Mar 31, 2015

Wednesday, March 18, 2015, 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, March 17, 2015. Parties in small claims cases and motions for claims of exemption are exempt from this requirement.



1. MCV-192245, Capital One Bank v. Loria
Appearance required.

2. MCV-215813, Portfolio Recovery Associates, LLC v. Tran
Appearance required.

3. MCV-233246, Collectronics, Inc. v. One Dime, LLC
Plaintiff’s motion to compel answers is granted. Sanctions of $690 awarded to the moving party

4. MCV-233428, Wahr Financial Group, LLC v. Jimenez
Plaintiff’s motion for order to deem matters admitted is granted.

5. SCV-248648, Lyon Financial Services, Inc. v. Nanotech Fuel, Inc.
Appearance required.

6. SCV-254453, Bob Wescotts Auto and Truck Parts, Inc. v. Baretta
Plaintiff’s motion to amend complaint is granted.

The proposed First Amended Complaint alleges breach of contract and fraud. The proposed complaint adds a cause of action for conversion. In that regard, Plaintiff argues that an element involves whether there was assent to or ratification of the taking, use, or disposition of the property. With respect to the proposed allegations based on common count, Plaintiff argues that it would necessitate a change in legal theories significantly different from that previously contemplated.

This court is guided by the judicial policy favoring resolution of all disputed matters between the parties in the same lawsuit, and that the court's discretion is to be exercised liberally to permit amendment of the pleadings. Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939. In this matter, trial is set for May 1, 2015. The policy of great liberality in permitting amendments to the complaint applies at any stage of the proceedings, up to and including trial. However, the court may consider whether allowing the amendment sought would cause prejudice to the objecting party. Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739. As here involved, prejudice may result where the amendment would require delaying the trial, increase the burden of discovery and trial preparation, or result in an inability or increased difficulty in obtaining evidence. Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471.

The court first reviews the proposed amendments in order to determine whether the delay in seeking the amendments has misled or prejudiced the objecting party. Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564–565. Counsel for Defendants replaced then-existing counsel on September 16, 2014, three months prior to the trial date then in effect. According to Mr. Warren, given that trial date he anticipated moving during trial to amend according to proof. As the matter did not proceed to trial, a proposed amended complaint was provided to opposing counsel in substantially the same form as that here proposed.

Plaintiff argues that the increased damage allegation would add to the cost of trial preparation, and further, that the complaint here considered varies from that originally proposed. The originally proposed amended complaint included damages amounting to $329,580.16 (including damages stated in paragraph 10(g)).

Plaintiff further argues that, if the amended pleading is permitted, there would need to be a continuance of trial and to re-open discovery to allow investigation of the new claims asserted. Further, Plaintiff argues that he would be deprived of the opportunity to file dispositive motions. This would, as argued by Plaintiff, increase the costs of litigation.

The court determines that the amended pleading may be filed. Such amendment may be considered by the court during trial in order to conform. Given the liberal policies guiding this court, allowing the amended pleading is proper at this juncture. The proposed amendments appear to be based on the same general facts and evidence as before, and the alleged increase in damages claimed would unlikely have modified pre-trial discovery investigation as it has been alleged previously.

Given this court’s determination, the issue remains as to whether the trial should be continued, and discovery re-opened on a limited basis. The parties are ordered to meet and confer with regard to these issues prior to hearing on this motion.

The parties are ordered to appear.

7. SCV-255350, Rivers v. Veolia Transportation Services, Inc.
DROPPED from calendar at the request of counsel for moving party.

8. SCV-256175, Campbell v. Jefferson Roofing
The demurrer and motion to strike have been DROPPED from calendar because a first amended cross-complaint was filed on 3/12/15.

9. SCV-256350, CVSR Holdings, LLC v. City of Santa Rosa
Defendant’s request for judicial notice is denied as to Item 1, and otherwise granted. The court notes that the request fails to comply with California Rules of Court, in that the documents subject to the request were not attached to the request for judicial notice, but were referenced elsewhere.

Plaintiff’s request for judicial notice is granted as to Exhibit “A,” but denied as to Exhibit “B.”

Defendant’s demurrer as to the first ground is moot, based upon the reply filed by Defendant herein.

Defendant asserts that Plaintiff’s complaint fails to state facts sufficient to constitute a cause of action. This demurrer is sustained with leave to amend. The subject complaint which is the subject of this demurrer is a jumble of paper, carelessly filed. The court will not consider the arguments raised by either party, other than what is noted herein, until such time as a complete complaint is filed.

Plaintiff shall file an amended pleading within 15 days. Defendant shall prepare and serve a proposed order on opposing counsel within five days in accordance with California Rules of Court, Rule 3.1312.



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