Dec 03, 2016



Wednesday, November 30, 2016, 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, November 29, 2016.   Parties in small claims cases and motions for claims of exemption are exempt from this requirement.





1.  MCV-184535, Fireside Thrift Co. v. Scott

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



2.  SCV-230846, Hogan v. DeAngelis

In light of the pending appeal, Plaintiffs’ Motion to Determine Amount due is DROPPED from calendar.



3.  SCV-256744, La Esplanada Unit 1 Owners’ Association v. La Promenade Villas, LLC

DROPPED from calendar at the request of moving party.



4.  SCV-257081, Property Owners for a Fair HOA v. Northwood Property Association

Plaintiff’s Motion for Award of Attorney’s Fees is granted as more fully explained below.


The primary dispute here is whether Plaintiff is entitled to fees for its claims under authority for actions to “enforce the governing documents” of a common-interest development.  The parties dispute whether Plaintiff’s action fits within this definition.


Civil Code section 5975 governs the enforceability of CCRs in common-interest developments.  It states that CCRs shall be enforceable equitable servitudes, and subdivision (c) requires the prevailing party to recover attorney’s fees and costs, stating that “[i]n an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney’s fees and costs.”  As the court noted in Almanor Lakeside Villas Owners Association v. Carson (2016) 246 Cal.App.4th 761, at 776, “the Davis–Stirling Act mandates the award of attorney's fees to the prevailing party.”


In Tract 19051 Homeowners Ass’n v. Kemp (2015) 60 Cal.4th 1135, the Supreme Court ruled, in an HOA’s action to enforce CCRs on the basis that the development was a “common-interest development,” that the homeowner was entitled to recover attorney’s fees where the homeowner successfully defended the action by demonstrating that it was not a common-interest development.


In addition to statutory law, CCRs are to be interpreted as contracts.  Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 513; Fourth La Costa Condominium Owners Assn. (2008) 159 Cal.App.4th 563, 575; 14859 Moorpark Homeowner’s Ass’n v. VRT Corp. (1998) 63 Cal.App.4th 1396, 1410.  Thus, as stated in Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4th 1360, at 1377, “[t]he same rules that apply to interpretation of contracts apply to the interpretation of CC & R’s.”  Therefore, “the reciprocal remedy of section 1717 [is] triggered by the presence of an attorney fee provision in CC&R's.”  Jackson v. Homeowners Association Monte Vista Estates-East (2001) 93 Cal.App.4th 773.  Civil Code section 1717(a) allows a party prevailing on a contract with a fee provision to recover the fees in an action on the contract.  It expressly states that the “party prevailing on the contract” shall recover the fees, regardless of whether the fee provision states that only one of the parties may be entitled to recover fees.  Civil Code section 1717(a).  The prevailing party “shall be the party who recovered a greater relief in the action on the contract.”  Civil Code section 1717(b)(1).  The court thus has no discretion to deny fees where there has been an unqualified victory, i.e., “purely good news” for one party and “purely bad” for the other, on a sole contract claim.  Hsu v. Abbara (1995) 9 Cal.4th 863, 877.


Here, Plaintiff claimed that the Subdivision is a common-interest development, and sought to demonstrate that certain Amended CCRs are unenforceable as in violation of the Davis-Stirling Act (the Act), governing common-interest developments.  This clearly involves a dispute over enforcement of the CCRs.  More generally, the action also seems to fall within the ambit of section 5975’s own language, which is broader than simply an action to enforce CCRs, but instead authorizes fees and costs, as noted above, “[i]n an action to enforce the governing documents .…”  Rancho Mirage Country Club Homeowners Association v. Hazelbaker (2016) 2 Cal.App.5th 252.


Defendant relies on Salawy v. Ocean Towers Housing Corp. (2004) 121 Cal.App.4th 664 for the proposition that reference in a pleading to governing documents is insufficient to support attorney’s fees under section 5975 if the action is not one to enforce the governing documents.  See Opposition, 3:21-24.  However, as Plaintiff correctly notes in its reply, in Salawy the dispute was over an unrelated written promise and actually had nothing to do with the governing documents, even though they were referenced in the pleadings.  As the court stated, at page 671, the “‘gist’ of appellants [sic] actions was not to enforce the governing documents.  The actions, even if not meritorious, were based on an alleged promise unrelated to the governing documents.” 


Defendant  also relies on Blue Lagoon Community Ass’n v. Mitchell (1997) 55 Cal.App.4th 474, at 477, in which the court ruled that homeowners who successfully opposed a petition to amend the governing documents could not do so because it was not an action to enforce them.  In that case, as Defendant admits, the action was over an attempt to amend CCRs, not over their enforceability.  


Defendant further argues that the court must deny any fee award because of Defendant’s financial condition.  Defendant notes that evidence at trial showed it to be a non-profit corporation made up of voluntary members of homeowners.  It contends that the court “is entitled to consider all factors, including the non-prevailing party’s financial condition” and that “costs are not intended to be used as a tool to deny access to the court or deter individual from asserting their rights.”  Although Defendant recites valid law, the law expressly provides that in disputes between HOAs and owners within their jurisdiction over CCRs and governing documents, the prevailing party is ordinarily entitled to recover fees and costs, as discussed above.


Plaintiff seeks $52,010.50: $47,260.50 at $285 to $290 an hour for one attorney and for another $2,750 at $275 an hour, plus another $2,000 for this motion.  Thomas Declaration, ¶¶ 7-8.  This is reasonable, as the lodestars proffered are appropriate, and the billing records reflect time reasonably spent.  Defendant makes no effort to challenge the amount of fees, instead solely arguing that Plaintiff should not recover any fees at all.  The court affirms Plaintiff’s fee request.



