Mar 03, 2015

TENTATIVE RULINGS
LAW & MOTION CALENDAR
Wednesday, March 4, 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 3, 2015. Parties in small claims cases and motions for claims of exemption are exempt from this requirement.

 

 

 


1. MCV-221582, Discover Bank v. Lombardo
Defendant’s motion to vacate default judgment is denied.


2. MCV-227741, Resurgence Capital, LLC v. Trione
Defendant’s motion for sanctions is denied. The first basis asserted for sanctions, Code of Civil Procedure section 575.2, is inapplicable. The second basis under Code of Civil Procedure section 128.7 is potentially applicable, but is not supported by the evidence presented. Here, Plaintiff presented evidence in the form of an objectionable declaration in lieu of live testimony. If the objection had not been sustained, the declaration would have included evidence supporting Plaintiff’s claim. The motion for sanctions is denied.

Plaintiff also requests sanctions and fees for the costs of opposing this motion. Given the manner in which Plaintiff through counsel pursued this matter, the bringing of this motion does not rise to a level warranting sanctions.


3. MCV-228037, Creditors Trade Association, Inc. v. Shangxian Tang
CONTINUED to Wed., April 8, 2015, at 3:00 p.m., per stipulation and order filed March 2.


4. MCV-233246, Collectronics, Inc. v. One Dime LLC
Plaintiff’s motion for appointment of receiver is granted.


5. SCV-252748, Jarvis v. Park View Construction
Selby Sheetmetal Company’s unopposed motion for determination of good faith settlement is granted.

Plaintiffs claim that the work on the house was defective with problems including defects in the roof, ceilings, walls, framing, flashing, waterproofing, pool decks, tile, stucco, weep screeds, and interior finishing. Plaintiffs seek a total of $1,266,614, allocating $39,660 to exterior general damages and $5,870 for roofing issues. Selby installed metal gutters, downspouts, and metal roof panels, but many defects at issue have no bearing on Selby’s work. Rodman Dec.

Selby has agreed to pay $35,000 to Park View, the contractor who brought the cross-complaint against Selby and the others. Selby and Park View have agreed on this amount and the allocation, with Park View claiming that Selby is liable for defective exterior gutter and metal flashing pieces that contributed to water intrusion.

Selby and Park View have apparently agreed on allocating this to the metal work which Selby was involved in. The parties’ financial conditions and insurance coverage are not at issue here. Selby’s insurance will cover the settlement and nothing indicates that this implicates coverage limits.

There does not seem to have been any issue of collusion or fraud.


6. SCV-253339, Stipanov v. Ketelson
W. Christian Krankemann’s motion to be relieved as counsel of record is granted.


7. SCV-255191, Ritter v. Bayview Loan Servicing, LLC
Bayview Loan Servicing, LLC’s (“Bayview”) demurrer is overruled.

Bayview Loan Servicing, LLC’s motion to strike is denied.

Bayview seeks judicial notice of A) the complaint; B, D, E) recorded instruments regarding the property and Kee’s ownership; C) a purported copy of the Lease; F) a judgment and injunction in related case SCV-251525; G) an April 2014 stipulated judgment stating that Plaintiffs herein owed Bayview money for rents in Bayview Loan Servicing, LLC v. Ritter, et al., MCV-230038; H) a three-day notice to quit which Bayview claims it sent Plaintiffs in October 2013; I) the November 2013 complaint in MCV-230038; J) a June 2014 notice to quit allegedly sent to Plaintiffs; and K) a notice to renters and notice to vacate which Bayview claims to have sent Plaintiffs in November 2012.

Of these, all are judicially noticeable except for C, H, J, and K, the purported copies of the lease and notices to quit or vacate which Bayview claims to have sent Plaintiffs. These are not judicially noticeable. As to the requests granted, the court is not judicially noticing the truth of any assertions made in the documents.

Defendant shall file an answer to the complaint within 20 days of notice of entry of this order.

Defendant is to serve the notice of entry of this order within 5 days of this order.


8. SCV-255936, Cruz v. National Stores
DROPPED from calendar at the request of counsel for moving party.


9. SCV-256168, Matteri v. Shear Builders, Inc.
Ron Matteri and Shear Builders, Inc.’s petition to compel arbitration is denied. According to Christensen v. Dewor Developments (1983) 33 Cal.3d 778, 783-784, a party may waive the right to compel arbitration if the circumstances indicate intent either to waive the right to arbitrate, engage in discovery and then seek arbitration, or other bad faith in litigating the court action. The party seeking to show waiver has a very heavy burden because arbitration is favored. Chase v. Blue Cross of California (1996) 42 Cal.App.4th 1142, 1151.

As Shear Builders, Inc. (“SBI”) argues, Plaintiff filed his own complaint seeking to enforce and interpret provisions of the Employment Agreement, claiming that Defendants have failed to pay him the money owed him for his work under that Agreement. Plaintiff also brought an application for writ of attachment in the context of this lawsuit and, as SBI shows, has conducted discovery, all without seeking arbitration of his own claims. This conduct constitutes a knowing disregard of the arbitration provision, and intent to waive the arbitration provisions. Plaintiff argues that the discovery was unrelated to the employment claim. However, there is no support of that claim.

SBI argues that it has suffered prejudice because it has been forced to spend time and money responding to the complaint, application for writ of attachment, and discovery, only to be faced with arbitration when filing its own complaint on the same agreement.

SBI’s position is persuasive.

Plaintiff’s motion to strike is denied. Plaintiff moves to strike allegations relating to his alleged marijuana cultivation on the ground that it is improper pleading of evidentiary facts, and not ultimate facts. Plaintiff argues that these allegations are irrelevant and do not support any cause of action. These allegations are proper and relevant; SBI raises the subject allegations as part of Plaintiff’s wrongdoing and explanation of how his conduct was wrongful, such as the statement that he took the company’s water tank to use for his own personal marijuana operation or used SBI’s credit account to buy items for this operation.

Plaintiff’s request for judicial notice is granted.


10. SCV-256191, Bean v. Wells Fargo Bank, N.A.
CONTINUED to Wed., April 29, 2015, at 3:00 p.m., per stipulation and order filed March 3.


11. SCV-256427, Cowlin v. Shiomoto
CONTINUED to Wed., May 20, 2015, at 3:00 p.m., per stipulation and order filed March 3.


 

 

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