Jun 27, 2022

LAW & MOTION CALENDAR                       
Wednesday, June 22, 2022, 3:00 p.m.                
Courtroom 17 – Hon. Bradford DeMeo    
3035 Cleveland Avenue, Santa Rosa         
PLEASE NOTE: Per order of the court, any party or representative of a party must appear remotely through Zoom for this calendar unless you request an in-person appearance by 4:00 p.m. the day before the hearing.
If the tentative ruling is accepted, no appearance is necessary via Zoom unless otherwise indicated.
D17 – Law & Motion 3:00 pm Wednesday
Meeting ID: 895 5887 8508
Passcode: 062178
By Phone (same meeting ID and password as listed for each calendar):
+1 669 900 6833 US (San Jose)
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 DeMeo'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 21st. Parties in small claims cases and motions for claims of exemption are exempt from this requirement.
PLEASE NOTE: The Court’s Official Court Reporters are “not available” within the meaning of California Rules of Court, Rule 2.956, for court reporting of civil cases.


1.         MCV-252976, Wells Fargo Bank, N.A. v. Walker:
Plaintiff Wells Fargo Bank, N.A. (“Plaintiff”) filed the complaint in this action against defendant Rhona Walker (“Defendant”) for damages based on breach of contract, and common counts (the “Complaint”). This is on calendar for Plaintiff’s motion for summary judgment or in the alternative summary adjudication in their favor on the grounds that each element of the causes of action have been proven by Plaintiff. Defendant has not filed an opposition to the motion. The motion is GRANTED.
        I.            Facts
Defendant requested a line of credit from Plaintiff. Plaintiff’s Separate Statement of Undisputed Facts (PSS), Common Counts ¶¶ 1. Repayment of lent funds was a condition of the credit. PSS, Common Counts ¶ 2. In taking the line of credit, Defendant accepted the contract and its terms. PSS, Breach of Contract ¶ 2. Defendant used the line of credit and incurred charges and debts thereon. PSS, Breach of Contract ¶ 2. Defendant failed to repay borrowed funds and interest, and has not made a payment since August 18, 2019. PSS, Common Counts ¶ 6. Defendant has not disputed any of the underlying charges with Plaintiff internally. PSS, Common Counts ¶ 5. Plaintiff performed their conditions of the contract by extending the credit to Defendant. PSS, Breach of Contract ¶ 7. Defendant’s failure to make payments constituted a violation of the contract. PSS, Breach of Contract ¶ 11. As a result of the above, Defendant’s failure to repay Plaintiff results in an obligation of $12,435.68. PSS, Common Counts ¶ 6.
     II.            Burdens on Summary Judgment
Summary adjudication “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” CCP § 437c(c). All evidence and inferences drawn reasonably drawn therefrom must be viewed in the light most favorable to the party opposing summary adjudication. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.
“A plaintiff moving for summary judgment “bears the burden of persuasion that ‘each element of’ the ‘cause of action’ in question has been ‘proved,’ and hence that ‘there is no defense’ thereto.” Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1195; citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.
If a plaintiff meets its initial burden moving for summary judgment, the burden shifts to the defendant to provide sufficient evidence to raise a triable issue of fact as to the defense asserted. CCP § 437c(p)(1). An issue of fact exists if “the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” Aguilar, 25 Cal.4th at 845.
A moving party does not meet its initial burden if some “reasonable inference” can be drawn from the moving party’s own evidence which creates a triable issue of material fact. See, e.g. Conn v. National Can Corp. (1981) 124 Cal.App.3d 630, 637; Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840. All the papers submitted must be considered in determining whether or not there is a triable issue of any material fact. CCP § 437c(c).
 III.            Plaintiffs Shift Their Burden
“The only essential allegations of a common count are (1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment.” Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460, internal quotations and citations omitted. “A common count is not a specific cause of action, however; rather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness, including that arising from an alleged duty to make restitution under an assumpsit theory.” McBride v. Boughton (2004) 123 Cal.App.4th 379, 394.
