Sep 02, 2014

TENTATIVE RULINGS
LAW & MOTION CALENDAR
Thursday, August 27, 2014, 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, August 26, 2014. Parties in small claims cases and motions for claims of exemption are exempt from this requirement.

 


 


1. SCV-252122, Iniguez v. Citimortgage, Inc.
DROPPED; moving party dismissed 6/27/14

2. SCV-253762, Jordan v. Ziegler
DROPPED at the request of moving party.

3. SCV-253914, Garcia v. 23 Bottles of Beer
DROPPED at the request of moving party.

4. SCV-254119, Sunia v. Sonoma Valley Pool & Spa
DROPPED at the request of moving party.

5. SCV-254545, Unitarian Universalists of Petaluma v. North American Elite Insurance Company
Defendant’s motion to quash subpoena duces tecum as to Eaton & Johnson, Inc. is denied. Evid. Code § 703.5 does not apply to this appraisal report file and the information does not appear to be work product related to this lawsuit.

Defendant’s motion to quash subpoena duces tecum as to IFT, Inc. is denied in part, and granted in part. The material appears to be work product but on its face the nature of the material sought appears to receive only qualified protection. Plaintiffs demonstrate good cause because they never had an opportunity to test or examine the property in the condition it was in after the fire incident. However, Defendants argue that some portions of the file contain absolutely protected work product because they contain or reflect the attorney’s thoughts or strategies. Defendants must identify any such documents and provide them for in-camera review. Plaintiffs may obtain, without in-camera review, any documents not containing such thoughts or communications of the attorney, and specifically those containing only information on the investigation, study, examination, or testing of the property and explanation of the consultant’s analyses and opinions.

Objections are sustained, although the objections have no effect on the ultimate outcome of either motion.

6. SCV-254636, Wells Fargo Bank v. Robledo Family Winery
Unopposed motion of receiver H. Michael Hogan for order terminating receivership is granted.

7. SCV-255046, Kaneko v. Jovel-Miyazaki
The demurrers of Melissa Bradley Real Estate, Inc. and David Gallagher are overruled. No allegations or exhibits demonstrate when any cause of action accrued, when any damages occurred, or when Plaintiff reasonably should have been aware of wrongdoing or damages. The allegations also demonstrate that the Defendants were all acting in a conspiracy which involved independently wrongful conduct, such as fraud and breach of contract, and that Jovel-Miyazaki took active efforts to mislead Plaintiff and hide the wrongdoing at least through 2012.

The motion to strike by Melissa Bradley Real Estate, Inc. and David Gallagher is denied. Plaintiff’s allegations demonstrate a cause of action for a book account, even though it is not explicitly identified, and this may potentially support a limited recovery of attorney’s fees under Civ. Code § 1717.5.

Dawn Jovel-Miyazaki’s demurrers are overruled. The allegations set forth sufficient particularity for fraud, they demonstrate a fiduciary relationship based on much more than merely the family relationship, and the cause of action for “financial abuse” appears to be for financial elder abuse. Plaintiff improperly fails to verify the complaint for the claim to quiet title, but Jovel-Miyazaki must raise that defect in a motion to strike, not a demurrer, and she fails to do so.

Dawn Jovel-Miyazaki’s motion to strike is granted in part and denied in part, with leave to amend. It is granted as to the special damages for breach of contract; the emotional distress damages for negligent injury to Plaintiff’s dog; and punitive damages for breach of covenant of good faith and fair dealing. It is denied in all other respects. The court wishes to make clear that the court is only granting the motion to strike the specified remedies with respect to the specific causes of action discussed in the motion and noted in this ruling. Thus, for example, while this court may strike the request for punitive damages for breach of the covenant of good faith and fair dealing, that does not affect Plaintiff’s claim for punitive damages for fraud.

Plaintiff’s request for judicial notice is granted.

Plaintiff has leave to amend within 20 days of the service of the notice of entry of this order.

Defendant is to serve the notice of entry of this order within 5 days of this order.

8. SCV-255190, Campbell v. Wells Fargo Bank
With regard to this petition for writ of mandate, it is not clear that a petition for writ of mandate is the correct method for seeking the relief requested. Lab. Code § 1198.5(l) provides that “[a] current or former employee may … bring an action for injunctive relief to obtain compliance with this section ….” Neither side raises the procedural issue; Respondent simply opposes the petition on the substantive merits. The court assumes that the petition was meant as a request for injunctive relief under section 1198.5(l).

The court grants the relief requested. However, Respondent shall first redact the names of any nonsupervisory employees mentioned in the documents.

 

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