Jul 29, 2015

Wednesday, July 22, 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, July 21, 2015. Parties in small claims cases and motions for claims of exemption are exempt from this requirement.





1.  MCV-193858, GCFS, Inc. v. Gerolaga

Appearance required.



2.  MSC-185199, Federico v. Synan

Appearances are required with regard to Gary Federico’s motion to vacate default judgment.



3.  SCV-230846, Hogan v. DeAngelis

Ronald and Victoria Hogan (“Hogans”) move for an order requiring the court clerk to release funds deposited to pay the $65,000 judgement entered after a jury trial in 2007.  As noted in the motion, counsel for the Engstrom Defendants “deposited $81,972.73 in the Hogans’ names in November 2009 to cover the principal of $65,000 awarded by the jury plus legal interest to the date of deposit for a total deposit of $81,972.73.”  This motion was filed on July 15, 2015.  The Hogans threaten that absent such order, they will need to name the Engstrom Defendants as Defendants in another action.


The purchase of the Gardenview Place home, which ultimately became the cornerstone of this extraordinarily protracted litigation, occurred in 2000.  The Hogans, as purchasers, sued the developers and the real estate agents, Clayton and Mary Engstrom (“Engstroms”).  Ultimately, the Gardenview Place home sale was rescinded.  After trial, the jury determined that the DeAngelis Defendants (developers) were required to assume the balance of the mortgage obligations on the property.


Notwithstanding the course of these protracted legal maneuverings, the Hogans retained possession of the property through most of this litigation.  Numerous appeals were taken, some still pending.  However, the Court of Appeal, in its filed opinion dated April 18, 2012, stated unequivocally that the payment of any consequential damages to the Hogans is conditioned on the return of the Gardenview property by the Hogans.  Incredibly, this never occurred.


This court has an obligation to determine whether the rescission underlying the action for relief based on rescission was effectual.  If not, the court is authorized to provide alternate relief.  Civil Code section 1692.


Counsel for the Engstroms, Edward McCutchan, concludes in his declaration that the Gardenview property “was lost by the Hogans in a non-judicial foreclosure sale within the past year.”  In reply, Ronald Hogan provides a declaration in which, at paragraph 21, he states that the “issue of ownership is currently under appeal in the First District Court of Appeal case number A142702.”  The court does note that the Hogans’ pleadings state an address other than the Gardenview Place address.


The Engstroms’ objections to the Ronald Hogan declaration are overruled, as they are nothing more than substantive arguments.


The Engstroms’ request for judicial notice is granted.


The parties shall provide evidence, properly supported by declaration or some other manner, supporting the current status of ownership and also, addressing the issue of responsibility for payment of the mortgage and resulting foreclosure.  Points and authorities may be filed, in a format permitted under the California Rules of Court, not to exceed five pages in length.  These papers must be filed in the clerk’s office no later than 3:30 p.m. on July 31, 2015.  Any opposition shall be filed in the clerk’s office no later than 3:30 p.m. on August 7, 2015, and shall not exceed five pages in length.  There shall be no reply permitted.  Courtesy copies of all pleadings shall be submitted directly to the Department 17 clerk no later than the day each such filing is required.  There shall be no further oral argument with regard to the supplemental filings ordered herein.


The matter will be deemed submitted on August 7, 2015.



4.  SCV-251594, Summit State Bank v. Kalia

Cross-Complainants Inderjit Kalia, Joy Mukherji and Valley of the Moon move to compel AMCO’s former attorney, Sandra Stone, to answer deposition questions.


AMCO argues that it has no intention of calling Ms. Stone as a witness, and that it will not use Ms. Stone's testimony in any way to defend or prosecute claims.  The problem presented, however, is that Ms. Stone's testimony has already been presented in the former for declaration executed on November 21, 2014.  Having provided such testimony, the general issue presented here is whether Ms. Stone may be further deposed as to the subject matter presented in the Cross-Complainants’ motion.


