Aug 31, 2015

TENTATIVE RULINGS
LAW & MOTION CALENDAR
Wednesday, August 26, 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) 521-6547, and all other opposing parties of your intent to appear by 4:00 p.m. today, Tuesday, August 25, 2015. Parties in small claims cases and motions for claims of exemption are exempt from this requirement.

 

 

 


 

1.  MCV-205043, Citibank South Dakota, N.A v. Brisco

Appearance required.

 

 

2.  MCV-233307, American Express Bank, FSB v. Gonzalez

Appearance required.

 

 

3.  MCV-234658, Midland Funding, LLC v. Elgin

Plaintiff’s motion for order establishing admissions is granted.  The requests for admission will be deemed admitted unless the responding party provides responses in substantial compliance with the requirements by the time of the hearing.

 

Sanctions are denied.  The notice of motion does not mention sanctions in any way and thus do not give notice that Plaintiff will seek sanctions, much less the type or amount.  In order to obtain sanctions, the moving party must request sanctions in the notice of motion, identify against whom the party seeks the sanctions, and specify the kind of sanctions.  CCP § 2023.040.

 

 

4.  MCV-235365, Royal Petroleum Co. v. Windsor Concrete

Plaintiff’s motion for order for publication of summons is continued to Fri., Sept. 18, 2015, at 9:30 a.m. in Courtroom 17.

 

Plaintiff shows that it has been unable to serve Defendants by personal service, substituted service, or mail.  Bleasdell Dec., ¶2.  Plaintiff’s attorney wrote a letter to Defendants on April 6, 2015, requesting payment but Plaintiff received no response; Plaintiff sent the summons and complaint to Rush Services to serve Defendants at Defendants’ last known address, 2003 Fulton Road, Santa Rosa.  Bleasdell Dec.  The attorney adds that Plaintiff conducted some research indicating a possible address at 12 Tamarin Lane, Novato; Defendant Rossetti called the attorney on May 20, 2015 and said he had received the April 2015 letter sent to 2003 Fulton Road and wanted to reach a settlement; Plaintiff sent a letter and proposal, including a summons and complaint, to a post office box in Bodega since Defendants would not give a physical address; Plaintiff received no response and called Defendants and left at least two messages but Defendants never called back; Plaintiff then found another possible address at 177 Valley Ford-Freestone Road, Valley Ford.  The attorney also purports to describe the process servers’ attempts but lacks personal knowledge with regard to such information.

 

Plaintiff includes apparently two servers’ affidavits as Exhibit C.  Two affidavits from one server, Jason Robert Teats, state that he attempted personal service five times at 2003 Fulton Road from April 29, 2015 through May 12, 2015 without result, other than talking to two other people who stated that Rossetti is the landlord but does not live there and has not been seen there.  His later affidavits mention service on June 26 and 29 at 177 Valley Ford-Freestone Road, Valley Ford, with a resident stating that Rossetti owns the property, stores equipment there, and is the resident’s landlord but receives no mail there.  These two affidavits are not signed, however. 

 

The affidavits of the other server, Matthew Anderson, are signed.  They state service attempts on May 7, 9, 10, and 12, 2015 at 12 Tamarin Lane, Novato, without result (aside from a resident stating that Rossetti is the landlord but does not live there).  Given the evidence that the court may properly consider, the showing is presently inadequate.  Shown is reasonable diligence, but much of what the attorney says lacks personal knowledge, while one server’s affidavits are not signed. 

 

The court will allow an additional opportunity for Plaintiff to file supporting evidence by way of curing the issues raised herein.  Any such additional evidence shall be filed no later than 10 days from the date of this hearing.

 

 

5.  MCV-235811, TD Bank USA, N.A. v. Epp

CONTINUED to Wed., Sept. 23, 2015, at 3:00 p.m. at the request of Defendant Bev Epp.

