Oct 06, 2015

Wednesday, September 30, 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, September 29, 2015. Parties in small claims cases and motions for claims of exemption are exempt from this requirement.





1.  SCV-254320, Alden v. Alden

CONTINUED to 11/4/15, 3:00 p.m. at the request of counsel for moving party.



2.  SCV-255073, Bush v. Starbucks Corporation

DROPPED from calendar at the request of counsel for moving party; matter has settled.



3.  SCV-255328, Sotelo v. Botelho

Evan Livingstone’s motion to be relieved as counsel for Plaintiff is continued to Wed., Nov. 4, 2015, at 3:00 p.m.  The proof of service does not indicate that service of the motion was made on all parties to the action.



4.  SCV-255443, Chenoweth v. Gerhardt

DROPPED from calendar at the request of counsel for moving party; matter has settled.



5.  SCV-255664, Aronow v. Lipman

Plaintiff’s application to increase preliminary injunction bond is denied.


The requests for judicial notice are granted.


Plaintiff shows that since obtaining the injunction, 8270 Holdings has incurred debt in order to exercise its option to purchase the property.  Aronow Dec.; Jamey Dec.  These declarations support Plaintiff’s claim that this may jeopardize his interests in the company.  However, none of this directly relates to the injunction, the bases for it, or the bases for the bond, which relates to Aronow being barred from the property.  There are no new facts and circumstances having to do with this which support a modification of the bond amount at this time. 



6.  SCV-256168, Matteri v. Shear Builders, Inc.

Plaintiff’s motion for protective order and to quash is denied on its merits.


The court further notes that there was an insufficient showing that a reasonable attempt at resolving these issues occurred.


Defendant Shear Builders, Inc.’s motion to remove Plaintiff Ron Matteri as director is denied.  The court determines that, although a director may be removed by court order, this action requires adjudication of the merits of the causes of action and defenses here presented.  The court agrees that directors owe a fiduciary and statutory duty to their corporations and that they may be removed.  However, the court does not find sufficient statutory authority for providing the relief requested under the circumstances presented.


The requests for judicial notice are granted.



7.  SCV-256849, A-C Transportation Services, Inc. v. Su

Petitioners’ motion for reconsideration is granted based upon facts concerning the attempt by Petitioners to obtain a bond subsequent to the court’s previous order.


With regard to the merits of the motion, the court requests oral argument.  Among the issues raised, the court seeks argument as to application of the motion to the Petitioner Corporation as compared with the Individual Petitioners; whether the showing made by Petitioners of the inability to obtain a bond was sufficient; whether “indigence” as used herein is potentially implicated; and whether the court may consider the issue of access to the courts in determining the amount of the bond.



8.  SCV-256972, Shields v. Santa Rosa City Schools District

The factual basis for these motions is not in dispute.  Simply, an application for leave to file a late claim was submitted on behalf of a minor, and then denied by operation of law.  Notice was provided by counsel for Defendant.  This was followed by the filing of a complaint without a prior petition seeking relief.  It is the failure to petition for relief that forms the basis of Defendant’s assertion that the court is without jurisdiction to proceed, and that there is a failure to state a claim.


The requests for judicial notice are granted.


The court notes that the documents submitted by Defendant show that the date of incident was September 23, 2013, and that the claim was submitted and received during August, 2014.  It thus appears that the claim was submitted well within the one year period and was not late as argued by Defendant.


The parties particularly address E.M. v. Los Angeles Unified School District (2011) 194 Cal.App.4th 736 (hereinafter “E.M.”).  Defendant argues that E.M. is “wrongly decided and should not be considered persuasive authority.”  (Defendant’s Reply, p. 2).


Defendant further asserts that there are insufficient facts pled to support equitable estoppel.  In response, Plaintiff seeks leave to amend.


The court in E.M. stated as follows:


“At oral argument on appeal, the District’s counsel argued that although the District incorrectly denied plaintiff’s application for leave to present a late claim pursuant to section 911.6, plaintiff’s only recourse was to petition the superior court for relief from the claims statute pursuant to section 946.6. We reject the notion that notwithstanding a public entity’s erroneous denial of a timely application for leave to present a late claim, a plaintiff must obtain judicial relief from the claims statute prior to filing a lawsuit. The purpose of the claims statute is to give the public entity timely notice of a claim and sufficient information to enable the public entity to investigate the claim and to settle it, if appropriate, without the expense of litigation. Plaintiff’s timely application for leave to present a late claim satisfied the technical requirements of the statutory scheme as well as the purpose of the statute. [Internal citations omitted]. Id., 194 Cal.App.4th 736 at 747-748.


Here, there is no argument by Defendant that it was deprived of notice.  Rather, Defendant asserts that Plaintiff bypassed a procedural step.  There is, however, a difference as to whether the application to file a late claim was timely in the first instance.


In addition, the demurrer is procedurally suspect as not in compliance with California Rules of Court, Rule 3.1320(a).  Despite this, the court sustains the demurrer and motion to strike with leave to amend.  The court will address the substantive issues raised by Defendant in the event another demurrer and/or motion to strike is filed, including the additional issues raised as to equitable estoppel.


Plaintiff shall file an amended complaint with 20 days of service of this order.  Defendant shall prepare and serve a proposed order within 5 days of the date of this hearing.



9.  SCV-257218, Henriksen v. Nationstar Mortgage, LLC

Plaintiff’s application for preliminary injunction is denied.


The court grants the requests for judicial notice of the parties.


Plaintiff has made an insufficient showing to justify the relief requested.  Initially, it is Plaintiff’s burden to present facts supporting his position.  In fact, Plaintiff’s own documents indicate that, contrary to his position taken, there was sufficient authority for Defendants to proceed.  See, for example, Plaintiff’s request for judicial notice at Exhibit “C.”  Plaintiff is improperly imposing on Defendants the burden of showing an interest and authority to foreclose, without first affirmatively alleging facts showing a lack of authority or interest.



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