a previous motion involving Leo Gaspardone, Sr. that a party that fails to submit to arbitration waives the right to invoke the attorney’s fees provision in the Limited Partnership Agreement. Further, it would be inconsistent to deny attorney’s fees to one dismissed Defendant and then award them to another Defendant as the agreement applies equally to any Limited Partner; and (3) the only claims submitted were tort claims, and not breach of contract claims. As such, such claims are not within the ambit of the language of the attorney's fee provision here involved.

First, moving parties herein argue that the doctrine of judicial estoppel should prevent Plaintiffs from arguing that there is no basis for an award of attorney’s fees. Plaintiffs argue that in a prior motion, attorney's fees were denied with regard to Leo Gaspardone, Sr. In fact, with regard to that motion, the court specifically noted that the Defendant provided insufficient evidence to demonstrate that the court should invoke the doctrine of judicial estoppel. In their opposition, Plaintiffs did not address the law as to waiver; they argued only that the decision of Judge Giordano was conclusive. In fact, as to that point, no authority was provided.

With regard to the scope of the fee clause, in order to include the tort claim here involved the language of the clause must be broad enough to clearly show that the parties intended the contractual fee clause to apply to noncontract claims. The clause here involved is broad enough to include the claim involved. See, for example, Lerner v Ward (1993) 13 Cal.App.4th 155, 158 (contract provision providing for fee award “[i]n any action or proceeding arising out of this agreement” was sufficiently broad to cover noncontract claims). The parties failed to adequately address, at least in sufficient specificity, the authority addressing such clauses. The court, however, concludes that the clause was sufficiently broad to include the claim here involved.

The remaining issue is whether, by failing to engage in arbitration under the agreement, the parties waived attorney’s fees under the agreement. The attorney’s fees clause at section 8.09 is expressly made “[s]ubject to the parties [sic] obligation to submit Disputes to arbitration as provided in Section 8.04 ….” Section 8.04 has nothing to do with arbitration, but rather addresses notices relating to the Agreement. The parties hereto assume, logically, that the reference was meant to be Section 8.01. This section requires disputes to be determined by “final and binding arbitration, and not by a lawsuit or resort to court process .…” [Section 8.01(c)]. The issue presented is whether each parties’ mutual failure to demand compliance with Section 8.01 constitutes a waiver of the attorney’s fee clause, or otherwise. The court determines, and there is little dispute, that the parties waived the right to arbitration. The specific issue is whether the attorney’s fee clause is conditional on the submission of the matter to arbitration, to wit, subject to the parties’ obligation to submit the disputes to arbitration. The court here determines that the fee clause is conditioned upon compliance with the arbitration section. As such, the clause is not applicable.

Attorney’s fees are denied.

6. SCV-246738, STRS Ohio CA Real Estate Investments I, LLC v. Alcal/Arcade Contracting, Inc.
DROPPED per request from attorney for moving party.

7. SCV-252677, U.S. Bank v. Mollai
DROPPED per request from attorney for moving party; notice of settlement filed 9/4/14.

8. SCV-254138, Baxter v. Azari
Plaintiff’s motion for attorney fees is granted as follows.

This is a motion for fees incurred by Joseph Baxter. He was represented by Sara Baxter who provides evidence that she is neither an employee nor partner of Joseph Baxter. The court trial was completed in less than a day. The court awarded $24,813.12 at the conclusion of the testimony.

The complaint was a collection matter sounding in breach of contract and common count for account stated/book account.

The court determines that the requested hourly rate of $300 per hour is reasonable.

The court has evaluated the time spent by Sara Baxter. The court determines that 29.1 hours is reasonable given the pleadings, the nature of the case, and the relative complexity of the case. For example, the time billed for drafting and preparation of the complaint, which was a simple and straightforward complaint, was inordinately high. The fees awarded for time billed by Ms. Baxter amounts to $8,730. These fees are determined to be reasonable. The court determines that the paralegal fees sought are unreasonable; the tasks sought in this fee motion are not necessary for a paralegal to perform. There is otherwise very little support for the paralegal’s time billed. The court awards costs amounting to $775.87. Thus, the total award is $9,505.87.

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