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LAW & MOTION CALENDAR
Wednesday, March 12, 2014, 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, March 11, 2014. Parties in small claims cases and motions for claims of exemption are exempt from this requirement.
1. MCV-199596, Resurgence Financial, LLC v. Zamvil
2. MCV-225643, Collectronics, Inc. v. Guizar
Plaintiff’s Motion for Appointment of Receiver is granted in part. The court hereby appoints Michael Brewer as receiver to enforce the judgment by seizing and selling one of the liquor licenses at issue. In the event that the revenue from that sale is insufficient, once the sale has been completed and the amount determined, Plaintiff may, if it demonstrates a need, bring a new application to the court for appointment of a receiver to sell the other license.
3. MCV-226890, Creditors Trade Association, Inc. v. Nagi
Plaintiff’s motion to compel answers to post judgment discovery is granted. Answers shall be served, verified as required, within 20 days of service of this order. Sanctions in the amount of $660 are awarded to the moving party.
4. MCV-228895, CACH, LLC v. Walton
Due to the continued failure to file a proof of service, the motion is dropped.
5. SCV-246738, STRS Ohio CA Real Estate Investments I, LLC v. Alcal/Arcade Contracting, Inc.
Defendant Brelje & Race’s Demurrer to Plaintiff’s First Amended Complaint (“FAC”) has been CONTINUED to Wed., April 30, 2014, 3:00 p.m., at the request of counsel for moving party.
The Lakes at Fountaingrove, LLC, SR Lakes Corporation, Opus West Construction Corporation, Opus West Corporation, and TRP Santa Rosa-103-Lakes LLC’s Motion for Good Faith Settlement Determination is denied.
With regard to the issue of the rough approximation of the total recovery and settlors’ proportionate liability, Plaintiff is apparently claiming a total estimated repair cost of $29 million, and at least another $7 million in other damages and expenses, for a total of at least $36 million. Opus shows that Plaintiff is seeking roughly $35,500,000. Satran Dec., ¶ 6.
Opus principally argues, as it did previously, claiming that its liability is “zero” because Plaintiff bought the property from Opus “as is” and this expressly governs any latent or apparent defects; Plaintiff expressly agreed in the purchase to release any claims against Opus under Civ. Code § 1542; Opus would therefore prevail in Plaintiff’s claims against it, entitling Opus to recover contractual fees and costs; Opus has agreed to waive its claims for fees and costs; each non-settling party/Cross-Defendant has no valid claims against Opus and instead owe Opus a duty to defend and indemnify. In contrast to the prior motion, Opus now provides evidence supporting its position. Satran Dec., Ex. B, ¶¶ 10.3, 10.4.
In addition, Opus also now claims that its proportionate share of liability, even if it could be liable, would at most be only 4.4% of Plaintiff’s claimed costs of repair, or about $1.273 million; Opus’s settlement has a value of over $3 million when adding the actual payment plus release of settlement funds from other parties, release of claims against Plaintiff for fees and costs, and assignment to Plaintiff of claims Opus holds against Cross-Defendants.
Opus also provides evidence as to its possible share of fault or liability. Its expert purports to estimate the portion of the total cost of repair to which each category of defects amounts (Linden Dec., ¶¶ 10-11); identifies each category which in his opinion Opus could be partly responsible for (Id., ¶¶ 13-14); sets forth his conclusion as to Opus’s percentage of fault for each item (Ibid.); and determines that Opus might be responsible for $1,272,862, about 4.4% of Plaintiff’s cost of repair and 3.64% of the total demand (Id., ¶¶ 13-14). He generally describes his basic approach to determining these various percentages but gives no specific details or explanation. Id., ¶¶ 10-14.
With regard to Opus’s potential liability based on indemnification agreements, the indemnification agreements between Opus and Cross-Defendants offer little in evaluating Opus’s liability. First, it has no direct bearing on Plaintiff’s claims against Opus. Second, Opus’s own evidence demonstrates that the clauses on which it relies only operate to shield Opus from liability for the Cross-Defendants’ fault and expressly state that Opus is not shielded from liability for damages that are determined to have been Opus’s fault. Young Dec., Exs. C-R, Sections 7-8.
