Jul 19, 2019

 TENTATIVE RULINGS                                            

LAW & MOTION CALENDAR                                
Wednesday, July 17, 2019, 3:00 p.m.       
Courtroom 17 – Hon. Elliot L. Daum for Hon. Arthur A. Wick
3035 Cleveland Avenue, Santa Rosa
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, July 16th. Parties in small claims cases and motion for claims of exemption are exempt from this requirement.
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.
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-247747, Onemain Financial Group, LLC v. Inocentes:
Plaintiff Onemain Financial Group, LLC, successor by merger to Onemain Financial Services, Inc. (“Plaintiff”) filed the complaint in this action against defendant Patrizia A. Inocentes (“Defendant”) for breach of a written contract, seeking damages in the amount of $3,589.83. Defendant filed an answer consisting of a general denial and three affirmative defenses. This matter is now on calendar for Plaintiff’s motion for summary judgment pursuant to Cal. Code of Civ. Proc. (“CCP”) § 437c on the grounds that there is no triable issue of material fact and Plaintiff is entitled to judgment as a matter of law. The unopposed Motion is GRANTED.
The elements of Plaintiff’s cause of action for breach of contract are “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” Oasis W. Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821. The evidence submitted by Plaintiff, and the inferences reasonably deducible therefrom, establishes each of the elements of the cause of action, including showing “the fact and the amount of damages.” Pajaro Valley Water Management Agency v. McGrath (2005) 128 Cal.App.4th 1093, 1106 (emphasis in original). See SUF ¶¶ 1-4 and the evidence cited therein.
The Motion is accompanied by a proof of service showing that service was timely made on Defendant on May 7, 2019 at the address set forth on Defendant’s answer to the complaint. Defendant did not file any opposition, and therefore has not met her shifted burden to show the existence of one or more triable issues of material fact.
Plaintiff’s court costs (SUF ¶5) are not properly characterized as damages. Plaintiff is therefore entitled to summary judgment on its complaint in the amount of $3,530.89 for the principal and interest due and owing under the Agreement. SUF ¶¶ 1-4. Plaintiff may thereafter file its Memorandum of Costs to have its court costs added to the judgment which will follow the Court’s order granting this Motion.

Plaintiff’s counsel shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule of Court 3.1312(a) and (b), as well as a [Proposed] Judgment in the amount of $3,530.89 plus costs in an amount to be determined.