A review of the November 21, 2014 declaration reveals, inter alia, the following.  Ms. Stone was retained by AMCO on June 4, 2013 to defend AMCO.  In her declaration, attorney Stone reviewed information provided by her client pertaining to benefits sought by Cross-Complainants; her knowledge of numerous pleadings which she was not in possession of; requests that she made to "various parties" to obtain the pleadings; that she was not able to obtain these pleadings until October 2013; enter discovery "at some point" of Cross-Complainants’ bankruptcy.  Ms. Stone further testified in her declaration as to being advised in June 2013 of an outstanding payment owed under the insurance policies provision for loss of business income to Cross-Complainants, and as to disagreements regarding to whom the checks should be made payable and related information.


Ms. Stone testified as to communications that she had between June 2013 and the end of November 2013 with attorneys for "Joint Payees” and as to certain disagreements which led to AMCO’s inability to issue the payments purportedly due.  Further, she testified through her declaration as to her knowledge of additional checks that were issued by her client to the "Joint Payees.”  Ms. Stone testified regarding her knowledge of various materials that she either had, or did not have at certain points of time.  Finally, Ms. Stone, at paragraph 13, testified in her declaration that she formed a belief that the information on the insurance application was knowingly false, and that she did not believe that she had possession of the final insurance application that was submitted.


The declaration of Ms. Stone does not contain recitation of any communications made by, or to, her client.  Generally, with the exception of paragraph 13, Ms. Stone addressed issues of fact.  In paragraph 13, Ms. Stone stated her belief that she did not have the final insurance application.


Based on the foregoing, the court makes the following determinations.  First, there is no general waiver of the attorney-client privilege or the attorney work product protection as between AMCO and its prior attorney, Sandra Stone.  However, the court does find that certain subject matter of the questioning rises to the level of "extremely good cause" for allowing examination of Ms. Stone.  The court will allow questioning as presented in movants’ separate statement as to Nos. 2-3, 5-8, and 12; the court denies the motion as to Nos. 1, 4, and 9-11.


Given the nature of the court's rulings, the request for sanctions is denied.



5.  SCV-253977, Aceves v. Santa Rosa Town Center, LLC

Cross-Defendant Petco Animal Supplies, Inc.’s motion for summary judgment, or alternatively, summary adjudication is denied.


First, although seeking summary adjudication, the notice fails to specify the specific cause of action, affirmative defense, claims for damages or issues of duty sought to be adjudicated.  California Rules of Court, Rule 3.1350(b).  The notice here fails to do so, and as such, the court considers only the motion for summary judgment.


Second, on July 15, 2015, counsel for moving party herein filed a declaration addressing the failure of Cross-Complainant to take Plaintiff’s deposition as previously ordered by the court.  This is in response to the declaration of Scott Buell, counsel for Cross-Complainant.  Code of Civil Procedure section 437c(i) provides that if, “after granting a continuance to allow specified additional discovery, the court determines that the party seeking summary judgment has unreasonably failed to allow the discovery to be conducted, the court shall grant a continuance to permit the discovery to go forward or deny the motion for summary judgment or summary adjudication.  This section does not affect or limit the ability of any party to compel discovery under the Civil Discovery Act . . . .”  The court has reviewed both the Buell and the Levy declarations, and finds the inability to timely pursue the deposition in question to be perplexing at best. Ultimately, after much maneuvering, the deposition was set for April 7, 2015.  Plaintiff, according to Mr. Buell, failed to appear.  On April 29, 2015, in connection with the hearing on this motion, the court continued this hearing to July 22, 2015, and ordered the deposition to be completed by June 30.  Due to what appears to be dilatory conduct on the part of counsel, the deposition was never taken.  No motion to compel was ever filed.  Santa Rosa Town Center provides no explanation whatsoever for the delay. Petco Animal Supplies, Inc. provides a poorly drafted declaration attempting to describe the chain of circumstances involving scheduling of this single deposition.  Upon review, the court determines that that the party seeking summary judgment has not unreasonably failed to allow the discovery to be conducted.  If another continuance is sought, which is not clear, such a continuance is denied.


Moving party has failed to meet its burden of negating an element of, or demonstrating a complete defense to, any cause of action presented against it.  Nothing shows that it was not at fault, that the injury is not one “arising from [Cross-Defendant’s] use of the Premises” or that Defendant/Cross-Complainant was in fact at fault in any way.  The moving party fails to provide a foundation or authentication for its Exhibit F, which it apparently claims contains the purported lease terms, even failing to provide any evidence stating exactly what it claims this document to be.  Even if the moving party were to cure this evidentiary defect, the terms are ambiguous and do not, as a matter of law, necessarily support the interpretation or application which the moving party asserts.  The moving party also fails to show that Defendant’s discovery responses necessarily indicate that it lacks and is not reasonably likely to obtain evidence supporting its claims. 