With regard to the issue arising from the sale of the property “as is”, Cross-Defendants correctly note that a seller of a new building which the seller had constructed involves implied warranties that the structure was designed and built in a reasonably workmanlike manner. Pollard v. Saxe & Yolles Dev. Co. (1974) 12 Cal.3d 374, 380; East Hilton Drive Homeowners’ Assn. v. Western Real Estate Exchange (1982) 136 Cal.App.3d 630, 632. While, as argued by Opus, in general an “as is” sale shields a seller from liability for defects, as stated in Shapiro v. Hu (1986) 188 Cal.App.3d, 324, 333-334, any sale of property “as is” is a sale of the property in its “present or existing condition”; the use of the phrase “as is” relieves a seller of real property from liability for defects in that condition. The only exception to this principle is when a seller, through fraud or misrepresentation, intentionally conceals material defects not otherwise visible or observable to the buyer. Although not entirely clear, an “as is” sale appears to defeat even those express warranties applying to sellers of new construction. Shapiro v. Hu, at 332, supports this, and Cross-Defendants have provided no authority to the contrary.
Argonaut argues that the clause would shield Opus from liability only for visible, patent defects of which Opus was unaware and it would not shield Opus for defects which Plaintiff could not detect and of which Opus was aware, and which it fraudulently failed to disclose. Defects at issue appear to involve many that are at least may be hidden, latent defects. See FAC, ¶¶ 42, 74, attached as Ex. 7 to Argonaut’s Schneider Dec. Argonaut’s argument fails, though, because Plaintiff never made such a claim.
CJS Plumbing raises a more significant argument, explaining that of all the entities that we lump together as “Opus” and which bring this motion, are addressed as only one entity, The Lakes sold the property “as is” and nothing demonstrates clearly that the “as is” protection necessarily shields the others. The protection appears potentially to apply to affiliates but as CJS argues Opus does not appear to actually demonstrate which if any parties would fall within this aegis. This critical factor weighs against Opus’s motion. The contractual provisions do not necessarily shield the Opus entities from liability, while the showing on proportionate share of fault appears insufficient as it is nothing more than a bare conclusion without any explanation for the bases or method used.
With regard to the issue of the amount paid and recognition that settlor should pay less in settlement, Opus has agreed to pay $425,000, release other settlement funds in escrow, waive costs and fees, and assign claims to Plaintiff. Satran Dec., ¶ 11. It will release $950,000 in settlement funds and waive fees and costs amounting to just over $600,000. Ibid. Opus states, however, that of the $950,000 in settlement funds it is releasing, only $95,000 will be applied to the defects at issue in this action. Satran Dec., ¶ 20. Opus also asserts that the fees and costs it is paying to Plaintiff are “valued at” just over $150,000 “based on the potential likelihood of success in recovering those fees, the costs of pursuing the claim to recover those fees, and the overall goal of resolving the matter ….” Satran Dec., ¶ 21. Opus adds that it and Plaintiff reached the value of the assigned claims against Cross-Defendants to be just over $2 million as a result of negotiation but does not explain the basis for this determination aside from stating this this represents 8% of the total potential value of the claims and that they felt 8% to be a correct valuation. Satran Dec., ¶ 19. Opus claims that the value of its expert work which it is assigning to Plaintiff is just over $558,000, apparently based on the fees charged for the work. Satran Dec., ¶ 22. Of this amount, they assign a value of about $263,000 to the claims on the assumption that some of the work is duplicative. Opponents argue, as before, that Opus is really only paying $425,000, since the other funds are payments from Cross-Defendants and is money which is only to be paid to Opus in order to cover its possible liability to Plaintiff. It is further argued that Opus’s expert fails to explain the bases for his conclusions, and that evidence indicates that Opus has a greater share of liability. They point out that the Opus entities contractually had supervisory responsibility over the entire project, including designing and building it, and over all the subcontractors, not just specific portions of the project. Schneider Dec., ¶ 4, Ex. 3, pg. 1; Fritcher Dec., ¶ 4. The court concludes that this factor weighs against Opus’s motion, and that Opus has not adequately addressed why the amount it is paying is actually as large or proper as it claims.