2.         SCV-261935, Molica v. McGee:
This matter is on calendar for: 1) the unopposed motion by plaintiff Cody Molica (“Plaintiff”) for leave to file the [Proposed] fourth amended complaint; and 2) the motion by Plaintiff to compel defendant Linda McGee (“Defendant”) to provide further responses to form interrogatories, a response to a demand to inspect real property, and for monetary sanctions.
Plaintiff’s unopposed motion to file the [Proposed] Fourth Amended Complaint is GRANTED. Cal. Code Civ. Proc. (“CCP”) 473(a)(1). Plaintiff shall file and serve the [Proposed] Fourth Amended Complaint (Russo Decl. Ex. A) within five (5) days of entry of the order granting this Motion.
Plaintiff’s discovery motion is GRANTED in part and DENIED in part.
The Notice of Motion states that it seeks to compel further responses to Plaintiff’s first set of form interrogatories. The Separate Statement filed pursuant to Cal. R. Ct. 3.1345 makes clear that the interrogatories at issue are form interrogatories 15.1, 17.1, and 12.2. Defendant’s Opposition states that after the Motion was filed, Defendant provided further responses (Beckwith Decl. ¶ 10), and Plaintiff’s Reply concedes that “amended responses cured the defects which necessitated this near moot motion.” Reply at 4:21. (Beckwith Decl. ¶ 10 cites exhibits A and B as the responses, but both are actually identical copies of Defendant’s response to Plaintiff’s first set of special interrogatories. But based on Plaintiff’s concession that curative amended responses were served, the Court will assume that Defendant did serve amended responses to the form interrogatories as well but inadvertently failed to attach them.)
Based on the forgoing, Plaintiff’s request for an order compelling further responses to the form interrogatories is DENIED as MOOT.
The Motion also seeks a response to Plaintiff’s inspection demand, served on January 23, 2019, which seeks to inspect real property and to which no written response was made. Molica Decl. ¶¶ 12, 13; CCP § 2031.010(d). The originally designated inspection date was April 19, 2019, during which time Defendant’s bankruptcy was pending and this case was stayed. Apparently, Defendant has requested a new inspection date but Plaintiff has yet to set one (Beckwith Decl. ¶ 12); however, even now Defendant has not served a written response to the inspection demand as required by CCP § 2031.210.  Reply at 5:1-2 (“Additionally, the inspection demand has not been responded to as outlined in the motion at page 6.”).
Based on the foregoing, Plaintiff’s request for an order compelling a written response to the inspection demand and an order that the inspection occur within 30 days is GRANTED. Defendant shall serve a code-compliant verified response to Plaintiff’s request for inspection of the property commonly known as 4926 Harville Road, Santa Rosa CA  95409, without objections, on or before July 26, 2019 and permit inspection at a mutually convenient date and time on or before August 26, 2019. CCP § 2031.300.
Last, in connection with this Motion relating to four discovery requests (albeit one with subparts), Plaintiff seeks $13,000 in sanctions. This sum is comprised of 20 hours—much of which was for Plaintiff’s new counsel to review the “file” and research the law relevant to the merits of the case rather than time spent as a result of any purported discovery abuse by Defendant—at $650/hour. Russo Decl. ¶¶ 9-[1]9. Defendant contends that no award of sanctions is appropriate because there were no efforts made by Plaintiff made to meet and confer following the lifting of the bankruptcy stay, and that in fact defense counsel was unaware that the bankruptcy stay had been lifted until this Motion was filed. Beckwith Decl. ¶¶  8-9; 13-16.
The Court has reviewed the declarations of Molica and Russo and the meet and confer correspondence attached to the Molica Declaration. According to the Molica Declaration, the parties met and conferred and Defendant’s counsel agreed to provide further responses to the form interrogatories by February 19, 2019. On February 18 defense counsel requested and received additional time to March 14, 2019, and the motion to compel deadline was extended by agreement to April 1. However, by March 14 Defendant had apparently decided to file for bankruptcy (and defense counsel informed Plaintiff of this), and she did file for bankruptcy on March 19, 2019. Molica Decl. ¶¶ 2-11 & Exs. A-B. The bankruptcy stay was lifted on May 15, 2019 and this Motion was filed on May 16, 2019. The Molica Declaration does not refer to any attempts to meet and confer following the lifting of the bankruptcy stay and attorney Russo (who substituted in as counsel on May 16) does not refer to any efforts to meet and confer in his declaration.
The Court concludes that Plaintiff’s actions in racing to file the Motion the day after the bankruptcy stay was lifted and before even attempting to contact defense counsel about the status of the discovery makes the imposition of sanction unjust. CCP § 2030.300(d) (further response to interrogatories) CCP § 2031.300(c) (response to inspection demand). In his Reply, Plaintiff contends that he “had no other choice” but to file the Motion (Reply at 2:28-3:2) because accounting for the stay he had only eleven days following the lifting of the stay to bring the Motion. But eleven days was sufficient time for Plaintiff to attempt to reach defense counsel to discuss the status of the responses in light of the procedural development of the lifting of the stay, and there is no indication that defense counsel would not have granted Plaintiff a further extension of time to move to compel, as he had done in the past, particularly given the fact that there is currently no trial date. Plaintiff also contends in his Reply that it was “entirely reasonable for plaintiff to infer that silence to his inquiry meant that the matters were contested and a motion to compel was required.” Reply at 4:17-29 (emphasis by Plaintiff). But the inquiry Plaintiff was referring to was an email sent on March 15, 2019, which was right after defense counsel informed Plaintiff that Defendant was filing for bankruptcy and four days before she filed. It was patently unreasonable for Plaintiff to assume that silence in the context of the impending bankruptcy filing meant that Defendant would renege on her agreement to provide amended responses once the stay was lifted.
Based on the foregoing, Plaintiff’s request for monetary sanction is DENIED.

