Jul 24, 2014

Wednesday, July 9, 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, July 8, 2014. Parties in small claims cases and motions for claims of exemption are exempt from this requirement.






1. SCV-250211, Munoz v. MED&G Group, LP
Defendant Peter Rodriguez, dba NCS/Red & White Moving Services’ motion to compel is denied.

NCS seeks to compel AT&T to comply with the subpoena, arguing that the information is directly necessary to explore Chiapero’s credibility and the truth and nature of his claims to have been in telephone communication with Plaintiffs whilst housesitting for them at the residence when they were abroad. NCS seeks all phone records between Chiapero and Plaintiffs during the period in question, from January 1, 2010 through the present. Pimentel Exhibit A.

Chiapero has already admitted in discovery to a friendly relationship with Plaintiffs, and to have had telephone conversations with them. The moving party fails to demonstrate why the information sought is relevant, much less why it is directly relevant. The moving party asserts that it is “clearly” relevant on the issues of bias and credibility but provides no other elucidation, and in balancing the state interest in ascertainment of the truth against the privacy rights here involved, the court fails to see the alleged importance of the records.

No sanctions awarded.

2. SCV-251652, Fischlin v. Fetter
CONTINUED to Wed., July 30, 2014, 3:00 p.m. per stipulation and order filed 7/3/14.

3. SCV-252122, Iniguez v. Citimortgage, Inc.
Plaintiffs’ motion for order establishing admissions and for sanctions is denied.

This motion is defective. First, although Plaintiffs argue that they served Vantium and MERS with the requests for admissions, and that the latter failed to respond to the requests for admissions even though the deadline has passed, Plaintiffs provide absolutely no evidence whatsoever. These assertions are raised in the points and authorities, and in the separate statement which indicates that no response was received. The only evidence, the Kelly declaration, discusses only the attorney’s hours and expenses. It has no information on the discovery at issue aside from a statement that the documents attached, apparently copies of the requests for admissions, are true and correct. The separate statement is not under oath and is not even signed; as such, it is not evidence which may be considered by the court. Further, the declaration does not state that the assertions in the other documents are true. Finally, although Vantium and MERS were parties at the time Plaintiffs served the discovery, they are no longer parties, this court having sustained their demurrer to the entire complaint without leave to amend.

4. SCV-253752, Hotz v. Lewis
DROPPED; dismissal of entire action filed 7/7/14.

5. SCV-253914, Garcia v. 23 Bottles of Beer, LLC
Defendants’ motion for summary judgment is denied.

Defendants fail to meet their burden of demonstrating that they cannot be liable as a matter of law because, although they demonstrate that they took substantial precautionary measures to ensure safety on the premises, under the circumstances, the adequacy of such measures is a question of fact and the court cannot find them to be sufficient as a matter of law to support the granting of this motion. See Facts 1-24, and evidence cited therein. Because Defendants do not meet their burden on this point, the burden of raising triable issues does not shift to Plaintiff. Nonetheless, Plaintiff creates triable issues of fact at least as to Defendants’ knowledge of the prior incident, further creating an issue as to foreseeability, and as to Defendants’ efforts to undertake protective measures during and after the incident. Facts 5, 9, 22; Plaintiff’s Facts AF1-30, Garcia Declaration, Exhibit A to Li Declaration.

Plaintiff’s objections are overruled. They are directed to facts, not evidence and objections may only be to evidence, and because they are procedurally defective under CRC 3.1352 and 3.1354. The objections would, in any case, have no impact on the outcome of this motion.

Defendants’ request for judicial notice is granted.

Defendants’ objections as to 18 and 19 of the Garcia declaration, 1-17 of the Adams declaration, and 14-18 of the Li declaration and Exhibit A are sustained; the remainder of the objections are overruled.

6. SCV-254270, Picchi v. The Karen MacKenzie Agency
DROPPED per request from attorney for moving party.

7. SCV-254525, Zamora v. BAC Home Loans Servicing LP
The court recuses as to this matter and it is re-assigned to the Hon. Elliot Lee Daum in Courtroom 16. The hearing on the demurrer has been continued to Wed., July 9, 2014, at 3:00 p.m. before Judge Daum in Courtroom 16. Please see the Law & Motion tentative rulings for Courtroom 16.

8. SCV-254545, Unitarian Universalists of Petaluma v. North American Elite Insurance Company

Judgment on the Pleadings:
Plaintiffs’ motion for judgment on the pleadings is denied as to the answer and is moot as to the cross-complaint.

Plaintiffs move for judgment on the pleadings as to the answer and the cross-complaint filed by Defendant on January 13, 2014. A first amended cross-complaint was filed on March 17, 2014. As such, the motion is moot regarding the request for judgment as to the original cross-complaint.

Plaintiffs seek judicial notice of the complaint filed on October 30, 2013, Defendant’s cross-complaint, and Defendant’s responses to requests for admissions. The court will take judicial notice of the existence of the pleadings, but will not take judicial notice of the discovery responses as they were not part of the court record. The court independently considers these responses as attached to the Hirsch declaration.

Defendant North American Elite Insurance’s answer includes both a general denial and affirmative defenses. Regardless of any deficiency in the affirmative defenses, Defendant’s answer generally denies each and every allegation of the complaint and thus states a valid defense to the allegations of the complaint. The motion for judgment on the pleadings is denied.

Plaintiffs and Cross-Defendants’ demurrer to the first amended cross-complaint is overruled.

Plaintiffs’ request for judicial notice is granted.

Plaintiffs demur to Defendants’ first amended cross-complaint alleging that the sole cause of action asserted does not state facts sufficient to constitute a cause of action. Plaintiffs claim that they are implied-in-law co-insureds of property owner and insurance policy holder, Four Springs Seminars, due to a tenant-landlord relationship and as such, are immune from a subrogation action.

Defendant opposes, contending that the cross-complaint sufficiently alleges a negligence claim based on subrogation. Defendant alleges that Plaintiffs are not co-insureds because Four Springs Seminars did not waive its rights against Plaintiffs in writing prior to the fire loss, because Plaintiffs were not named as insureds in the insurance policy, and because there was no landlord-tenant relationship between Four Springs and the Plaintiffs – Plaintiffs were transient guests of the retreat and lodging facilities. (Defendant’s Cross-Complaint, ¶¶ 17-20.)

The demurrer fails because there is a question of fact on the face of the cross-complaint as to whether Plaintiffs were tenants or simply lodgers during their four-day stay on Four Springs’ property which will determine whether an action for subrogation will succeed. (See Roberts v. Casey, 36 Cal.App.2d Supp. 767.

Plaintiffs and Cross-Defendants shall file an answer to the first amended cross-complaint within 20 days of notice of entry of this order.

9. SCV-255545, Bertoli v. Irish Beach Clusterhomes Association Incorporated
Plaintiffs’ application for restraining order and preliminary injunction is denied without prejudice. In granting the temporary restraining order, the court ordered that the papers associated with this proceeding be served on Defendants no later than June 11, 2014, and the proofs of service filed no later than June 13, 2014. A proof of service was filed as to the Association Defendant, but not as to the remaining Defendants, contrary to the requirements of the order.


© 2014 Superior Court of Sonoma County