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LAW & MOTION CALENDAR
LAW & MOTION CALENDAR
Wednesday, December 11, 2013, 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 the Court by telephone at (707) 521-6725, and all other opposing parties of your intent to appear by 4:00 p.m. today, Tuesday, December 10, 2013. Parties in small claims cases and motions for claims of exemption are exempt from this requirement.
1. MCV-221210, Creditors Trade Association, Inc. v. Syed
Plaintiff moves the court to appoint a receiver in order to enforce the judgment against Defendants, specifically by seizing and selling Defendants’ liquor licenses #515851 and #525861 in order to satisfy the judgment.
Defendants oppose the motion, arguing, as they did on the motion for attorney’s fees, that they had paid the amount owed to Plaintiff prior to judgment and that the judgment for the remainder improperly seeks to hold them liable for the debt of a previous owner. They also argue that they have, since the judgment was entered, made some unsuccessful efforts to settle with Plaintiff for a lesser sum or provide one of the liquor licenses at issue.
2. MCV-226608, Discover Bank v. Ricci
Motion to deem facts as admitted is granted as follows. The requests for admission will be deemed admitted unless the responding party provides responses in substantial compliance with the requirements by the time of the hearing. Sanctions of $260 awarded to the moving party.
3. MCV-226974, Midland Funding, LLC v. Hernandez
Motion to compel Defendant to respond to the production request is granted. The court notes that monetary sanctions are not sought.
4. MCV-227239, Creditors Trade Association, Inc. v. Shiners Bar and Grill, LLC
Unopposed motion for appointment of a receiver is granted.
5. SCV-248689, First American Title Insurance Company v. Russell
First American Title Insurance Company demurs to the cross-complaint of Eric Drew. The Cross-Defendant, though, is First American Title Insurance Company. This error was addressed by way of an amended notice of hearing, indicating that the demurring party is, indeed, First American Title Insurance Company. In this party’s reply, it was suggested to this court that, if the demurrer is not sustained, the matter should be continued to the date of an as yet unfiled demurrer. The court declines.
First American Title Insurance Company argues that it had no legal obligation to search the title and thus breached no duty. It appears that movant is arguing that the fault leading to the alleged damages, if any, cannot stem from First American Title Insurance Company.
The demurrer is overruled. As a matter of law, it cannot be determined what First American Title Insurance Company’s obligations, role, or duties were. As such, it cannot be determined as a matter of law that the subject cross-complaint fails to state a cause of action.
6. SCV-249375, Bernal v. Wells Fargo Bank, N.A.
Motion is dropped for failure to file a proof of service.
7. SCV-251123, Halvorsen v. City of Petaluma
Defendants demur to the first amended complaint, attacking each cause of action on the ground that it fails to state facts sufficient to constitute a cause of action. Defendants note that Plaintiffs have improperly added a new cause of action and, aside from deleting two causes of action, have simply reordered the causes of action without making any material substantive changes. As such, Defendants contend that Plaintiffs continue to fail to state statutory bases of liability, that the fifth cause of action lacks specificity required, they owed Plaintiffs no duty, and that they are immune from liability under Gov. Code §§ 815.2(b), 820.2, 821.6, and 845.
For the reasons stated previously, and as the subject complaint fails to state a cause of action, the demurrers are sustained, without leave to amend.
8. SCV-251561, Knott v. JP Morgan Chase Bank, N.A.
Defendants’ Request for Judicial Notice is granted.
With regard to Plaintiffs’ Request for Judicial Notice, such request is granted as to Exhibits A through W with the exception of A through C, and L through P, as to which such request is denied.
The motion for summary judgment is granted.
The basis of this complaint, as admitted by the parties at Fact 25 and in their arguments, is that the trustee’s sale that occurred violated the TRO in the prior action, SCV-247761. The undisputed evidence, as set forth in Fact 19, demonstrates that in the prior action the court granted a preliminary injunction barring any sale of the property at that point, but expressly rejected any language invalidating the sale that had already occurred. Further, it is undisputed that Plaintiffs dismissed that prior action without prejudice without obtaining any relief regarding the sale.