As for the allocation of settlement proceeds, Opus has assigned an amount to each defect. Opponents point out, however, that Opus still fails to provide any real basis for its list of allocations. The court determines that this element neither leans for nor against granting this motion presently.
As for the financial condition of the parties and insurance limits, the Opus Defendants “are no longer viable” and they have no assets. Satran Dec., ¶ 14; Speaker Dec.; Roberts Dec., ¶ 19; Bittner Dec. While the motion supports the assertion that the entities have no assets and are defunct, it is not clear if all the parties lack assets. Opus shows that only two insurers have accepted tender and of these one insurance policy has a $1 million limit, which Opus admits it has not reached, and another has a $10 million limit that applies after all other applicable insurance policies, including those of the Cross-Defendants, have been exhausted. Satran Dec., ¶ 14, Frazier Dec., ¶ 5, Kreman Dec., ¶¶ 5-6, Gilbert Dec., ¶¶ 4-7. Argonaut points out that in fact the first policy has a total limit of $2 million for three different claims of which this lawsuit is one, and that it is therefore possible that the coverage could extend to $2 million. Opponents correctly point out that Opus does not provide complete evidence on insurance coverage or assets, which the court deems pivotal with regard to the determination of this motion.
The element of collusion or fraud is in dispute. Opus shows that it and Plaintiff settled after years of litigation and negotiation and as a result of more than 22 negotiation-mediation sessions with a third party mediator. Satran Dec. This factor weighs in favor of a determination of good faith.
Based upon consideration of all factors, the court denies the motion. On balance, there has been an insufficient evidentiary showing which would justify granting of the motions.
6. SCV-251123, Halvorsen v. City of Petaluma
Defendants City of Petaluma, Officer Rivera and Officer Wirtz’s Demurrer to Plaintiffs’ Second Amended Complaint is sustained in part and overruled in part. The demurrer is sustained without leave to amend as to causes of action one, three, and six for failure to state a cause of action. The demurrer is overruled as to causes of action two, four, and five.
Plaintiffs, in their second amended complaint, allege that Defendants Officers Rivera and Wirtz, and joined by Officer Frick, responded to the subject dispatch. It is alleged that Officer Wirtz informed Officer Frick that Plaintiffs were troublesome and had recently caused them trouble. It is further alleged that Harold Halvorsen was handcuffed in his home for about 20 minutes during a prior incident by Officer Wirtz’s partner and then released. Plaintiffs allege upon information and belief that as a result of this prior event Officer Wirtz harbored a grudge and ill will feelings against Plaintiffs and informed his fellow officers of this, including Officers Frick and Rivera, on the date of the subject incident. Plaintiffs allege that it is this predetermined attitude that caused the officers named in this amended complaint to act unfairly and unreasonably, causing Officer Rivera to make several false and wrongful assumptions as to identity and as to Plaintiffs’ legal right to continued possession of the premises. Plaintiffs further alleged that due to these wrongful and false conclusions, Officer Rivera threatened to arrest Plaintiffs for trespass unless they removed themselves and their possessions within two hours. Later, according to the allegations contained in the second amended complaint, Plaintiffs allege that Officers Rivera and Wirtz ran up each side of the property from the street with guns drawn and pointed downward.
For pleading purposes, the evidence stated supports the causes of action noted above.
7. SCV-251915, Minick v. City of Petaluma
Defendant West Marin Senior Services (“WMSS”) Motion for Summary Judgment Against Defendant/Cross-Complainant City of Petaluma (“City”):
The motion of WMSS is denied.
