Jan 16, 2017

TENTATIVE RULINGS

LAW & MOTION CALENDAR

Wednesday, January 11, 2017, 3:00 p.m.

Courtroom 17 – Hon. Peter Ottenweller

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 Ottenweller’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 10, 2017.  Parties in small claims cases and motions for claims of exemption are exempt from this requirement.

 

  

 

1.  SCV-255541, Walton v. Kunde Enterprises, Inc.

Plaintiffs’ Motion to Set Aside Waiver of Jury Trial is granted

 

Defendant’s motion is denied.

 

There is a policy generally favoring relief from waiver because of the long-standing policy in favor of jury trials.  Bishop v. Anderson (1980) 101 Cal.App.3d 821, 823.

 

Clearly, Plaintiffs’ previous and current counsel failed to timely preserve their right to a jury trial.  However, Plaintiffs’ current attorney did post jury fees in March, 2016, thereby putting Defendants on notice of their intention.  Plaintiffs provide adequate basis for the delay.  Further, there is no prejudice to Defendants.

 

Plaintiffs’ request to strike the supplemental declaration of Timothy J. Grant is denied.  The Grant declaration does not change the court’s ruling.

 

Disclosure as to Richard W. Freeman, Jr.:

From 1984 through 1989, Judge Ottenweller was an associate in James, Gack and Freeman.  From 1989 through 1991, Judge Ottenweller became a partner in that firm with Mr. Freeman.  Judge Ottenweller left the firm in 1992 to start his own law practice.  Judge Ottenweller has had no financial connection to the law firm or Mr. Freeman since 1991.  Judge Ottenweller does not find this past relationship a disqualifying situation.  Judge Ottenweller can be fair and impartial to both sides in this action.

 

 

2.  SCV-258323, Kureshi v. Rothman

Appearance required.  Defendant’s motion to compel documents including psychiatric records is granted.  Sanctions awarded to moving party in the amount of $1,315.  The court is concerned that Ms. Sandhu may not have been aware of this motion as she has recently substituted in this case. 

 

Disclosure:

When Judge Ottenweller was appointed to the Sonoma County Superior Court in December, 2010, he referred cases to the Shapiro law firm for which he received compensation.  As of 2013, Judge Ottenweller and the Shapiro law firm have no financial business arrangement.  Judge Ottenweller does not view this past business arrangement as disqualifying him from presiding over this case.  Judge Ottenweller can be fair and impartial to both sides. 

 

 

3.  SCV-258633, The 26th Corp v. PNC Mortgage

Defendants PNC Bank, N.A. and U.S. Bank, N.A.’s Motion for Summary Judgment is granted.  Defendants’ facts are established, except for fact 16, and Plaintiff fails to dispute any of them.  Plaintiff expressly admits and does not dispute any of Defendants’ facts except for facts 16 and 25, and it fails actually to demonstrate a dispute as to those.  Fact 16, as noted above, is not established and Plaintiff merely points this out by correctly arguing that no evidence supports the fact.  Fact 25, asserting that Plaintiff has been unable to locate documents showing that PNC is not a successor by merger to National City Bank (“National”), is established and Plaintiff claims to dispute it by pointing to two of Defendants’ own exhibits, Bruggemann declaration, Exhibits 3-4, but Plaintiff fails to demonstrate a dispute for two reasons.  First, the exhibits to which Plaintiff cites actually support Defendants’ contention that PNC is successor by merger to National, with Exhibit 3, for example, identifying PNC as such a successor on page 8.  Second, Plaintiff then admits in fact 26 that PNC is the successor by merger to National, rendering pointless any effort to negate the assertion that it lacks documents to the contrary.

 

Defendants’ facts, and the evidence on which they are based, particularly judicially noticed documents 2-8 and the PNC declaration, clearly negate Plaintiff’s claim that Defendants’ asserted right is based on a deed of trust (DOT) that is non-existent or has been reconveyed.  Plaintiff’s sole allegation supporting its complaint asserts that Defendants’ “claim is based upon a purported Deed of Trust real estate loan which has been paid in full or which is otherwise non-existent.”  Complaint, ¶ 8.  The facts clearly show, and Plaintiff admits, that Defendants have a right based on the “August DOT,” as identified in the separate statement, this DOT has not been reconveyed, Plaintiff obtained full reports showing this DOT and lien before buying the property, etc. 

 

Although Defendants fail to establish fact 16 as presented, this is not material because Defendants otherwise demonstrate that they have a valid interest in the property based on the August DOT and its related loan, that DOT has not been reconveyed, and Plaintiff otherwise had full notice of Defendants’ interest, and specifically the August DOT when Plaintiff obtained the property.

 

In opposition, Plaintiff, having admitted the facts which negate its sole allegation, now argues that “PNC neglected to record an instrument as required by California Law” and that there is no recorded instrument showing PNC’s claim.  However, this argument is unpersuasive.  First, Plaintiff never alleged this basis for the claim in the complaint.  Second, the assertion is vague, terse, conclusory, and without any stated evidentiary support.  Third, the facts established do demonstrate that recorded instruments reflect PNC’s interest, Plaintiff states that it does not dispute them, and in fact the evidence which Defendants cite show not only PNC’s, and thus US Bank’s, interest in the property, but that documents showing these interests and roles were recorded, PNC having been shown on the title report and recorded instruments as having an interest as successor to National.  Fourth, Plaintiff provides nothing showing that PNC, having obtained its interest as successor-by-merger to National, needed to record anything showing a transfer of interest to it or the like; there was no transfer as such since National simply merged into PNC.

 

Request for judicial notice granted.

 

Plaintiff’s objections overruled.

 

 

4.  SCV-259264, Perry v. Bonilla

Defendant’s Demurrer to Complaint as to all causes of action is granted with leave to amend.  Plaintiff’s facts fail to state any causes of action.

 

Defendant’s Motion to Strike the prayer for relief is granted with leave to amend.  Plaintiff fails to state facts supporting any damages.

 

Plaintiff has leave to amend within 20 days of the service of the notice of entry of this order.  Defendant is to serve the notice of entry of this order within 5 days of this order.

 

 

5.  SCV-259340, Block-Sabanovich v. Hudson

Motion denied.  Defendant may not obtain a blanket protective order and if he wishes to obtain immunity, he must provide sufficient notice to the prosecutor, with explanation of the basis for the privilege assertion and immunity, and give the prosecutor opportunity to object.  The denial is without prejudice to Defendant properly seeking immunity upon proper notice to the prosecutor.  Defendant shall make himself available for deposition.  Any assertion of privilege shall be made on a question by question basis.  Defendant’s request for stay is denied.  Plaintiff is 92 years old and in poor health.

 

 

6.  SCV-259430, Mannie v. Pope

Defendant Valle Vista Management Association, Inc.’s Demurrer to Plaintiff’s Complaint is denied.  Defendant shall file an answer on or before January 23, 2017.

 

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