6.  SCV-254756, Doolan v. Chong

The Sonoma County Junior College District’s demurrer to Plaintiff’s fourth amended complaint is overruled.


The court grants Defendant’s request for judicial notice as to items 2 through 8.


Plaintiff’s fourth amended complaint contains two causes of action and is 71 pages in length.  The previous iteration, the third amended complaint, is 87 pages in length.  While the length of a pleading is not considered with regard to the adequacy of the allegations, the allegations cause this court to engage in a hunt for certain allegations important to the alleged causes of action.  “Pleadings must be reasonably interpreted; they must be read as a whole and each part must be given the meaning that it derives from the context wherein it appears.  All that is necessary as against a general demurrer is to plead facts entitling the plaintiff to some relief.  In determining whether the complaint is sufficient as against the demurrer on the ground that it does not state facts sufficient to constitute a cause of action, the rule is that if one consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged.  In passing upon the sufficiency of a pleading, its allegations must be liberally construed with a view to substantial justice between the parties.”  Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.


Plaintiff has adequately pleaded malice.  The court notes that this was generally present in Plaintiff’s third amended complaint, and is presently alleged sufficiently to support the cause of action.  At paragraph 201, and as generally previously stated at paragraph 199, prior to making the publications, Defendants “met and conferred to discuss the various false allegations”; they “expressly announced that they hated the Plaintiff, that they desired to injure the Plaintiff’s reputation, and that they hoped to make it difficult if not impossible for Plaintiff to find gainful employment”; they hoped “through widespread repetition of false statements regarding the Plaintiff’s job performance” to pressure him to resign and they “acknowledged the falsity of the statements . . . as well as the serious harm . . . , yet they elected to proceed . . . anyways [sic] for the express purpose of destroying Plaintiff’s career.” 


In addition, Plaintiff has adequately stated allegations for coerced self-publication. 


Finally, the court notes that with respect to the Sonoma County Junior College District, the court has already rejected the demurrer to what is now the current second cause of action and that Defendant may not demur to it again.  Even if the court would consider the merits of any such demurrer to that cause of action, it is still unpersuasive for the reasons the court overruled it before.


Despite failing to make it clear in his opposition papers last time, Plaintiff does adequately plead malice in his complaint and this time he clarifies that for the court.  Opposition, 12-14.  As explained in Boyich v. Howell  (1963) 221 Cal.App.2d 801, at 803, it is well established that “[t]o allege only that a statement was ‘maliciously published’ has been held to be insufficient as a mere conclusion.  But pleading that defendants published the article with knowledge of its falsity does adequately allege actual malice.”  [Citations omitted].


Plaintiff argues that Defendants have waived, or may waive, the privilege by claiming that they never made the statements in the first place so that the court must require Defendants to answer.


This argument, based on Russell v. Geis (1967) 251 Cal.App.2d 560, at 566-567, is unpersuasive for the reason that Plaintiff misinterprets the decision and law set forth therein.  In Russell, defendant argued that he never made the statement but that is not what the court contended would negate the privilege.  Rather, defendant also admitted that he did not believe the statements to be true and the court ruled that the privilege “is lost” as a result.  In the court’s own words, “for one to assert the defense of conditional privilege he must believe the defamatory matters to be true.”


Defendants shall serve a proposed order within 5 days of the date of the hearing.  Defendants have 20 days from the date of service of the order to file an answer to Plaintiff’s fourth amended complaint.



7.  SCV-256191, Bean v. Wells Fargo Bank

Wells Fargo Bank, N.A. (“Wells Fargo”) and Deutsche Bank National Trust Company, as Trustee for Morgan Stanley Loan Trust 2005-10 (“DBTC”), referred to here collectively as Defendants unless otherwise stated, demur to the fourth cause of action for negligence and the sixth cause of action for violation of Business and Professions Code section 17200.


Before addressing the merits of the motions, the court expresses its sincere appreciation to the parties, and to the Demurrer Facilitator, for their efforts in attempting resolution of this matter.  The agreements reached significantly narrow the issues to be addressed by this court.