A cause of action for breach of contract requires a Plaintiff to prove: 1) the existence of a contract; 2) plaintiff’s performance or excuse for non-performance; 3) defendant’s breach; and 4) the resulting damages. Reichert v. General Ins. Co. of America (1968) 68 Cal.2d 822, 830.
Plaintiff has presented facts proving each element of their causes of action. Therefore, Plaintiff has shifted their burden. There is no opposition. Plaintiff’s motion for summary judgment is GRANTED.
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).
2.         MCV-256816, Debt Management Partners, LLC, a Limited Liability Company v. Enger:
Plaintiff Debt Management Partners, LLC, a Limited Liability Company (“Plaintiff”) filed the complaint in this action against defendant Mark Enger (“Defendant”) for damages based on breach of contract and open book counts (the “Complaint”). This matter is on calendar for the motions by Plaintiff to deem admitted the matters set forth in its first set of requests for admission, pursuant to Cal. Code Civ. Proc. (“CCP”) § 2033.280(b).
Cal. Code Civ. Proc. (“CCP”) § 2033.280(a) provides in relevant part that if a party to whom requests for admission are directed “fails to serve a timely response,” the party to whom the requests are directed waives any objection. CCP § 2033.280(b) provides that “[t]he requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted”. CCP § 2033.280(c) provides that the court “shall make this order” unless it finds that the party to whom the requests have been directed has served a proposed response in substantial compliance with section 2033.220 before the hearing on the motion.
The Motion is accompanied by proofs of service showing that service of the moving papers was timely made on Defendant. The Motion is unopposed. Plaintiff served the request for admission on January 11, 2021, and Defendant served no response. The Motion is therefore GRANTED. The truth of the matters set forth in Plaintiff’s First Set of Requests for Admission (Plaintiff’s Counsel Decl. Ex. A) are deemed admitted. CCP § 2033.280(b).
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-268177, Somerville v. Scott:
Motions are dropped from calendar at the request of moving party.
4.         SCV-268964, Barker v. Zatman:
Plaintiffs Colin Barker and Brenda Barker (“Plaintiffs”) initiated this action and filed the presently operative first amended complaint against defendants Murray Zatman (“Defendant Murray”) and Simona Zatman (together “Defendants”) with causes of action for breach of fiduciary duty, two counts of breach of contract, unjust enrichment, constructive trust, conversion, equitable lien, and accounting (the “FAC”). This matter is on calendar for the Plaintiffs’ motion for sanctions against Defendants and their counsel under Code of Civil Procedure (“CCP”) §§ 128.5 and 128.7. The motion is DENIED.
I.                    Facts and Procedure
The FAC alleges that Defendants misappropriated funds due to the Plaintiffs as a result of a bequeathal, and subsequent loan to Defendant Murray. Plaintiffs retained Carle, Mackie, Powers, and Ross, LLP, (“CMPR”) and particularly Dawn Ross (“Ms. Ross”) to pursue their claims for recovery. Ms. Ross contacted Defendants in order to attempt settling the matter prior to filing. The alleged contents of this conversation were eventually incorporated into the FAC. Ms. Ross is no longer representing Plaintiffs as of February 2022, and James Sansone (“Mr. Sansone”) has taken over as counsel of record on this case, also with CMPR.
Defendants, by and through their counsel, filed a motion to disqualify Ms. Ross, Mr. Sansone, and CMPR as a whole on November 30, 2021. Plaintiffs served the instant motion to Defendants on January 11, 2022, requesting sanctions for the frivolity of the disqualification motion. The copy of the motion served to Defendants did not contain any information regarding the hearing date on the motion at the time of service, per Sonoma County Local Rule 5.1 (b). Defendants did not withdraw or amend their motion within the 21 days after January 11, 2022. Plaintiffs filed the instant motion February 14, 2022, and that day re-served Defendants with the notice of motion containing the April 27, 2022 court date. Defendants amended their motion for disqualification on February 18, 2022.
