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LAW & MOTION CALENDAR
Wednesday, October 7, 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) 521-6725, and all other opposing parties of your intent to appear by 4:00 p.m. today, Tuesday, October 6, 2015. Parties in small claims cases and motions for claims of exemption are exempt from this requirement.
1. MCV-226432, State of Maine v. Ryan
2. SCV-254999, Blanchfield v. Hotchkiss-Cropsey
Philip J. Terry’s motion to be relieved as counsel for Defendant Amber J. Hotchkiss-Cropsey is granted.
3. SCV-255945, Evans v. Anglada
Movants’ request for judicial notice is granted.
Defendants David Anglada-Figueroa, Julie Kiser and Robin Lowitz’s demurrer is sustained with leave to amend. The complaint does not state facts sufficient to constitute a cause of action. With regard to the argument that the causes of action are untimely under the applicable statute of limitations, the court determines that such is not shown by the face of the complaint. Code of Civil Procedure section 340.5 provides for a three-year period of limitations for professional negligence of a health-care provider, and sets a maximum period of three years from the date of injury or one year after plaintiff discovers, or through reasonable diligence should have discovered, the injury, whichever occurs first. Here, although Plaintiff filed the complaint almost two years after the events alleged, nothing indicates when Plaintiff discovered the injury and wrongful cause, or should have done so. As such, the complaint is not untimely on the face of the pleadings. Second, it is not clear that this is the applicable statute of limitations here since it applies only to claims for “professional negligence” but Plaintiff here is suing for intentional fraud not negligence. Fraud has a three-year statute of limitations. Code of Civil Procedure section 338(d). Either way, the pleadings do not show that any cause of action is untimely.
With regard to the claimed lack of specificity, Plaintiff’s allegations continue as defective in that there are insufficient details which purportedly constitute the fraud alleged. For example, the amended complaint fails to sufficiently identify the alleged representations upon which Plaintiff relies to allege fraud.
Defendants David Anglada-Figueroa, Julie Kiser and Robin Lowitz’s motion to strike is sustained with leave to amend.
Defendants shall prepare and serve an order within 7 days from the date of this order. Plaintiff shall file and serve an amended complaint within 10 days of service of the order sustaining this demurrer and motion to strike.
4. SCV-256600, Gmeiner v. Orthofix, Inc.
Defendants’ motions to quash service of summons as to Water Street Healthcare Partners, LLC and as to Orthofix, Inc. are continued to Wed., Jan. 13, 2016, at 3:00 p.m.
The court determines that, as alternatively requested by Plaintiffs, further discovery is warranted in order for Plaintiffs to meet their burden of proof. Discovery shall be limited to the jurisdictional issues raised by these specially appearing Defendants. The further discovery is warranted in order to allow Plaintiffs an opportunity to establish the nature and extent of the Defendants’ “contacts” in California. Mihlon v. Superior Court (1985) 169 Cal.App.3rd 703, 711.
5. SCV-257218, Henriksen v. Nationstar Mortgage, LLC
DROPPED from calendar; first amended complaint filed 9/30/15.
6. SCV-257279, Park v. Pavelka
Defendant Trew Tree Experts, Inc. moves to strike Plaintiff’s claim for punitive damages and related allegations. The motion to strike is granted with leave to amend.
The court grants Defendant’s request for judicial notice. Although the Plaintiff’s opposition references a request for judicial notice, the court is unaware that any such request was filed.
Although the parties argue facts which are disputed, for purposes of this motion the court examines the pleadings presented. The court will not rule as if the Defendant was suspended, as there is evidence to the contrary. In any event, the complaint alleges that Defendant was involved with cutting a tree located on Plaintiff’s property without his permission (¶ 18); and that Defendant engaged in tree cutting and removal without a permit, although it is also alleged that another Defendant was so responsible (¶ 24). As pled, the allegations are not sufficiently clear and convincing to support those allegations.
Defendant shall prepare and serve an order within 7 days from the date of this order. Plaintiff shall file and serve an amended complaint within 10 days of service of the order sustaining this motion to strike.