Apr 21, 2014

TENTATIVE RULINGS
LAW & MOTION CALENDAR
Wednesday, April 16, 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, April 15, 2014. Parties in small claims cases and motions for claims of exemption are exempt from this requirement.

 

 

1. MCV-227023, Creditors Trade Association, Inc. v. Cowboy Up, Inc.
Plaintiff’s motion for sanctions is denied without prejudice. Plaintiff fails to provide admissible evidence showing that Defendant has not provided the responses ordered and has thus failed to comply with the court order. The evidence provided demonstrates only that Defendant has not paid the sanctions.

2. SCV-251977, Cruz v. Petaluma Acquisition, LLC
Plaintiff’s motion for counsel to be appointed pro hac vice is dropped for failure to file proof of service.

3. SCV-252972, City of Cloverdale v. Insurance Company of the West
DROPPED; notice of settlement filed 3/25/14.

4. SCV-253610, The Foundation for Critical Thinking v. Hale
Plaintiff The Foundation for Critical Thinking’s motion to amend complaint is granted.

5. SCV-253793, Enriquez v. Donovan
DROPPED per stipulation and order filed 4/10/14.

6. SCV-254261, Northern California Collection Service, Inc. v. Gray
Plaintiff’s motion for a spousal earnings withholding order is granted, to allow withholding of Tafaifa Gray’s earnings in accordance with Code of Civil Procedure sections 699.530, 695.020(a), and 706.109 as well as Family Code section 910.

7. SCV-254525, Zamora v. BAC Home Loans Servicing, LP
DROPPED; per request from attorney for moving parties.

8. SCV-254564, Bird v. Dodson
Defendant’s motion to compel Plaintiff’s attendance at psychological examination and for sanctions is denied. Plaintiff’s counsel sought specificity as to the nature of the examinations. This was not provided. See, for example, Carpenter v. Superior Court (2006) 141 Cal.App.4th 249. The notice of motion must state the time, place, identity and specialty of the examiner, and the “manner, conditions, scope and nature of the examination.” Code of Civil Procedure section 2032.310(b).

9. SCV-254608, Barker v. Fox
Defendants move to strike, pursuant to Code of Civil Procedure section 425.16, the first, second, and third causes of action. Defendants’ anti-SLAPP motion is denied.

Defendants’ request for judicial notice is granted.

Plaintiff’s request for judicial notice is denied as to request 1, and granted as to request 2 (as to the existence only of the declaration).

Defendant must make a prima facie showing that plaintiff’s lawsuit arises from defendant’s exercise of free speech rights in connection with a public issue. Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1365. Once defendant achieves this, the burden shifts to plaintiff to make a prima facie showing of a “probability” that he will prevail on his claims. