LAW & MOTION CALENDAR
Wednesday, October 5, 2022, 3:00 p.m.
Courtroom 17 – Hon. Bradford DeMeo
3035 Cleveland Avenue, Santa Rosa
PLEASE NOTE: Per order of the court, any party or representative of a party must appear remotely through Zoom for this calendar unless you request an in-person appearance by 4:00 p.m. the day before the hearing.
If the tentative ruling is accepted, no appearance is necessary via Zoom unless otherwise indicated.
TO JOIN ZOOM ONLINE:
D17 – Law & Motion 3:00 pm Wednesday/2:30 pm Friday
Meeting ID: 895 5887 8508
TO JOIN ZOOM BY PHONE:
By Phone (same meeting ID and password as listed for each calendar):
+1 669 900 6833 US (San Jose)
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 DeMeo's Judicial Assistant by telephone at (707) 521-6725, and all other opposing parties of your intent to appear by 4:00 p.m. on Tuesday, October 4. Parties in small claims cases and motions for claims of exemption are exempt from this requirement.
PLEASE NOTE: The Court's Official Court Reporters are "not available" within the meaning of California Rules of Court, Rule 2.956, for court reporting of civil cases.
1. MCV-254527, Looney v Hyperion Public Capital Limited Partnership
On April 12, 2021 Plaintiff Gary E. Looney dba Collectronics of California (“Plaintiff”), assignee of Young’s Market Company, obtained a default judgment against defendants Hyperion Public Captial Limited Partnership, MSA Capital Group, LLC and Jonathan K. Speaks (“Defendants”) in the amount of $9,284.92 (the “Judgment”). This matter is on calendar for Plaintiff’s motion to appoint a receiver, namely Landon McPherson, to seize and sell liquor license number 521912 to satisfy the Judgment. Plaintiff has moved the Court for receivership once before in this case. The request was denied for failure to provide adequate evidence of the necessity of appointment of receiver.
A judgment debtor’s interest in an alcoholic beverage license is not subject to execution (Cal. Civ. Proc. Code (“CCP”) § 699.720(a)(1)), and therefore may be applied to the satisfaction of a money judgment only by appointment of a receiver under CCP § 708.630. CCP § 708.630(b) provides that the Court may appoint a receiver to transfer the debtor’s interest in the license, unless the debtor establishes that the amount of delinquent taxes and claims of prior creditors exceed the probable sale price of the license. Generally speaking, a receiver may be appointed to enforce a judgment where the judgment creditor shows that, considering the interests of both the creditor and the judgment debtor, the appointment of a receiver is a reasonable method to obtain the fair and orderly satisfaction of the judgment. CCP § 709.620. The legislative committee notes confirm that it is no longer a prerequisite for the judgment creditor to show that the judgment debtor “refuses to apply property in satisfaction of the judgment,” but the committee notes also state that “a receiver may be appointed where a writ of execution would not reach certain property and other remedies appear inadequate.” (Emphasis added). The availability of other remedies “does not, in and of itself, preclude the use of a receivership. [citation] Rather, a trial court must consider the availability and efficacy of other remedies in determining whether to employ the extraordinary remedy of a receivership.” City & Cty. of San Francisco v. Daley (1993) 16 Cal.App.4th 734, 745. In making this decision, the court must depend upon competent and admissible evidence submitted by the parties, and not conclusions and hearsay. McCaslin v. Kenney (1950) 100 Cal.App.2d 87, 94.
The judgment debtors were served with the Motion and no opposition was filed. Nevertheless, given the expense of the appointment of a receiver, and that the power to do so is “a delicate one which is to be exercised sparingly and with caution,” (Morand v. Sup. Ct. (1974) 38 Cal.App.3d 347, 351) even if otherwise proper, the Court will not grant the Motion absent a sufficient factual showing by Plaintiff regarding the availability and efficacy of other remedies to collect on the Judgment. Id. at 350 (appointment of receiver “rests wholly within the judicial discretion”). Mere difficulty in trying to collect a debt is not sufficient basis for the court to appoint a receiver. Medipro Medical Staffing LLC v. Certified Nursing Registry, Inc. (2021) 60 Cal.App.5th 622, 628-629.
The supporting Looney Declaration states that there has been no response to post-judgment letters or interrogatories. Looney Decl. ¶ 9-10. Plaintiff claims to have “investigated the Defendants [sic] finances” but claims to have not received any useful information for collecting on the Judgment. Looney Decl. ¶ 6. And similarly, the brief argues that the business cannot be till tapped due to the COVID-19 pandemic, that all other assets are essentially valueless, and that its sole remaining asset is the liquor license and that as a result, the Judgment may never be satisfied absent the appointment of a receiver (Motion at 4:3-27). Plaintiff argues that he has been unable to locate any financial assets, but admits that the business is currently open.
The evidence provided is largely conclusory or vague, and fails to show the necessity of a receivership. Plaintiff has moved the Court once before in this case to appoint a receiver with insufficient factual basis. Plaintiff appears to have not supplemented the previous filing with any new information except: 1) a new receiver; and 2) an attached copy of the current status of ABC License 521912. Neither of these changes remedies the substantive deficiencies of Plaintiff’s motion. Plaintiff has not filed any motions to compel responses to his post-judgment interrogatories. Plaintiff has not provided any exposition on his efforts to investigate Defendants’ finances. Nor has Plaintiff evidenced any attempt to contact Defendants in the last year prior to the filing of this motion. Therefore, Plaintiff has not provided sufficient information to move the Court to grant such an extraordinary remedy.
Based on the foregoing, the Motion is DENIED.
Defendants shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule of Court 3.1312(a) and (b).
2. SCV-262816, Tommasi Landry v Tommasi
Plaintiff and cross-defendant Catarina Tommasi Landry (“Plaintiff”) filed the Second Amended Complaint (“SAC”) on August 17, 2021 against defendant and cross-complainant Andrew E. Tommasi (“Defendant”). This matter is on calendar for the motion by Plaintiff to deem Defendant’s right to appoint an appraiser under the judgment waived.
The interlocutory judgment in this matter was entered on March 30, 2022 (the “Judgment”). The Court found for the Plaintiff, and entered terms under which the property could be appraised and Plaintiff would receive specific enforcement of the underlying contract. Judgment ¶ 1-4. The interlocutory judgment stated that the parties would each be able to appoint an appraiser within 60 days of the Judgment, and failure to appoint an appraiser within that time would waive a party’s right to appoint their appraiser. Judgment ¶ 4(a-b). If both parties had appraisals performed and the appraisals differed by less than 5%, the appraised value would be set by the average of the two appraisals. Judgment ¶ 4(c). If the appraisals differed by more than 5%, the Court would set briefing and allow the parties to have a hearing on the issue of the appraised value. Judgment ¶ 4(d). Defendant appointed their appraiser on May 25, 2022. Plaintiff appointed their appraiser on May 30, 2022. Plaintiff alleges that Defendant has failed to comply with the terms of the Judgment in failing to provide an appraisal from Defendant’s appraiser.
There is no provision of the Judgment delineating when appraisals were to be exchanged, nor a method by which they would be provided to the opposing party. The Judgment does not provide for a basis upon which to deem Defendant’s right to appraisal waived short of his failure to provide an appraiser within 60 days, a deadline which Defendant met on May 25, 2022. Nor has Plaintiff provided any legal basis outside the language of the Judgment. As such, the Court does not find it appropriate to void Defendant’s provided appraisal.
The Court does admonish Defendant and his counsel for their unnecessary delay in producing their appraisal. The appraisal for Defendant was completed on July 11, 2022. Defendant did not provide the appraisal until August 9, 2022. While the Judgment did not provide a time or method for exchange of the appraisals, it was adequately clear that such exchange was necessary in order for the Court and the parties to determine whether the appraisals would fall under Judgment ¶ 4(c), requiring no further hearing, or Judgment ¶ 4(d). Such obstruction, coupled with the communications between counsel (see Plaintiff’s Declaration in Support, filed 8/19/2022, Exhibits D-G), do not strike the Court as proper good faith compliance with the Court’s orders.
Defendant asks for affirmative relief in requiring Plaintiff provide an additional appraisal which may have already been completed. The Judgment provides that each party shall appoint an appraiser, and that the appraisal value shall be set upon the appraisals of those individuals so appointed. Judgment ¶ 4(a),(c-d). This is, just like Plaintiff’s requested relief, outside the scope of the Judgment and not supported by any additional citations. As such, it does not strike the Court as appropriate relief.
Plaintiff’s motion to deem Defendant’s right to provide an appraisal as waived is DENIED.
This matter is set for the Case Management Conference calendar on October 13, 2022, at 3:00 pm in Department 17 for further setting of the contested hearing on property value.
Defendant’s counsel shall submit a written order to the court consistent with this ruling and in compliance with Rule of Court 3.1312(a) and (b).
3. SCV-266884, Souch v Redwood Credit Union
Attorney Matthew Mellen’s motion to be relieved as counsel for plaintiff Charlotte Souch is DENIED DUE TO A DEFECT IN SERVICE. The motion was served on Plaintiff only by electronic means on May 11, 2022. Cal. Rule of Court, Rule 3.1362 (d) requires that the motion be served either by mail or by personal service. This has not occurred. This matter had been continued due to the seriousness of Mr. Mellen’s condition as included in the declaration, but there has been no effort to cure this defect and no indication that Plaintiff has actual notice of her attorney’s condition and attempts to be relieved. Mr. Mellen or any counsel assisting him at this time are encouraged to request appearance to propose a cure for this defect, as the Court’s sole concern as related to relief is leaving Plaintiff with the impression that she is still represented by an attorney who has been relieved by the Court.