 

 

6.  SCV-242484, Greater Sonoma Partnership v. B Squared, Inc.

Defendant Class and Class Representative Carol Wolff’s motion for preliminary approval of settlement agreement and related matters is granted.  The court intends to adopt the proposed ruling contained in Exhibit C of the Declaration of Michael C. Crosby, to include the following (all hearings before The Honorable Gary Nadler, Department 17):

 

At page 2, line 24:  “within three days of entry of this order”;

 

At page 3, line 16:  “seven court days before the Final Hearing”;

 

At page 3, line 27:  “three court days before the Final Hearing”; and

 

At page 5:  the Final Hearing is to be held on January 20, 2016 at 3:00 p.m., in Department 17.  If counsel deems that another date for the Final Hearing would be reasonable given the circumstances, a joint letter stating the reasons therefore and any proposed new dates may be submitted to Department 17 chambers for the consideration of the court.

 

 

7.  SCV-253590, Colbus v. Veeco Instruments, Inc.

DROPPED from calendar at the request of counsel for moving party.

 

 

8.  SCV-254867, Cader-Thompson v. Sonoma Valley Health Care District

Plaintiff’s motion for final approval of class action settlement is granted.

 

Plaintiffs have served the notice as required and demonstrated that only four members have asked to be excluded while no member has objected, or sought to appear, individually.  As this court already determined in the preliminary-approval order, Plaintiffs had demonstrated three of the four factors which under Reed v. United Teachers Los Angeles (2012) 208 Cal.App.4th 322, at 336-337, indicate that the settlement is presumptively fair: (1) the settlement is reached through arm's-length bargaining; (2) investigation and discovery are sufficient to allow counsel and the trial court to act intelligently; (3) counsel is experienced in similar litigation.  The settlement will achieve the goals of the lawsuit and the members, it will allow them potentially to obtain recovery per the statutes, and the fees and costs sought are not only in addition to the award to the members but very small in comparison to the fees and costs which individual lawsuits for all members would generate.  Now, the evidence that of more than 1,300 members no member has objected or sought to appear individually, and that only four have opted out, furthers the final factor for presumptive fairness, showing that the proportion of members objecting or opting out is small.

 

 

9.  SCV-255406, Karp v. State Farm General Insurance Company

DROPPED from calendar at the request of counsel for moving party.

 

 

10.  SCV-255443, Chenoweth v. Gerhardt

CONTINUED to Wed., Sept. 30, 2015, at 3:00 p.m. pursuant to stipulation and order filed 8/24/15.

 

 

11.  SCV-256287, Landen v. Flyers Energy, LLC

Defendant’s motion to compel responses to request for production of documents is granted.  The motion is unopposed.  The court notes that verified responses were served prior to the hearing on these motions.

 

Defendant’s motion to compel responses to interrogatories is granted.  The motion is unopposed.  The court notes that verified responses were served prior to the hearing on these motions.

 

The court denies sanctions, finding that circumstances otherwise supporting sanctions would cause the imposition to be unjust.

 

 

12.  SCV-256527, Berkholtz v. Bank of America, NA

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

 

 

13.  SCV-257056, DMV, LLC v. City of Sonoma

Petitioners’ motion for appointment of counsel pro hac vice is granted.

 

 

14.  SCV-257218, Henricksen v. Nationstar Mortgage, LLC

Defendant Bank of America, N.A.’s demurrer is sustained with leave to amend.

 

Here, Plaintiff is placing the burden on Defendants to demonstrate an interest and authority allowing them to foreclose, contrary to the law, and provides nothing affirmatively showing a lack of interest or authority.  Gomes v. Countrywide Home Loans (2001) 192 Cal.App.4th 1149; Debrunner v. Deutsche Bank National Trust Co. (2012) 204 Cal.App.4th 433; Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256.   All of the demurring party’s other arguments are unpersuasive and the court notes that this has nothing to do with “standing” and, in theory, Plaintiff could bring a “preemptive” action to stop a foreclosure based on lack of authority or interest if affirmatively demonstrating such lack of authority or interest.

           

Requests for judicial notice granted.

 

An amended complaint shall be filed and served within 20 days of service of notice of this order.

 

 

15.  SCV-257350, In Re: Michael P. Georg

The petition for approval of structured settlement payment rights is granted.

 

 

 

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