The court notes that, with regard to Plaintiffs’ Fact 13 and Fact AF 46, Plaintiffs assert that there is no recorded notice of sale and no instrument recorded on July 7, 2009. This fails because, although Plaintiffs’ declaration states this, it is an effort to contradict Defendants’ judicially noticeable document, a notice of sale which indicates on its face that it was in fact recorded on July 7, 2009. See Defendants’ Request for Judicial Notice (RJN), Ex. 5. This self-serving declaration to the contrary does not create a dispute about the recordation.
As noted above, the key to this lawsuit and every cause of action seems to be Plaintiffs’ claim that the sale was improper in light of the TRO. The parties themselves both state as much at Fact 25, where Defendants demonstrate that Plaintiffs claim that the sale was improper and should be cancelled because of the TRO and Plaintiffs demonstrate that “[t]he allegations and prayer in the Complaint ask that the foreclosure sale … be cancelled or deemed void because it was conducted in violation of the [TRO] ….” Plaintiffs also argue as much in their opposition papers and, more fundamentally, that seems to be the basis of the complaint from the face of the allegations. The result is, as noted, that all other facts and allegations seem to be nothing more than context and do not in of themselves set forth a cause of action here. The claims regarding loan modification and related matters appear to be the crux of the prior action and Plaintiffs’ complaint does not even seem to set forth enough information on any such issues beyond the TRO, or even to state a cause of action on the face of the pleadings. In short, the pleadings give no indication of any basis for the claims except for the TRO.
The key fact regarding the TRO issue is at Fact 19, which sets forth the order in the prior action regarding the preliminary injunction and the sale. This shows that the court in the prior action did end up granting a preliminary injunction barring any sale of the property at that point but expressly rejected any language invalidating the sale that had already occurred. Plaintiffs do not dispute the fact or the language of the order. Moreover, that took place in July and August 2010, with that prior action lingering on for another year and a half before Plaintiffs dismissed it, without obtaining any relief from the court regarding the sale, in April 2012.
In any event, Defendants demonstrate, and Plaintiffs essentially admit, that the loan was in default, Plaintiffs failed to cure the default, Defendants recorded the proper instruments, and Plaintiffs admitted in deposition that they had no money or income that would allow them to pay the loan payments. The court also, as Defendants argue, see no violation of the one-action/security-first rule since nothing in either the complaint allegations or evidence indicates that Defendants have done anything other than conduct the non-judicial foreclosure sale. The complaint simply contends that because Defendants have done this already, “any further” action to foreclose would somehow violate the rule, reasoning which appears to be groundless.
9. SCV-252880, Soiland v. Perez
The motion to compel responses and to deem the requests for admission admitted is granted; the motion to compel production is denied. Where a party has failed to respond on time to a request for production, the first step is not to compel production but, as with interrogatories, to compel a response. CCP § 2031.300. The requests for admission will be deemed admitted unless the responding party provides responses in substantial compliance with the requirements by the time of the hearing.
Sanctions of $760 awarded to the moving party.
10. SCV-253823, Cotati Citizens for Open Market Competition v. City of Cotati
Petitioner seeks a writ of mandate under CCP § 1085 overturning Respondent’s rejection of Petitioner’s referendum petition challenging Resolution 2013-15 (the Resolution). The court grants the requested writ.
Petitioner contends that after Respondent passed the Resolution granting a franchise agreement to Real Party in Interest Redwood Empire Disposal, Inc. (“RPI”), Petitioner circulated a referendum petition to challenge the Resolution; although the Resolution refers to and incorporates a contract as Exhibit A, Respondent’s employee, RPI Tamara Taylor (Taylor), had provided to Petitioner a copy of the Resolution without an Exhibit A; this resulted from the fact that at the time no actual completed Exhibit A since the document to be incorporated as such was at the time of the resolution found not to be a correct representation of the contract being adopted; however, Taylor subsequently rejected Petitioner’s referendum petition due to failure to include the Exhibit A. Petitioner’s referendum seeks to challenge the Resolution on the ground that the Resolution adopted the agreement with RPI without allowing the contract to be awarded through the normal custom of competitive bidding.
