Jun 17, 2018

 

TENTATIVE RULINGS                                       

LAW & MOTION CALENDAR                           

Wednesday, June 13, 2018, 3:00 p.m.                     

Courtroom 17 – Hon. Arnold D. Rosenfield for Hon. Arthur A. Wick

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 Wick’s Judicial Assistant by telephone at (707) 521-6725, and all other opposing parties of your intent to appear by 4:00 p.m. on Tuesday, June 12th.  Parties in small claims cases and motions for claims of exemption are exempt from this requirement.

 

 PLEASE NOTE:  The Court WILL provide a Court Reporter for this calendar.  If there are any concerns, please contact the Court at the number provided above.

 

 

1.      MCV-239776, Barclays Bank Delaware v. Matson:

 

The Motion for Judgement on the Pleadings is GRANTED. Defendant has admitted the allegations in the Complaint in her Answer.

 

This motion is treated as a general demurrer to the Answer. Since no material issues are raised and no affirmative defense stated, the motion is granted. (See Barasch v. Epstein (1957) 147 Cal.App.2d 439.)

 

Plaintiff shall submit a proposed order consistent with this ruling within 20 days.

 

 

2.      SCV-258081, Groover v. Ratajczak:

 

The applications of David Barillari and Duane Loft to appear as counsel pro hac vice in this matter are GRANTED. CRC Rule 9.40 has been complied with and no opposition has been received.

 

Proposed orders may be submitted for signature.

 

3.  SCV-2600673, Daniel v. City of Healdsburg:

 

    Defendant City of Healdsburg argues that summary judgement/adjudication should be granted because Plaintiff has failed to demonstrate sufficient proof that Gov. Code § 835 threshold requirements have been met.

 

Under section 835, Plaintiff must demonstrate that the City had “actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”

 

The main area of conflict centers on whether the City had the requisite actual or constructive notice. Plaintiff relies on evidence that City representatives visiting the exact site of the alleged dangerous condition in the months leading up to the May 28, 2016 incident is sufficient. As it turned out, the City had put out requests for bids to install sidewalks and was doing pre-construction walk-throughs of the site just before the incident. (See Plaintiff’s Response to Undisputed Facts #14.)

 

The Plaintiff argues that this evidence establishes, at the least, that a material issue of fact exists as to whether the City had actual notice of the alleged dangerous condition.  The Defendant replies, contending that: “At most, Plaintiff has demonstrated that it is possible or even likely that someone from the City may have inspected the area for the construction project prior to Plaintiff’s fall. However, there is no definitive proof that this is true.” (Emphasis Added.)

 

The Defendant concedes that “it is possible or even likely that someone from the City may have inspected the area for the construction project.”  “The presence of [reasonable] inferences supporting a judgment in favor of plaintiff is sufficient to defeat a summary judgment in favor of defendant.” (Hulett v. Farmers Ins. Exch. (1992) 10 Cal.App.4th 1051, 1060.) The evidence submitted by the Plaintiff provides a reasonable inference that the City, through Mr. Lapin, an authorized agent, had actually inspected the area, including the area where the alleged fall occurred. The question as to whether such notice, through Mr. Lapin or an authorized representative’s inspection included a realization that the condition was “dangerous” is a question of fact for the trier thereof. (See Levine v. City of Los Angeles (1977) 68 Cal.App.3d 481; and Rodrihuez v. City of Los Angeles (1963) 215 Cal.App.2d 463.)

 

From the evidence submitted, there is a material issue of fact in dispute as to whether the City had notice of the defect through the preconstruction inspections that occurred prior to the alleged injury. Further, this same evidence presents issues of fact in dispute as to whether the construction had “begun” prior to the alleged injuries.

 

Accordingly, the Defendant’s motion for summary judgment is denied, and its motion for adjudication is denied.

 

4.  SCV-260954, The National Grange of the Order of Patrons of Husbandry v. Bennett Valley Guild:

 

Plaintiff’s motion for an order “requesting removal of Ellis Law Group pending appeal of disqualification order” is DENIED.

 

The case of URS Corporation v. Atkinson/Walsh Joint Venture (2017) 15 Cal.App.5th 872 is controlling.

 

In URS the Court of Appeal held: “[A] appeal of an order disqualifying an attorney automatically stays enforcement of the order.” (URS Corporation, supra, 15 Cal.App.5th at 887.) If there was any doubt regarding this holding the Court of Appeal described it as “a bright line rule.” (Id.) The court goes on to emphasis: “Parties and trial courts now will be on notice that an order disqualifying an attorney is automatically stayed by an appeal. (Id.)

 

Plaintiff’s arguments to the contrary fall far short of giving rise to any reason that the court should disregard the “bright line rule.”

Defendant shall submit an order within 20 days consistent with this ruling.

 

 

5.  SCV-261025, North American Risk Services, Inc. v. Woldow:

The Motion for Leave to File a First Amended Complaint is GRANTED.

 An answer shall be filed within statutory timeframes unless otherwise ordered or agreed.

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