Preliminarily, every cause of action which City alleges, with the exception of the third cause of action for negligence, is expressly and solely based on the claim that WMSS is liable due to its failure to obtain a required permit for the event, and on the related obligation to obtain insurance covering the City. The third cause of action for negligence is based on the allegation that WMSS negligently operated and inspected the event route.
WMSS presents evidence showing that it tried to obtain proper permits; it properly obtained relevant permits from other applicable entities; it advised City’s Public Bicycle Liaison and Engineer Bates of the event and asked what was needed for the event; Bates asked City’s Assistant Planner Rose about the need for a permit; Rose never responded to that question; WMSS advised Rose of the event and its details; Rose responded to that latter WMSS e-mail and explained that he had forwarded the information to City’s Assistant Planning Manager and that he would be sure to let WMSS know if the event needed “any additional review (or a zoning permit)”; WMSS did not hear back, thus believing that no additional action or review was necessary.
City shows that its ordinance required an event permit; and Bates, its own Public Bicycle Liaison and employee, referred to the permit as a “zoning permit” in asking Rose if a permit was needed.
The motion is persuasive, at least with respect to all claims based on failure to obtain a permit. The evidence is clear that WMSS did try to obtain the required permits, and repeatedly put City on notice of the event. It is also clear that although the initial request referred to a “zoning permit,” it was City’s own employee who used that term, and that WMSS simply asked very broadly what it needed for the event. It is undisputed that WMSS expressly described the event to City’s Public Bicycle Liaison and its Assistant Engineer; City’s Assistant Engineer promised expressly to advise WMSS if the event required “additional review” or a “zoning permit” and never responded further. Thus, the undisputed facts make it clear that WMSS properly asked what it needed and sought what was needed, and put City fully on notice of the event details. Since WMSS clearly asked City what was required to proceed with the event and City promised to tell WMSS if anything was needed but failed to do so, WMSS cannot be held liable as a result of failing to obtain the required permit.
Similarly, City’s claim that WMSS failed to obtain insurance is related to the conduct of City in response to WMSS’ inquiries.
As for the negligence cause of action, WMSS argues that the City has exclusive control over the streets and cannot avoid liability for its failure to fulfill its duties. WMSS apparently laid out the route and there is a possibility that it was negligent in doing so, even if the City was negligent as well. The undisputed facts demonstrate that the moving party asked City broadly for anything it needed to do in order to conduct the event and put City on notice of the events and its details, only City employees referred to the applicable permit as a “zoning permit” and they advised moving party that City would inform moving party if it needed “any additional review (or a zoning permit)”; and City never provided any additional information to moving party after that. Facts 1-18; Opposition Facts 1-10.
WMSS fails to present any evidence that would dispose of the third cause of action for negligence, thus preventing this court to dispose of that cause of action. In this cause of action, City alleges that WMSS “carelessly and negligently designed, inspected, and managed the [race] so as to create an increased risk of harm of injury to the participants in the race." In opposition, City presents evidence in support of the “disputed fact” that WMSS created the event route, but did not inspect the route prior to the event, and failed to attempt identification of any dangerous conditions prior to the event. This “fact” is undisputed. The issue then is whether as a matter of law there is a common law duty supporting negligence tort liability against WMSS for its failure to inspect the race course roadway surface. This is distinguished from the City’s duty to maintain the streets. Rather, the issue is whether WMSS had a legal duty to inspect the race route in order to avoid dangerous conditions existing at the time of the race.
WMSS asserts that, as to the third cause of action, City cannot avoid its duty to maintain its streets. However, nothing it provides supports that it cannot be liable for negligence if it negligently designs a route to include dangerous conditions and imposing such liability does not necessarily allow a city to avoid its duty to maintain its streets. Accordingly, as there is a legal basis for a determination of the existence of a duty, summary judgment is denied.