Elec. Code § 9238 governs referendum petitions in municipal elections:
“(a) Across the top of each page of the referendum petition there shall be printed the following:
“Referendum Against an Ordinance Passed by the City Council”
(b) Each section of the referendum petition shall contain (1) the identifying number or title, and (2) the text of the ordinance or the portion of the ordinance that is the subject of the referendum.
The petition sections shall be designed in the same form as specified in Section 9020.
(c) Each section shall have attached thereto the declaration of the person soliciting the signatures. This declaration shall be substantially in the same form as set forth in Section 9022, except that the declaration shall declare that the circulator is a voter or is qualified to register as a voter of the city, and shall state his or her residence address at the time of the execution of the declaration.”
According to Billig v. Voges (1990) 223 Cal.App.3d 962, 968, “[t]echnical difficulties in referendum petitions will not invalidate the petitions if they substantially comply with statutory requirements.” The court added that “in determining whether a petition is valid despite a technical defect, a paramount concern is whether the defective form of the petition frustrates the purpose of the technical requirement.” Ibid. In the case before it, the referendum petition, in stating that it was setting fort the test of the resolution at issue, simply set forth the city’s summary of the text. The court found the petition to be defective since it did “not furnish the information the statute requires, i.e., the text or language of the challenged law,” explaining that a “summary” of a resolution is not the same as the actual text of the resolution. Ibid. The court further noted the significance of the requirement to include the text of the resolution since a referendum petition “requires that voters be fully informed of the substance of the challenged measure so that the petition reflects the actual, informed will of the people.” Id., 967.
Several decisions have ruled that the required “text” of which the resolution must set forth may include exhibits attached to, or incorporated in, the resolution. Lin v. City of Pleasanton (2009) 176 Cal.App.4th 408; Defend Bayview Hunters Point Committee v. City and County of San Francisco (2008) 167 Cal.App.4th 846; Chase v. Brooks (1986) 187 Cal.App.3d 657, 660.
The court in Defend Bayview Hunters Point Committee, at 856-857, ruled that exhibits attached to, or incorporated into, a resolution “are part of the ‘text’ of the ordinance for referendum petition purposes” and that the petition must include such an exhibit when material to the referendum. Such exhibits, the court stated, do not necessarily need to be included if immaterial to the referendum or not needed to fully inform the voters of what the referendum will address, or “when the petition ‘contains the full and complete text of everything that will be enacted if the voters approve it.’” However, such exhibits, the court ruled, are required if needed to fully inform the voters such as where, as in the case before it the exhibit rather than the ordinance contains the “critical text enacted into law” or “when inclusion of it would ‘improv[e] the chances prospective signers will not be confused regarding the breadth of the challenged ordinance’ [Citation], [or] when the content of the document ‘was the resolution's focal point and was expressly made a part of it.’ [Citation.]”
In Lin, supra, at 417, the court ruled that a referendum petition was not defective for failing to include a development plan that the challenged ordinance adopted, explaining that the development plan
“was not included in the text of that ordinance, was not attached as an exhibit, and was not expressly incorporated by reference. It may well be the case that an informed voter would prefer to review portions of the Development Plan before determining whether to sign a referendum petition that could ultimately result in that plan's being set aside. But section 9238, subdivision (b)(2) requires the “text” of the ordinance being challenged, not the inclusion of additional information a conscientious voter might want to know before signing the petition.”
Lin did not rule that a referendum petition must always include all attached or incorporated exhibits, as it did not address this issue. Instead, the court merely explained, in the language at 419-420 that
“The text requirement … is designed to reduce voter confusion regarding the content of a referendum …. In all but the most extreme situations, this purpose is fulfilled by construing the “text” to include the language of the ordinance itself, plus any documents attached as exhibits or expressly incorporated by reference. Though it is possible to hypothesize a case in which the content of a local ordinance would be so sparse as to be intelligible only when read with documents falling outside this definition of “text” (i.e., “The City hereby approves the development plan for property owned by Jane Doe—period”), more is not required in a referendum petition unless the text as so defined would be affirmatively misleading.”