4. SCV-267181, Anabi Oil Corporation v Peterson
Plaintiff Anabi Oil Corporation (“Plaintiff”) filed the verified complaint (the “Complaint”) in this action against defendants Harold Petersen, Steven Petersen and Bethany Zoe (together “Defendants”) arising out of a right of first refusal in a lease agreement for real property located at 801 E. Washington Street, Petaluma (the “Property”). The Estate of Harriet Knott (the “Estate”), through its administrator Patrick Galligan (“Galligan”), has filed a complaint against Plaintiff which has been consolidated into this case with a cause of action for unlawful detainer (“Estate’s Consolidated Complaint”). The Estate’s interest in the Property has been bequeathed to Jeffrey Graves and Edward Graves (“Beneficiaries”). Harold Petersen, Edward Petersen, James Petersen, Steve Petersen and Robert Keith (“Cross-Complainants”) have filed a cross-complaint (“Cross-Complaint”) against cross-defendant Patrick Galligan (“Cross-Defendant”) with two causes of action for 1) legal malpractice, and 2) breach of fiduciary duty. Cross-Complainants, subsequently joined by Beneficiaries, have also filed an unlawful detainer case in case MCV-253858 with a second amended complaint against Plaintiff which has been consolidated with SCV-267181 (“Consolidated Complaint”). This matter is on calendar for the motion by Cross-Complainants to void the stipulation and order submitted by Galligan substituting the interest of the Estate for that of the Beneficiaries. The parties are ordered to APPEAR.
Galligan served as both the administrator of the Estate and its counsel. The Court disqualified Galligan as counsel for the Estate in this action on February 4, 2022 due to the strong probability that he would testify at trial, and his prior representation of multiple Cross-Complainants. On April 26, 2022, Cross-Complainants submitted their order after hearing disqualifying Galligan as the attorney for the Estate. Galligan remained the administrator of the Estate and continued representing the Estate in probate action related to its administration. On May 26, 2022, Galligan submitted a stipulation and order substituting the Estate for the Beneficiaries, signed by Galligan and Plaintiff (the “Substitution Order”). Attached to the order, Galligan included the order of the Superior Court of Riverside County ordering his distribution of the Estate’s interest in both the Property and this case to the Beneficiaries. See Substitution Order Exhibit A. Cross-Complainants move to void this order due to Galligan’s disqualification as counsel for the Estate in this case.
The court has the power to set aside any void order upon the motion of a party. CCP § 473(d). Disqualification of counsel serves to enjoin that counsel from further participation in the case. URS Corp. v. Atkinson/Walsh Joint Venture (2017) 15 Cal.App.5th 872, 879. Prob. Code § 10951 obligates a personal representative to distribute property and file a final accounting when an estate is in a position to be closed. When the court enters orders on final distribution, the personal representative may immediately distribute the property subject to the orders without further notice or proceedings. Prob. Code § 11641.
Cross-Complainants have not produced any evidence indicating that Galligan is not the administrator of the Estate. Galligan was empowered and obligated as the administrator of the Estate to disgorge the interest in this case. Galligan remained the Estate’s administrator after the disqualification order. Galligan was ordered within the probate action to distribute the Estate’s interest in this case. See Substitution Order Exhibit A, Attachment 12, ¶ (C) (“The Court is also distributing and directing that the Administrator assign to [Beneficiaries], in equal shares, the Estates [sic] interest in [the Estate’s Consolidated Complaint]). Galligan was required, as the Administrator of the Estate, to sign over the interest in the Estate’s Consolidated Complaint to the Beneficiaries. Galligan executed this requirement through the Substitution Order.
The Court does not find that Galligan’s disqualification as the attorney for the Estate within this case nullifies his standing and power as the administrator of the Estate to make distributions. Cross-Complainants make no arguments that Galligan could not make the required distributions of the Estate despite the injunctive nature of his disqualification. Cross-Complainants will argue that Galligan was obligated to go and obtain counsel in order to submit the Substitution Order, but this does not make sense from either a practical or legal perspective. The Substitution Order reflects the orders of the probate court as related to the Estate. Galligan was explicitly vested with the power to transfer the Estate’s interest. The Substitution Order is not facially void, and therefore CCP § 473(d) does not apply.
Based on the foregoing, the Court is inclined to DENY the motion. The Court orders the parties to APPEAR.
Galligan, in his individual capacity, shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule of Court 3.1312(a) and (b).