Defendants have filed an unopposed Request for Judicial Notice, which is GRANTED.
Defendants’ objections are OVERRULED for being both defective in format and not stating cognizable objections.
II.                 Governing Authorities
§ 128.5. Frivolous actions or delaying tactics; order for payment of expenses; punitive damages
(a) Every trial court may order a party, the party's attorney, or both to pay any reasonable expenses, including attorney's fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay….
(b) For purposes of this section:
(1) “Actions or tactics” include, but are not limited to, the making or opposing of motions or the filing and service of a complaint or cross-complaint only if the actions or tactics arise from a complaint filed, or a proceeding initiated, on or before December 31, 1994. The mere filing of a complaint without service thereof on an opposing party does not constitute “actions or tactics” for purposes of this section.
(2) “Frivolous” means (A) totally and completely without merit or (B) for the sole purpose of harassing an opposing party.
CCP Sec. 128.7(b) states:
“By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met:
(1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
(2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.
(3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
(4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.”
Subsection(c) provides: “If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation. In determining what sanctions, if any, should be ordered, the court shall consider whether a party seeking sanctions has exercised due diligence.”
A party seeking sanctions pursuant to CCP §§ 128.5 and 128.7 must first, before filing the motion, serve the offending party with a motion for sanctions commencing a 21-day “safe harbor” period during which the offending party may withdraw or correct the improper pleading and avoid sanctions. CCP §§ 125 (f)(1)(B) & 128.7 (c)(1). If the pleading is not withdrawn during the “safe harbor” period, the motion for sanctions may be filed. Malovec v Hamrell (1999) 70 Cal. App. 4th 434, 440.
Both CCP § 128.5 (f)(1)(B) and CCP § 128.7 (c)(1) require that the motion for sanctions be served in compliance with CCP § 1010 twenty-one days before filing. Per CCP § 1010, “(n)otices must be in writing, and the notice of a motion, other than for a new trial, must state when, and the grounds upon which it will be made, and the papers, if any, upon which it is to be based.” “Section 128.7's incorporation of section 1010 is compulsory, not permissive.” Galleria Plus, Inc. v. Hanmi Bank (2009) 179 Cal.App.4th 535, 538 (“Galleria”). A CCP § 128.7 motion served to the responding party must include the date the motion would be made, or it is fatally defective. Id.
III.              The Motion is Fatally Defective
Plaintiffs proffer that Sonoma County Local Rule 5.1(b), which establishes that the clerk shall assign court dates to civil motions upon filing, creates a technical impossibility to serve the sanctions motion with a hearing date before filing. Therefore, Plaintiffs contends that their service of the motion with no date noted was valid. Defendants accurately point out that there are a number of procedural methods by which Plaintiffs could have obtained a hearing date for their motion in order to serve it in compliance with the safe harbor provisions, while maintaining compliance with the Local Rule.
Plaintiffs’ attempts to distinguish from Galleria, supra, 179 Cal.App.4th 535 are unsuccessful. The facts in this case are insufficiently distinguishable from Galleria to render it inapplicable. In Galleria, the copy of the notice of motion served to start the safe-harbor period contained no notice of the date of the hearing, but instead stated that the hearing would occur on “AAA at BBB”. Id. at 537. The notice included that the sanctions motion could be filed “on and after May 23. Id. The motion was re-served after filing and assignment of a date and time by the court at the conclusion of the safe harbor period. Id. The court of appeal found that the utilization of “AAA at BBB” rendered the motion fatally defective due to its failure to comply with CCP § 1010. Id. at 538. CCP § 1010 requires that motions state when motions will be made, and a failure to provide when a motion will be made renders it fatally defective. Id. at 537-538.