In the instant matter, the Resolution incorporates the contract which it states is attached as Exhibit A but all parties agree that the contract was not agreed upon until about two weeks later, on April 9, 2013, and thus the draft of the agreement available at the time was not the actual agreement into which the parties entered. See Taylor Dec., ¶¶ 3-7; Pierce Dec., ¶¶ 3-7. On April 11, 2013, Petitioner obtained for the referendum a copy of the Resolution, with the original, unapproved, proposed draft agreement, attached to it, and not the actual approved agreement. When this occurred, the parties had by then approved the latter; and despite some communications over missing or incorrect parts of the Resolution, Respondent’s employee, Taylor, never sent to Petitioner the final agreement. Taylor Dec., ¶¶ 6-16; Pierce Dec., ¶¶ 5-7; Terreri Dec.
The court notes Petitioner’s alleged basis for the petition is based upon the bidding process, and not the language of the contract itself. This contention would appear to make Exhibit A unnecessary as Petitioner is ostensibly challenging the Resolution on a basis for reasons unrelated to the language of the contract.
It is also significant, as Petitioner argues, that there was no approved Exhibit A at the time of the Resolution and that Respondent, by its own admission, provided Petitioner only with a copy of the Resolution that included the unapproved draft agreement that Respondent’s city council had rejected at the resolution hearing, leaving the agreement to be approved at a later date.
11. SCV-253873, Johnson v. Credit Cars Inc.
Motion to compel is denied as moot, and in addition, based upon an improper format.
Both requests for sanctions are denied.
12. SCV-254068, Treasury Wine Estates Americas Company v. Roberts
The motion for a protective order is granted in part. It is granted as to a partial stay of discovery regarding only depositions, interrogatories, and requests for admission directed to Defendants Nathan Roberts, Quinn Roberts, and Keith Roberts, until August 2014 or as otherwise ordered by the court. It is denied as to a stay of any other discovery or other proceedings. Should any party claim the privilege against self-incrimination as to any other discovery, such issue shall be addressed on an individual basis.
Plaintiff’s request for sanctions is denied.
13. SCV-254519, Down Under Construction v. Robinson
CCP §1094.5(h)(1) provides that “the stay shall not be imposed or continued unless the court is satisfied that the public interest will not suffer and that the licensed hospital or agency is unlikely to prevail ultimately on the merits.” In other words, the court may only order a stay if it finds that (1) the public interest will not suffer and (2) the agency is unlikely to prevail on the merits.
Petitioner contends that he has a valid license and has received no other complaints aside from the one at issue in this action. Respondent points to the lack of support for Petitioner’s claim and that it is clear, even according to Petitioner’s own version of events, that the work was below the standard of care and that a member of the public was harmed. Petitioner has not met his burden. The record discloses that the conduct in question was of great concern. Petitioner has not shown that the public interest will not suffer if a stay is imposed.
Section 1094.5(b) states that in cases of administrative mandamus the test is “whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion.” It also sets forth a test for abuse of discretion, which “is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.”
Subdivision (c) sets forth the test for a claim that “the findings are not supported by the evidence.” It states that where “the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence. In all other cases, abuse of discretion is established if... the findings are not supported by substantial evidence in the light of the whole record.” As stated in Shapell Industries, Inc. v. Governing Board (1991) 1 Cal.App.4th 218, 231, “[i]f fundamental rights are implicated the court may be authorized to exercise its independent judgment to determine whether the findings are supported by the weight of the evidence.” Otherwise, in an action for administrative mandate pursuant to section 1094.5, “the inquiry is directed to whether substantial evidence supports the decision.” Bunnett v. Regents of University of California (1995) 35 Cal.App.4th 843, 849.
Here, the court determines that the substantial weight of evidence supports the findings here in question. Under applicable law, Respondent appears to be justified in ordering the assessed amount. Petitioner has not achieved its burden.
Based on each of the two factors, this motion is denied.
14. SCV-254636, Wells Fargo Bank v. Robledo Family Winery, Inc.