5. SCV-267392, Oura v Casa Del Sol Townhomes Owners Association
Plaintiffs Michelle Oura and Stephen Oura (together “Plaintiffs”) filed the presently operative first amended complaint against defendant Casa Del Sol Townhomes Owners’ Association (“Defendant”) arising out of Defendant’s alleged failure to repair an unsound roof and resulting damages and injuries (the “FAC”). The FAC contains causes of action for: 1) general negligence; 2) intentional tort; 3) breach of contract; 4) breach of fiduciary duty; 5) elder abuse; and 6) nuisance. This matter is on calendar for the motion by Defendant to compel responses to request for production of documents (“RPODs”), pursuant to Cal. Code Civ. Proc. (“CCP”) § 2033.280(b).
- Relevant Law
Regarding RPODs, a demand for production may request access to “documents, tangible things, land or other property, and electronically stored information in the possession, custody, or control” of another party. A party to whom a document demand is directed must respond to each item in the demand with an agreement to comply, a representation of inability to comply, or an objection. CCP § 2031.210(a). If only part of an item or category demanded is objectionable, the response must contain an agreement to comply with the remainder, or a representation of the inability to comply. CCP § 2031.240(c)(1). If a responding party is not able to comply with a particular request, that party “shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand.” CCP § 2031.230. “This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party” and “[t]he statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” Id. Where no response was served to a RPOD, there is no time requirement in moving to compel, nor any requirement to show good cause for the production requested. See CCP § 2031.300; see also Cal. Prac. Guide Civ. Pro. Before Trial Ch. 8H-8, Enforcing Demand: §§ 8:1484, 8:1487; contra CCP § 2031.310 (b-c) (a motion to compel further shall set forth good cause for the demand and shall be filed within 45 days of service of the unsatisfactory response).
There is no requirement to meet and confer prior to filing a motion to compel where there has been no response to discovery requests. Leach v. Superior Court (1980) 111 Cal.App.3d 902, 906; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 405. Sanctions are mandatory under the CCP for discovery abuses, absent substantial justification. If a party fails serve a timely response, the court shall impose sanctions unless it finds that the party subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. CCP §§ 2031.300(c) & 2033.280(c). The purpose of monetary sanctions is to mitigate the effects of the necessity of discovery motions and responses on the prevailing party. There is no requirement that the failure to comply with discovery be willful for the court to impose monetary sanctions. Ellis v. Toshiba America Information Systems, Inc. (2013) 218 Cal.App.4th 853, 878.
The Motion is accompanied by a proof of service showing that service of the moving papers was timely made on Plaintiffs. There is also a proof of service associated to the initial service of the RPODs, indicating that the RPODs were served twice, on December 7, 2021 and January 27, 2022. See Declaration of Gayle Kono, Exhibits A & B. Defendant sent meet and confer letters to Plaintiffs on January 18, 2022 and June 20, 2022.
Plaintiffs contend that Defendant has not participated in meet and confer regarding the RPODs, and request that any meet and confer be in writing. Defendant has sent two meet and confer letters regarding RPODs. Plaintiffs indirectly acknowledge that they received the RPODs, as they assert that they are attempting to duplicate all the documents necessary to respond. See Plaintiff’s Opposition ¶ 3. Therefore, Plaintiffs have clearly received the RPODs and do not aver that they served either responses or produced the relevant documents. These facts are dispositive to the motion.
Based on the foregoing, Plaintiffs’ motion to compel is GRANTED. Defendant shall produce responses to the RPODs, and any relevant documents within 30 days.
CCP § 2031.300 (c) provides that a monetary sanction “shall” be imposed against the party losing a motion to compel responses to RPODs. The purpose of monetary sanctions is to mitigate the effects of the necessity of discovery motions and responses on the prevailing party. Defendants seek $430.00, representing attorney work of two hours for the motion at $185/hr, plus $60 in filing fees. Kono Declaration ¶ 10. The court finds that a total of two hours at the reasonable rate of $185/hr is appropriate for a total sanctions award in the amount of $430.00. Plaintiffs are to pay $430.00 to Defendant within 30 days of this order.
Defendant’s counsel shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule of Court 3.1312(a) and (b).
6. SCV-269601, Young v Schultz
This matter is on calendar for Defendant’s motion for attorney’s fees after the Court granted Defendant’s special motion to strike under the Anti-SLAPP statute. Plaintiffs have appealed the Court’s order striking the complaint. That appeal is still pending. Therefore, ruling on the attorney’s fees motion at this time would be inappropriate under CCP § 916. This matter is CONTINUED to December 14, 2022 at 3pm in Department 17. The matter has been fully briefed by the parties, and barring further order of the Court, no further briefing is expected