Plaintiffs further assert that in Galleria, the notice of motion was the only document served. Plaintiff doesn’t provide a pin cite to this contention. Only serving the notice of motion would be a plain deficiency under CCP § 1010 without considering the issue of the failure to include the time of hearing, and this is not mentioned by the court of appeal. Therefore, this assertion does not appear to be supported by the case.
The fact that Plaintiffs have not included any date on the notice of motion when it was served to Defendants on January 11, 2022 is dispositive of their motion. The copy of motion served on Defendants contained no date informing Defendants when Plaintiffs would move the court for sanctions. This omission undercuts the remedial purpose of the statute by ignoring its strict notice provisions. See Galleria, supra, 179 Cal.App.4th 535, 538. Notice served under CCP §§ 128.5 (f)(1)(B) and CCP § 128.7 (c)(1) must comply with CCP § 1010. Failure to include this information is fatal defect, and the motion must be denied. Galleria, supra, 179 Cal.App.4th 535, 537-538. The Plaintiff’s request for sanctions is DENIED.
Defendants’ request for sanctions under CCP § 128.5 is found unwarranted. The Court finds substance to the underlying motion despite its procedural defect. The procedural complication presented by Local Rule 5.1 was unforeseen and Plaintiffs had substantial justification for their position. As a result, awarding Defendants attorneys fees is unwarranted. Therefore, Defendants’ motion for sanctions under CCP § 128.5 is DENIED.
Defendants’ 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).
5.         SCV-269832, Klonsky v. State Farm Mutual Auto Insurance Company:
A dismissal with prejudice having been filed in this case on June 17, 2022, this matter is dropped from calendar as MOOT.
6.         SCV-270053, Friends of Northwest Sebastopol v. City of Sebastopol:
Petitioner’s Petition for Writ of Mandamus is DENIED.
History and Facts
1.      Procedural History
On January 21, 2022, Friends of Northwest Sebastopol (“Friends”) filed a Petition for Writ of Administrative Mandamus against the City of Sebastopol (“City”) and Real Parties in Interest Sonoma Applied Village Services (“SAVS”) and St. Vincent De Paul District Council of Sonoma County Incorporated (“St. Vincent De Paul”). (Petition, ¶¶1-2.) Friends is a California nonprofit, representing the interests of homeowners and renters, parents of school children, business owners and operators, and property owners in the Sebastopol area. (Amended Petition, ¶6.) On February 10, 2022, Friends filed an Amended Petition for Writ of Mandamus pursuant to Code of Civil Procedure sections 1095.4 and 1085.
The Amended Petition asserts “[c]urrently and for the past several years, an illegal RV encampment has been settled on the public street and sidewalks on Morris Street in the City,” leading to “significant public health and safety threats….” (Amended Petition, ¶¶13-14.) The Amended Petition challenges the operation of “an encampment for campers, trailers and other recreational vehicles” (“RV Village”) at 845 Gravenstein Highway in the City (“Site”) which has been established, in part, as a response to Morris Street. (See Petition, ¶¶1-2.)
The Amended Petition alleges “[a]ll of the illegal activities and other harms and threats of harm to public safety and health currently occurring at the Morris Street RV encampment will be imposed on members of Friends and other neighbors of the Site…” and requests this Court order “the City to set aside its decision or require the real parties obtain a use permit or variance—or else abandon the RV project.” (Amended Petition, ¶33; Memorandum in Support of Motion for Writ of Mandamus, 4:11-13.) The Amended Petition alleged four causes of action.
First, Friends seek an administrative writ of mandate, claiming the Zoning Code forbids living in recreational vehicles anywhere within the City limits, that the RV Village is not in conformity with or consistent with the Zoning Code because it is not a “homeless shelter,” and no variance from the Zoning Code was sought or granted for the RV Village.