The court sustains the demurrers, with leave to amend, for failure to state a cause of action.


In order to address the issues here raised, the court must identify the conduct alleged to be negligent, as the court must consider this analysis in determining the nature and extent of a duty to Plaintiff, if any.  Lueras v. BAC Home Loans, Inc. (2013) 221 Cal.App.4th 49, 62.  This is challenging as the complaint is rife with conclusions and is unfocused.


Disregarding the alleged conclusions, the complaint alleges that Defendant Wells Fargo failed to communicate with defaulted borrowers regarding alternatives to foreclosure (¶ 7).


Plaintiff alleges that “[b]y holding themselves out to offer loan modification alternatives to foreclosure, and providing a means for the Plaintiff to submit applications and documentation for loan modification alternatives to foreclosure, these Defendants have been under a duty to handle the submission, application, and processing of loan modification documents competently and in a non-negligent manner." (¶ 63). In paragraph 65, Plaintiff alleges acts of negligence which she contends constitute negligence.  These include the failure to abide by industry-standard loan modification duties; failing to accurately calculate a loan modification payment plan; failing to process sensitive financial documentation submitted by Plaintiff; failing to process Plaintiff’s loan modification application documents; and “[v]arious other acts of negligence according to proof.”  Plaintiff incorporated prior allegations, which include that she submitted a loan modification application to Defendants; that Defendants “have failed to consider or have only negligently considered Plaintiff’s complete applications which were submitted for the express review of these Defendants for loan modification purposes.” (¶ 22).  Plaintiff further alleges that although she submitted a completed loan modification application as of May 6, 2014, Defendants “failed to respond meaningfully” and instead continued to pursue the foreclosure process. (¶ 29).


With regard to the fourth cause of action, Defendants essentially assert that ordinarily a lender owes no duty of care to review a borrower in connection with the processing of a loan application.  As such, it is argued that complaints concerning the handling and processing of such an application do not support a claim of negligence as a matter of law.  The elements of a negligence cause of action include the existence of a duty of care owed to the plaintiff, the defendant's breach of that duty, and damages proximately caused thereby.  Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 62.  The general rule is that “a financial institution owes no duty of care to a borrower when the institution's involvement in the loan transaction does not exceed the scope of its conventional role as a mere lender of money.”  Nymark v. Heart Federal Savings & Loan Assn. (1991) 231 Cal.App.3d 1089, 1096.  The offering or consideration of home loan modifications are sufficiently connected to conventional lending transactions as to come within the scope of a bank's conventional role as a mere lender of money.  Lueras, supra, 221 Cal.App.4th 49, 67.


In Alvarez v. BAC Home Loans Servicing, Inc. (2014) 228 Cal.App.4th 941, the court examined the claim of duty.  Plaintiffs there did not allege that defendants owed them a duty to offer or approve a loan modification. Rather, plaintiffs alleged that defendants owed them a duty to exercise reasonable care in the review of their loan modification applications once they had agreed to consider them.  The Alvarez court confirmed that a lender may be liable for breaching a duty of care in handling modification applications.


The court notes that the thrust of the allegations may support a cause of action.  However, if there is a duty which would support a negligence cause of action, it would arise from instances of conduct involving the specific review process of the application.  To the extent that the allegations go to Defendants failure to offer or approve a loan modification, such would not lead to a duty to Plaintiff.


The demurrer to the sixth cause of action is sustained, as the cause of action under Business and Professions Code section 17200 is based on the fourth cause of action in light of the agreement of the parties limiting the scope of these motions.


Plaintiff is granted leave to amend.  Defendants shall serve a proposed order within 5 days of the date of the hearing.  Plaintiff has 20 days from the date of service of the order within which to file an amended complaint.



8.  SCV-256324, Kermaninejad v. Kappos

Plaintiffs’ unopposed motion to amend complaint is granted.


Plaintiff is granted leave to amend.  Defendants shall serve a proposed order within 5 days of the date of the hearing.  Plaintiff has 20 days from the date of service of the order within which to file an amended complaint.



9.  SCV-257024, Godard v. Knight

DROPPED from calendar at the request of counsel for moving party; settlement has been reached.





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