City of Petaluma’s Motion For Summary Judgment Against Plaintiff:
City moves “for summary judgment against Plaintiff Chris Minick on the following issue: Defendant is entitled to judgment with respect to Plaintiff’s only cause of action for dangerous condition of public property.”
City’s objections to the Dunlap declaration are sustained as to objections 2 and 3; the remaining objections are overruled. The court notes that this declaration fails to comply with the California Rules of Court. Specifically, the declaration includes exhibits as to which there are no separating tabs. In addition to its failure to comply with applicable rules, such failure creates difficulties for the court in its efforts to evaluate the motion and opposition.
Plaintiff objects to certain evidence offered by City in support of its motion. There are 3 objections, covering 5 pages. With respect to the first objection, the basis is that it is irrelevant, lacks foundation, and calls for speculation. This objection is overruled. First, it is ludicrous to argue that the location of the incident is irrelevant. Second, the fact offered is that Plaintiff cannot recall the exact location of the incident. An argument that the deposition portion offered lacks foundation is without substance. Likewise, the argument that Plaintiff is speculating that he cannot recall the exact location of the incident is likewise without any basis whatsoever. The section after this section follows with multiple pages of argument that have nothing to do with proper objections to evidence. Rather, such arguments should be limited to the separate statement and points and authorities. As to objection 2, the only basis for this objection is that it is irrelevant whether Plaintiff knew of the risk of encountering dangerous conditions of the roadway. That is overruled. With respect to objection 3, Plaintiff again asserts that the asserted fact is irrelevant. Likely, Plaintiff asserts an improper objection as the purported explanation which follows potentially points to another proper objection. In any event, each objection is overruled. The court notes that the lengthy explanations contained in each of these objections are improper and not in conformance with applicable law and Rules of Court.
In City’s motion against Plaintiff, the facts are essentially undisputed. City’s facts show that Plaintiff was in the event, an organized bicycle race; the accident took place on Western Avenue near Hill Drive in Petaluma; Plaintiff is not certain exactly what caused the accident because he did not see it or could not remember it; City had no actual notice prior to the accident of a dangerous condition; City had not performed only street repairs on the area in at least 5 years; Plaintiff signed a waiver with WMSS that applied to, and released, WMSS; and Plaintiff knew of the risk of cracks and dangerous conditions in the roads.
Plaintiff does not dispute these facts, but shows that although he does not know exactly what caused the accident, that the street segment is cracked. Plaintiff’s expert opines that the cracks are dangerous for bicycles; City’s own records show that it previously knew that the specific street segment was cracked and in need of repair because it recorded the issue; City could have inspected the area as it has done on other events and City could have taken measures to make the area safer.
City fails to show that no dangerous condition caused the accident, but does show that it had no actual notice of the condition. This alone is insufficient for City to avoid liability. Further, Plaintiff raises material issues in that he expressly shows that City did have prior notice of the condition, and that the specific location is dangerous and cracked.
City argues that Plaintiff expressly assumed the risk by virtue of his agreement with WMSS. However, as Plaintiff argues, this agreement only applies to WMSS, sponsors, and event organizers. The agreement does not apply to the City, which was not a party to it and was not mentioned in the agreement/waiver/release.
City next argues that Plaintiff impliedly assumed the risk of the activity. However, the doctrine only mandates assumption of risk of normal risks inherent in the events and does not apply to injuries resulting from wrongdoing that is beyond the scope or risks of the event or which increases the risks. The risk of falling from a bicycle is inherent in the sport. However, the increased risk caused by improper and negligent maintenance of a roadway is outside of the anticipated risk.
Finally, City argues that Gov. Code § 831.7 shields it from liability for injuries occurring in bicycle races. Here, the facts presented do not shield City from liability. Contrary to Plaintiff’s arguments, the statute does appear to apply to the type of event here, bicycle racing, because the exclusion for bicycling on paved roadways only applies to the definition of “mountain biking,” a different activity. However, City is not shielded because the injury at least potentially arose from conduct outside the normal assumed risks of the event, and as a result of City’s own failure to maintain in a safe condition the street which is arguably a “substantial work of improvement” involved in the activity and the injury.
