Mar 28, 2017

TENTATIVE RULINGS

LAW & MOTION CALENDAR

Wednesday, March 22, 2017, 3:00 p.m.

Courtroom 17 – Hon. Peter Ottenweller

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 Ottenweller’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 21, 2017.  Parties in small claims cases and motions for claims of exemption are exempt from this requirement.

 

 

 

 

 

1.  SCV-256600, Gmeiner v. Orthofix

Orthofix, Inc.’s Motion to Quash Service of Summons for Lack of Personal Jurisdiction is denied for the reasons discussed in item 1 below.

 

Orthofix Holdings, Inc.’s Motion to Quash Service of Summons for Lack of Personal Jurisdiction is granted for the reasons discussed in item 2 below.

 

Orthofix International NV’s Motion to Quash Service of Summons for Lack of Personal Jurisdiction is granted for the reasons discussed in item 2 below.

 

Water Street Healthcare Partners, LLC’s Motion to Quash is granted for the same reasons discussed in item 2 below.

 

1.  Orthofix, Inc.:

Discovery shows Orthofix, Inc. is registered to do business in California, maintains an agent for service in California, and at all relevant times to the allegations had in excess of 16 employees in California.  The employees who live and work in California at Orthofix develop and distribute orthopaedic and spinal products “throughout the United States.”  Schumm Dec.  Orthofix also admits that it maintains an inventory of products at medical facilities in California.  Amended Memorandum of Points and Authorities 5:25-28. 

 

These employees include regional VP of sales, territory managers, etc., “BioStim Specialists” and other “Specialists,” and sales representatives creating sales in California.  Orthofix has remitted in California close to $1 million in income tax, over $50,000 in sales tax, over $1.6 million in payroll taxes since 2008; it has sold over 14,000 items in California during the period, it has taken in, annually, between $11.4 million and $20.4 million in revenues in California.  This shows longstanding, continuous conduct of substantial business in California for a period of years starting before the events at issue and continuing up through the filing of this lawsuit.

 

Orthofix’s reliance on Young v. Daimler AG (2014) 228 Cal.App.4th 855 and

Daimler AG v. Bauman (2014) 134 S.Ct. 746, is misplaced.  Those cases involved the question of whether a parent corporation had sufficient contacts to support general jurisdiction solely because of the business and contacts of its subsidiary.

 

2.  Orthofix Holdings, Inc.; Orthofix International NV; and Water Street Healthcare Partners, LLC:

Orthofix Holdings, Inc. (Holdings) shows that Holdings is a Delaware corporation with headquarters and principal place of business in Texas; its purpose is solely to passively hold shares of other companies and it engages in no business operations itself; it is an indirect subsidiary of Orthofix International NV; it has not done business in California and is not registered to do so; it maintains no agent for service in California and has no fixed assets, activities, accounts, real property interests, or officers, employees, or agents in California, and it pays no tax in California.  Shelgren Dec, ¶¶ 1-16.

 

Plaintiffs base the claim of jurisdiction over Holdings solely on its past relationship with, and ownership of, Breg, and the fact that in the Stock Agreement with Water Street it agreed to pay up to $4 million to cover post-sale litigation expenses for up to three years after the April 2012 sale.  None of this is sufficient to confer general jurisdiction over Holdings.  The mere former ownership of Breg, prior to the events at issue, and the fact that it agreed to pay Water Street money to cover possible litigation against Water Street and/or Breg over the devices, do not alone confer specific jurisdiction. 

 

Plaintiffs also argue that Holdings nonetheless consented to jurisdiction here because it signed a Litigation and Tolling Agreement (LTA) with Plaintiffs in Gmeiner v. Breg, et al., SCV-255056.

 

The LTA, however, provides no basis for asserting jurisdiction over Defendants for the events at issue in this lawsuit.  It is not an appearance in this, or any, action, and even though in California and subject to California law, it cannot be the basis for general jurisdiction because it is one contact.  It is not a basis for specific jurisdiction because this lawsuit does not arise from the LTA. 