Plaintiff’s counsel shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule of Court 3.1312(a) and (b).



3.         SCV-262796, Parra v. Santa Rosa Memorial Hospital:

This matter is on calendar for the motion by Erik L. Peterson of Bostwick & Peterson LLP to be relieved as counsel for plaintiff Roberto Parra. However, attorney Peterson represents both Roberto Parra (who has sued for medical malpractice) and Ma Carmen Gutierrez (who has sued for loss of consortium). The supporting declaration’s reference to “clients” and “plaintiffs” suggests that attorney Peterson is seeking to withdraw as counsel for both Plaintiffs but the Notice of Motion is directed only to Roberto Parra and there is no accompanying Motion addressed to Ma Carmen Gutierrez. As a result, Cal. R. Ct. 3.1362(a) and due process require that the Court construe this as a motion to withdraw from representing Roberto Parra only.
The Motion is not accompanied by a proof of service. Although there has been no appearance by any defendant (and therefore no defendant is required to receive notice of this Motion), attorney Peterson was required to file a proof of service establishing timely service on his client of “[t]he notice of motion and motion, the declaration, and the proposed order.” Cal. R. Ct. 3.1362(d).  
The declaration filed in support of the Motion checks the box that the attorney has served the client by mail at the client’s last known address (rather than the box which states that the attorney has personally served the client). MC-052 ¶ 3. The statement in the mandatory form satisfies the requirement of Cal. R. Ct. 3.1362(d)(1), which states that if the notice is served on the client by mail under CCP § 1013 “it must be accompanied by a declaration stating facts that either”: 1) it is the current residence or business address of the client or; 2) it is the last known residence or business address and the attorney has been unable to locate a more current address after making reasonable efforts to do so within 30 days before filing the Motion. But this statement in MC-052 ¶ 3 does not displace the requirement of a proof of service or satisfy the requirements of a proof of service. CCP § 1013a requires an affidavit which sets forth, among other things, “the exact title of the document served and filed,” the name and address of the person making the service,” the date and place of deposit in the mail or placed for collection and mailing, and that the envelope was sealed and deposited in the mail with the postage prepaid.
Also, in direct conflict with the declaration by attorney Peterson, the [Proposed] Order submitted with the Motion checks the box which states that the attorney has “personally served the client with papers in support of this motion” rather than the box stating that the attorney served the client by mail. MC-053 ¶ 3. Furthermore, attorney Peterson improperly did not fill in ¶ 6 of the [Proposed] Order, which would set forth the client’s current or last known address and telephone number (MC-053 ¶ 6) so there is no way for the court or the defendants (once served) to contact Roberto Parra upon the termination of attorney Peterson’s representation.
The Motion is therefore DENIED without prejudice.

Attorney Peterson shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule of Court 3.1312(a) and (b).