Based on the foregoing, the City’s motion is denied.
8. SCV-253507, Prondzinski v. California Casualty Indemnity Exchange
Defendant’s Motion to Compel Further Discovery Responses to its Request for Production of Documents, and Defendant’s Motion to Compel Further Discovery Responses to its Form Interrogatories and Special Interrogatories and for Monetary Sanctions, are dropped as moot. This court previously sustained Defendant’s demurrer to the entire complaint without leave to amend, disposing of the action in its entirety.
9. SCV-253590, Colbus v. Veeco Instruments, Inc.
DROPPED at the request of counsel for moving party.
10. SCV-253597, Creditors Adjustment Bureau, Inc. v. Fetters
Defendant’s motion to vacate default judgment is granted.
Plaintiff’s proofs of service, one for each Defendant, shows service on Defendants personally at Defendants’ address at 11:20 a.m. on June 10, 2013. It states that the person served was “Peter Fetters,” the Defendant and the person providing Defendants’ declaration.
Defendant Fetters states that Defendants share the building, address, and mailbox with two other units, a warehouse and residence, the tenants of which are unrelated, and that sometimes mail is incorrectly delivered. Fetters Dec., ¶¶ 5, 8-9. Fetters also states that at the time of the supposed service, he was in Rohnert Park negotiating a roofing contract with Eddie and Arianne Ramos at 838 Lancewood Court. Id., ¶ 8. He attaches a copy of the contract, which is indeed signed by both Fetters and the property owner on the date of the purported service. Id., ¶ 8, Ex. B. Defendants’ evidence provides some reasonable and credible explanation for the failure to respond to service, backed up by some additional evidence in the form of the contract.
Plaintiff argues that the Sheriff’s Department personally and separately served each Defendant, adding credibility to the claim of service. Plaintiff is certainly correct that the proof of service seems perfectly valid on its face and seems more credible and reliable than usual because it contains specific information, has one for each Defendant, and was by the Sheriff’s Department. Plaintiff adds that it served each Defendant on July 11, 2013 at the correct address with a cautionary letter warning of a threat of default. Freed Dec., ¶ 3.
In reply, Defendants assert that they never received the mailed items and that they may have been picked up by the others at the address. Supp. Fetters Dec., ¶ 6. They also reiterate that Fetters was in Rohnert Park, attaching now a copy of the planner which purports to show that he was meeting with the clients from 10:30-11:30. Id., ¶¶ 7-8.
Plaintiff argues that Defendants have delayed unreasonably in bringing this motion, waiting more than 5-½ months. Defendants filed this motion on January 14, 2014. According to Defendants, they learned of the default and judgment only in early September. Fetters Dec., ¶ 4. They thus filed this motion only 5 months after entry of default and 4 months after entry of judgment. They needed to hire a lawyer and did so in December 2013, with the lawyer bringing this motion within a month. Fetters Dec., ¶ 10. Defendants thus delayed slightly under either version of the situation, but they are well within the 6-month limit and the extent of delay is partly explained by the need to hire a lawyer. Importantly, Plaintiff makes no showing of prejudice from any delay.
11. SCV-253814, Davison v. Requarth
Defendants’ Motion for Summary Judgment is granted as a motion for judgment on the pleadings, with leave to amend. The complaint is so lacking in necessary factual allegations as to make it impossible to determine exactly what claims Plaintiff is raising, the bases for the claims, or what property and transactions the allegations relate to. As a result, it fails to state facts sufficient to constitute a cause of action and also renders it impossible for this court to determine if any facts or evidence actually relate to the allegations Plaintiff is trying to raise in this matter.
12. SCV-254100, CACH, LLC v. Shigaeff
Motion CONTINUED to Fri., April 4, 2014, at 10:00 a.m. because there is no proof of service. Should the moving party provide a proper and complete proof of service by the time of the hearing, the court will grant the motion.