 

Orthofix International NV’s Motion to Quash Service of Summons for Lack of Personal Jurisdiction is granted for the same reasons applying to Orthofix Holdings, Inc.

 

Water Street Healthcare Partners, LLC’s Motion to Quash is granted for the same reasons applying to Holdings.

 

Plaintiffs’ attorney shall prepare an order consistent with this ruling and provide the order directly to the chambers for Courtroom 17 for signature no later than March 30, 2017.

 

Orthofix, Inc.’s response to the complaint shall be filed with the court and served on Plaintiffs’ counsel within 20 days of the signed order.

 

The Case Management Conference also set for March 22 at 3:00 p.m. is CONTINUED to Thurs., June 8, 2017, 3:00 p.m. for settled pleadings and trial setting.  Case Management Statements are due 15 calendar days prior.

 

 

2.  SCV-257514, Cannon v. Clark

CONTINUED to Wed., April 12, 2017, 3:00 p.m. at the request of counsel for the parties.

 

 

3.  SCV-257566, Hogan v. DeAngelis

DROPPED from calendar at the request of counsel for moving party; first amended complaint filed 3/9/17.

 

 

4.  SCV-258384, Faga v. Huang

Defendant Henry J. Huang’s Motion for Leave to File Cross-Complaint against Plaintiffs is granted.  The motion is unopposed, however, the proof of service attached to the motion fails to state the day it was served and where the envelope was deposited in the mail.  Defendant’s counsel shall submit an amended proof of service at or before the hearing.

 

Defendant shall submit an order consistent with this ruling within five days to the chambers for Courtroom 17.

 

 

5.  SCV-258433, Tye-Angell v. Law Office of Les Zieve

Appearances required.  Because of the history of this matter, the potential for a substitution of Plaintiff, and the representations that a loan modification might render the action moot, the parties need to provide the court with information regarding these developments and the posture of the case.  The court finds it improper to consider the current demurrer as there is no Plaintiff to prosecute the action.  The court should not enter a judgment for or against a deceased party absent a substitution.  See Sacks v. FSR Brokerage, Inc. (1992) 7 Cal.App.4th 950, 957; Sellery v. Cressey (1996) 48 Cal.App.4th 538, 541.

 

 

6.  SCV-259380, Steinhart v. Ruth Wheeler Trust

Defendants’ Motion for Order Requiring Vexatious Litigant Plaintiff Sally Steinhart to Furnish Security is denied.  Although Plaintiff is deemed a vexatious litigant, Defendants have failed to meet their burden of demonstrating that Plaintiff lacks a reasonable probability of prevailing and Plaintiff provides evidence supporting her claims.

 

Plaintiff’s objections are overruled.

 

Plaintiff shall submit an order consistent with this ruling within five days to the chambers for Courtroom 17.

 

 

7.  SCV-260045, In Re: Arnulfo C. Rosas-Montes

Appearances are required.

 

This is on calendar for a Petition for Approval of Transfer of Structured Settlement Payments Rights. 

 

Arnulfo Rosas-Montes, the proposed payee, has agreed to sell his interest in 144 life contingent monthly payments totaling $55,149.66.  Petitioner is purchasing these payments for $16,375.68.  The payment amount reflects a discount rate of 26.52 percent.  Per the petition, Mr. Rosas-Montes plans to use the money to buy a trailer home.

 

The court is unable to approve this petition because the petition fails to include information required under Insurance Code section 10139.5, subdivisions (c)(1) – (6).  Absent this information, the court cannot determine whether this transfer is fair, reasonable and in the payee's best interest.  Notably, also, the discount rate appears excessively high.  No explanation – specific to Mr. Rosas-Montes’s age and circumstances – is provided for that high rate.

 

Accordingly, the petition is denied unless the information required under Insurance Code section 10139.5(c) is provided at or before the hearing, and the court concludes such evidence shows this transaction is in Mr. Rosas-Montes’s best interests.  

© 2017 Superior Court of Sonoma County