In its second cause of action seeking an administrative writ of mandate, Friends alleges the City issued the approval of the Site without SAVS having filed a permit or other land use application with the City’s Planning Department, as required by Zoning Code. (See Code section 17.400.030(A).) According to Friends, the RV Village was approved and permitted by the City Council without the City Planning Department preparing and issuing an analysis and report required by Zoning Code as a prerequisite to the grant of a land use permit. (See Code section 17.400.030(D).)
In its third cause of action seeking an administrative writ of mandate, Friends asserts the City issued its approval without providing written notice in the manner required by the Zoning Code. Friends asserts that this resulted in many residents and businesses in the neighborhood not being able to meaningfully participate in the City Council’s hearing before the decision. (See Zoning Code sections 17.400.050; 17.460.020; table 17.400-2.)
Finally, Friends seeks a traditional writ of mandate and claims it should be issued because the City allowed an RV Village without a use permit or variance, in violation of the Zoning Code.
On March 15, 2022, the City filed an Answer denying, generally and specifically, the allegations made by Friends in the Amended Petition and asserting several affirmative defenses, including failure to exhaust administrative remedies. (Answer, 10:22-26.) On April 15, 2022, the City filed an opposition to the Amended Petition. On April 20, 2022, Friends filed a reply.
On February 1, 2022, Friends filed an Ex Parte Application for Alternative Writ of Administrative Mandamus, which was opposed by the City. The Ex Parte Application was denied by the Court. 
2.      Summary of Facts
The Site is owned by St. Vincent De Paul, and the RV Village is operated by SAVS. (Opposition, 7:20-21.) The Site is located in the City in a district that is zoned for General Commercial use. (Amended Petition, ¶13; Record, pp. 278-280.) There is an operating agreement between the City and SAVS, under which the City agrees to reimburse SAVS $5,000.00 per month for rent payments for use of the Site. (Opposition, 8:15-18; Record, pp. 18-20.) According to the operating agreement, SAVS began operations on the Site on January 1, 2022. (Record, p. 18.)
On November 30, 2021, a Special Meeting of the City Council was held online. (“Special Meeting.”) (Record, p. 1.) Several Friends members attended the Special Meeting. (Amended Petition, ¶24.) At the Special Meeting the City Council passed a motion to “approve … the use of 845 Gravenstein Highway North as a site for the temporary RV village[.]” (Amended Petition, ¶15.) In separate motions, the City Council also declared a shelter crisis in the City and approved a memorandum of understanding between the City and SAVS. (See Amended Petition, ¶15; Record, pp. 337-344.)
Prior to the Special Meeting, the City’s Planning Director, Kari Svanstrom, (“Planning Director”) issued a memorandum dated November 18, 2021, in which she stated the RV Village would qualify as a “homeless shelter” under the City’s Zoning Code. (Record, pp. 278-280.)
In December 2021, counsel of Friends testified at a City Council meeting “to request the City Council’s reconsideration of the matter and to note that the proposed use violates the Zoning Code.” (Amended Petition, ¶29.)
The City asserts in its Answer that Friends has failed exhaust administrative remedies before filing this action. (Answer, 10:22-26.) When an administrative remedy is provided by statute or rule, a petitioner must generally seek relief from the administrative body and exhaust this remedy before a court may act on the matter, meaning exhaustion of the administrative remedy is a jurisdictional prerequisite to resorting to the courts, not a matter of judicial discretion. (Plantier v. Ramona Mun. Water Dist. (2019) 7 Cal.5th 372, 382; Williams & Fickett v. County of Fresno (2017) 2 Cal.5th 1258, 1264; 1267–1268; Public Employees’ Retirement Sys. v. Santa Clara Valley Transp. Auth. (2018) 23 Cal.App.5th 1040, 1046 [this absence of subject matter jurisdiction is not a defense that a party may waive]; Ramirez v Tulare County Dist. Attorney's Office (2017) 9 Cal.App.5th 911, 930 [there is nothing judge may do until administrative procedure has been invoked and completed].)
