Dec 18, 2014

TENTATIVE RULINGS

LAW & MOTION CALENDAR

Wednesday, December 10, 2014, 3:00 p.m.

Courtroom 17 – Hon. Gary Nadler

3035 Cleveland Avenue, Santa Rosa, California

 

 


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, December 9, 2014. Parties in small claims cases and motions for claims of exemption are exempt from this requirement.

 

 

1. MSC-184353, Simmons v. Fonseca
Plaintiff’s motion to vacate dismissal is continued to Wed., Jan. 14, 2015, at 3:00 p.m. Plaintiff may appear telephonically through CourtCall by contacting CourtCall directly at (888) 882-6878.


2. SCV-251977, Cruz v. Petaluma Acquisition, LLC
DROPPED at the request of counsel for moving parties.


3. SCV-253530, Metcalf v. Associated Insulation of California
Plaintiffs’ motion to reopen discovery for the limited purpose of taking the deposition of Barry Horn, M.D. prior to trial is granted. Plaintiffs argue that Dr. Horn was not available to be deposed prior to the discovery cut-off for experts, and although Defendants agreed to conduct the deposition on November 3, 2014, other Defendants subsequently objected based on the fact that the deposition would be after the cut-off and the then-scheduled trial date. Bickering between counsel followed and some Defendants withdrew their agreement. The court finds good cause to reopen discovery for this limited purpose.


4. SCV-253914, Garcia v. 23 Bottles of Beer, LLC
Plaintiff’s motion to strike or tax Defendants’ costs is granted as follows:

Item 1a: Defendants shall be allowed $870 for filing fees. The motion is otherwise granted.

Item 1b: Defendants shall be allowed the filing fee of $530 and $13.95 for courtesy copies. The motion is otherwise granted.

Items 1c and 1d: The motion is denied.

There is no opposition to Items 1e and 1f.

Item 5: The motion to strike is granted; the allowable cost is $35.

Item 6: The motion is granted.


5. SCV-254320, Alden v. Alden
DROPPED at the request of counsel for moving party.


6. SCV-254361, Llamas v. Rodgers
Plaintiffs’ motion that matters specified in request for admissions be deemed admitted and imposing monetary sanctions is granted. If Defendant Howard Rodgers provides admissible evidence which demonstrates service of proper, complete responses by the time of the hearing, the court may find that the admissions are not deemed admitted. Either way, sanctions of $410 are awarded to the Plaintiffs.


7. SCV-254443, Sanchez v. Constellation Brands US Operations, Inc.
Plaintiff’s motion to amend complaint is granted.


8. SCV-255032, Cooper v. Escamilla-Martinez
DROPPED at the request of counsel for moving party


9. SCV-255046, Kaneko v. Jovel-Miyazaki
Defendant Dawn Jovel-Miyazaki’s demurrer to Plaintiff’s first amended complaint is overruled. The first amended complaint adequately, if barely, pleads delayed discovery or tolling or estoppel due to Defendants’ alleged repeated promises and concealment of information. It is not clear that Plaintiff knew of anything other than a simple dispute, rather than actual wrongdoing, prior to August 2012. Plaintiff adequately pleads with specificity fraud and elder abuse. Plaintiff pleads a fiduciary relationship based on the financial and property dealings between the parties, and Defendant’s control of records and other information, in addition to the family relationship. Plaintiff alleges and attaches at least two written documents from Defendant showing an agreement or promise to pay Plaintiff money owed for Plaintiff’s investment or expenses and loan from Plaintiff.

The motion to strike is granted in part and denied in part. The motion is granted without leave to amend as to the request for special damages for breach of contract, punitive damages specifically for the breach of the covenant of good faith and fair dealing, and any claim for attorney’s fees. It is denied as to the cause of action for financial elder abuse since that is simply a modification of the cause of action in the original complaint which Plaintiff called financial abuse and the two are the same cause of action.

Defendant shall file an answer to the first amended 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.


10. SCV-255416, Andrews v. Ani
Defendant’s demurrer to Plaintiff’s complaint is overruled.

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.


11. SCV-255423, Cordova v. Anchor General Insurance Agency, Inc.
Defendants Anchor General Insurance Company and Anchor General Insurance Agency, Inc.’s demurrer to Plaintiffs’ complaint is overruled.

The allegations do not make it clear that Swank assigned all of his rights regarding the cause of action for breach of the covenant of good faith and fair dealing, indicating that he in fact retained his rights for punitive and other damages beyond breach of the contract. The allegations do not indicate that Swank assigned any possible cause of action for intentional infliction of emotional distress and in fact indicate that he did not assign such a cause of action. Even if the Cordovas may not be able to maintain the second and fourth causes of action on the basis that Defendants were required to pay the full judgment, they may maintain these to the extent that they claim Defendants failed to pay the full amount of costs which they were obligated to pay. The third cause of action, in contrast to Defendants’ arguments, is based not on the alleged failure to pay the full judgment but on Defendants’ alleged breach of contract as to Swank, which Swank assigned to the Cordovas. Without the judicial notice which Defendants have requested, nothing demonstrates that the “agency” Defendant is merely a broker who would not be liable for the alleged breaches of the policy terms.

The request for judicial notice is denied. Although the record presented would be judicially noticeable as an official government record, Defendants fail to provide evidence demonstrating that it is in fact such a record.

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

Defendants are to serve the notice of entry of this order within 5 days of this order.


12. SCV-255645, Dale v. Sonoma County DA
DROPPED at the request of counsel for moving party.


13. SCV-256191, Bean v. Wells Fargo Bank, N.A.
CONTINUED to Mon., Jan. 26, 2015, at 10:00 a.m. pursuant to the stipulation and order filed 12/8/14.

 

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