5.  SCV-257358, Mendocino Wine Group, LLC v. Carle, Mackie, Power & Ross, LLP

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



6.  SCV-257435, Allen v. Eye Associates of Sebastopol

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



7.  SCV-257846, Stabile v. County of Sonoma

DROPPED from calendar; dismissal filed 11/16/16.



8.  SCV-258139, McClain v. Kissler

Defendants’ Motion to Quash Service and Vacate Clerk’s Entry of Default Judgment is denied.


In December 2015, Defendants, the moving parties, and specifically Defendant Karen Kissler, filed a motion to expunge lis pendens, expressly on behalf of Karen Kissler, individually and dba Karen Kissler, Esq., and Alternatives a Health Collective.  This motion did not challenge the service of summons and complaint or the personal jurisdiction in any way.  The Defendants also took part in this litigation subsequently without challenging service or personal jurisdiction by filing, amongst other things, a Case Management Statement on July 5, 2016.  Although the form statement contains boxes to mark for raising issues regarding service and jurisdiction, Defendants did not mark those boxes. 


A party’s general appearance “is the equivalent to personal service of summons on such party” and the party thereby forfeits any objection to defective service.  Code of Civil Procedure section 410.50(a); Fireman’s Fund Ins. Co. v. Sparks Const., Inc. (2004) 114 Cal.App.4th 1135, 1145.  Thus, “[a] general appearance is one in which the defendant participates in the action in a manner which recognizes the court's jurisdiction.  If the defendant raises an issue for resolution or seeks relief available only if the court has jurisdiction over the defendant, then the appearance is a general one.”  Factor Health Mgmt., LLC v. Superior Court (2005) 132 Cal.App.4th 246, 250 [citations omitted].   As the Supreme Court stated in Judson v. Superior Court of Los Angeles County (1942) 21 Cal.2d 11, at 13,


“if a defendant by his appearance insists only upon the objection that he is not in court for want of jurisdiction over his person and confines his appearance for that purpose only, then he has made a special appearance, but if he raises any other question, or asks any relief which can only be granted upon the hypothesis that the court had jurisdiction of his person, then he had made a general appearance.”


Defendants did repeatedly state on their papers that they were only “specially appearing” but merely designating the appearance as “special” is not controlling.  If a party makes any appearance to seek any relief on a basis other than lack of personal jurisdiction, the appearance is general.  Szynalski v. Superior Court (2009) 172 Cal.App.4th 1, 10.  As the Szynalski court stated, “[o]ne cannot alter by reservation the personal jurisdiction conferred by minimum contacts or consent.” 


The court also notes that it is also clear from Defendants’ own papers that, regardless of any possible defect in service, Ms. Kissler was entirely aware of the lawsuit, and the identity of the parties, at least as of December 2015 when they filed the motion to expunge lis pendens.  Moreover, despite all of this, with service having supposedly taken place in January, 2016, and despite discussing the issue with Plaintiffs and the court at the June 16, 2016 Case Management Conference (during which this court informed that Plaintiffs had until July 22, 2016 to seek Defendants’ default, and that Defendants needed either to file an answer or bring a motion to challenge service of the summons and compliant), Defendants did nothing until after Plaintiffs had already entered their default.



9.  SCV-258360, Delucca v. Edwards

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



10.  SCV-258596, Mall v. Emeritus at Santa Rosa

As to Defendant’s Motion to Compel Arbitration and Stay Litigation, Plaintiff’s objections are denied; they are not objections, but argument as to evidence.  However, paragraphs 1 through 3 of the Pardo declaration are without foundation as to the factual averments made.


The court initially notes the contents of the Advanced Health Care Directive here in question.  Under the directive, the “Agent’s Obligation” allows her to make health care decisions as directed in the power of attorney including instructions given in part 2 of the form.  The decisions are to be made based upon James L. Mall’s “wishes to the extent known to [his] agent.”  The health care decisions are to be made “to the extent [Mr. Mall’s] wishes are unknown.”  No evidence was presented concerning this clause.


Second, nowhere in any of the points and authorities was the issue of whether the signing of the arbitration agreement is considered to be a decision concerning health care.


Third, the parties failed to adequately address the import of Health and Safety Code section 1599.65(a), which provides that “[p]rior to or at the time of admission, the facility shall make reasonable efforts to communicate the content of the contract to, and obtain on the contract the signature of, the person who is to be admitted to the facility.  Unless the prospective resident has been declared legally incompetent or is unable to understand and sign the contract because of his or her medical condition, he or she shall sign or cosign the admission agreement.  In the event the patient is unable to sign the contract, the reason shall be documented in the resident’s medical record by the admitting physician.  This provision does not preclude the facility from obtaining the signature of an agent, responsible party, or a legal representative, if applicable.”


The court is unable to render a ruling based upon the present contents of the motion papers.  Thus, this matter is continued to Wed., Feb. 1, 2017, at 3:00 p.m. in Courtroom 17.  Movants shall file amended papers no later than Wed., Jan. 4, 2017; Plaintiffs shall file any opposition no later than Wed., Jan. 11, 2017; any reply shall be filed no later than Tues., Jan. 17, 2017.  All documents shall be filed in the Clerk’s Office with courtesy copies delivered to the chambers for Courtroom 17.



11.  SCV-259180, Doe v. Fort Ross Elementary School Districted

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



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