The exhaustion requirement applies even when the administrative remedy is phrased in permissive language. (City of Grass Valley v. Cohen (2017) 17 Cal.5th 567, 577.) Cases have also inferred an exhaustion requirement even within statutory schemes that do not make the exhaustion of an administrative remedy a condition of a party’s right to resort to the courts.[1] (Williams & Fickett, supra, 2 Cal.5th at 1271.)
A corollary principle to the doctrine that administrative remedies must be exhausted is that a petitioner must fully present all of the petitioner’s arguments and evidence at the administrative hearing. (Sustainability, Parks, Recycling & Wildlife Defense Fund v. Department of Resources Recycling & Recovery (2019) 34 Cal.App.5th 676, 695-696; Contractors’ State License Bd., supra, 28 Cal.App.5th at 779.) Before seeking judicial review, a petitioner must show that the petitioner made a full presentation to the administrative agency on all issues in the case and at all prescribed stages of the administrative proceedings. (City of San Jose v. Operating Eng’rs Local Union No. 3 (2010) 49 Cal.4th 597, 609; see also Contractors’ State License Bd., supra, 28 Cal.App.5th at 779.
There are multiple policy grounds for requiring the exhaustion of administrative remedies before resorting to the courts. (See Plantier, supra, 7 Cal.5th at 383.) One of which is that requiring a party to pursue an available administrative remedy aids in the court’s review by allowing the agency to draw upon its expertise and develop a factual record for the court’s consideration. (See Plantier, supra, 7 Cal.5th at 383; see also Contractors’ State License Bd. v. Superior Court (2018) 28 Cal.App.5th 771, 779 [one reason for requiring presentation of the entire case to the administrative agency is that judicial review under Code of Civil Procedure section 1094.5 is confined to the issues properly raised before the agency.].)
The City’s Zoning Code is in Title 17 of the City’s Municipal Code, adopted October 16, 2018. Chapter 17.455 of the Zoning Code sets forth an “Appeal Procedure.” Zoning Code section 17.455.010 sets forth the purpose of the appeal procedure. It states “[t]he purpose of these provisions is to prescribe the procedure by which an appeal may be taken to the Planning Commission or Design Review Board, from any administrative determination or interpretation made by City staff under the Zoning Code, or to the City Council, from a determination or interpretation made by the Planning Commission or Design Review Board, under the Zoning Code. This procedure shall apply to all appeals from such determinations and interpretations.” (Zoning Code section 17.455.010.) Zoning Code section 17.455.020 sets forth the procedure of the appeal. It states, in relevant part, “[a]n appeal may be taken to the Planning Commission by an applicant or any interested party, from any administrative determination or interpretation made by City staff under the Zoning Code, except for matters relating to an application for design review or sign review…” and “[a]n appeal filed pursuant to subsection (A) (1) or (2) of this section shall be filed with the Planning Department.” Zoning Code section 17.455.030(B) further allows an interested party to appeal the decision of the Planning Commission to the City Council, which will render its decision within 30 days of the hearing of the appeal.
Based on the administrative record before this Court, none of the above appeal procedures were completed by Friends to dispute the Planning Director’s interpretation and application of the Zoning Code that it has challenged in the Amended Petition. Therefore, the arguments set forth in this Petition have not been considered by the City by way of their available appeals processes. While there are certain exceptions to the requirement Friends exhaust administrative remedies before bringing this action to the courts, it is Friends’ burden to establish an exception applies, which they have not done here.
Accordingly, the Court finds Friends failed to exhaust administrative remedies before requesting the Court act on the matter. The Petition is DENIED in its entirety.
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).

[1] The doctrine of exhaustion of administrative remedies is not without certain exceptions, however, a petitioner that is claiming an exception has the burden of establishing the exception. (See Electric Refund Cases (2010) 184 Cal.App.4th 1490, 1503-1504; see also Public Employees' Retirement Sys., supra, 23 Cal.5th at 1048.)
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