4.         SCV-264423, S.F.C. Mamba Tree, LLC v. Fiel:
This matter is on calendar for the hearing on Petitioner S.F.C. Mamba Tree, LLC’s (“Petitioner’s”) Petition for Approval for Transfer of Structured Settlement Payment Rights by and between Petitioner and Christina Fiel (“Transferor”) pursuant to Cal. Ins. Code (“IC”) § 10134 et seq.
The court is denying the Petition without prejudice for the reasons set forth below.
According to the Petition, Transferor (on information and belief, a 25 year old resident of Sonoma County), through her guardian ad litem, entered into an agreement for the settlement of a claim for damages arising in connection with a wrongful death claim, American General Assignment Corporation is the structured settlement’s Obligor (as defined by IC 10134(k)), and American General Life Insurance Company is the Annuity Issuer, having issued the insurance contract used to fund the structured settlement payment obligations of the Obligor. Petition ¶¶ 2-4; 6.
According to the Petition, the underlying settlement provides for 324 monthly payments of $62.73 each, beginning August 15, 2019 through and including July 15, 2046 with a 3% annual increase each August; and 215 monthly life-contingent payments of $2,427.26 each beginning August 15, 2046 through and including June 15, 2064 with a 3% annual increase each August. Petition ¶ 8. Transferor has agreed to sell the payments pursuant to a Transfer Agreement (Ex. A) to Catalina Structured Funding Inc., who in turn assigned its rights to Petitioner (Petition ¶¶ 8, 9 & Ex. B) for a total net payment of $25,382.44.
The Transfer Agreement (Petition Ex. A, as updated per the July 10, 2019 Notice, Ex. B) and the accompanying Disclosure (Petition Ex. C) provide that the future payments being sold total $708,627.31 and the discounted present value of those future payments (using the federal discount rate of 2.8%) is $263,771.04. This equates with an effective equivalent interest rate of 10.91% per year and a quotient (obtained by dividing the net payment by the discounted present value of the payments) of 9.62%.
There is no proof of service of the Petition or Notice of Hearing on file. Thus, Petitioner has not established that the documents required to be filed with the attorney general pursuant to IC § 10139 have been filed or that service of the documents required to be served pursuant to IC §10139.5(f)(2)(A)-(L) was effectuated on all interested parties as defined by IC § 10134(g) (i.e. the Transferor, the Obligor, and the Annuity Issuer). Although Petitioner filed a Notice of Declaration of Christina Fiel (“Fiel Decl.”) and Statutorily Executed Transfer Agreement (the “Updated Transfer Agreement”) on July 10, 2019, the proof of service attached to that Notice document states only that it—and not the earlier filed Petition or Notice of Hearing—was served by mail on July 10 on the Department of Justice, Transferor, Obligor and Annuity Issuer. Thus, that proof of service does not comply with IC § 10139.5(f)(2)(I)’s requirement of the filing of a proof of service “showing compliance with the notification requirements of this section.”
But even if a proof of service were proffered showing proper and timely filing with the attorney general of the Petition pursuant to IC § 10139 (i.e. “[a]t the time of filing a petition”) and proper service of the Petition and Notice of Hearing on all interested parties in accordance with IC § 10139.5(f) (i.e. not less than 20 days prior to the scheduled hearing), the Motion would be denied for failure to provide sufficient evidence, even taking into consideration the recently filed and served Fiel Declaration. See IC § 10139.5(d) (“With respect to the information required to be included in every petition for approval of a transfer of structured settlement payment rights pursuant to paragraphs (2), (3), (4), (5), and (6) of subdivision (c), that information shall be deemed to be included in the petition if it is provided at the scheduled hearing on the proposed transfer through oral testimony or documentary evidence filed with the court and made a part of the record consistent with the rules of evidence and procedure.”)
The Petition makes repeated reference to a “Declaration of Factoring Company Representative filed in this matter” (Petition ¶ 18. A, D, E, F), which would purportedly attach a copy of the annuity contract, the qualified assignment agreement, and/or the underlying structured settlement agreement, if available. No such Declaration was ever filed, and the Fiel Declaration does not attach a copy of the underlying structured settlement agreement or annuity contract or address their unavailability. Pursuant to IC § 10139.5(f)(2)(H), if any such agreement is not available, Petitioner is required to establish to the Court’s satisfaction that “reasonable efforts to locate and secure a copy have been made.” As a result, even if a proof of service were filed, the Petition lacks information required by IC § 10139.5(c).
Moreover, there is insufficient evidence for the Court to make the findings required for approval as provided in IC § 10139.5(a) and (b). Even though Transferor indicates that she has completed previous transactions with the same goal as the present transaction—to obtain the down payment to purchase a home (Fiel Decl. ¶¶ 6, 7)—she does not describe the timing and size (IC § 10139.5(b)(10)) or the financial terms of those transactions, or whether she attempted to complete other transactions which were denied (IC § 10139.5(11), (12)). It is also unclear whether this proposed transfer represents the last portion of her future payments, or whether she has other payment rights. IC § 10139.5(b)(4). Transferor’s declaration also only describes one portion of the payment rights being transferred (the substantial life-contingent payments which begin in 2046), so it is unclear that Transferor understands that she is also transferring her right to receive the 324 monthly payments beginning on August 15, 2019 of $62.73 each, with a 3% annual increase each August. Fiel Decl. ¶¶ 8-10.
Accordingly, the Petition is DENIED.

Petitioner’s counsel shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule of Court 3.1312(a) and (b).


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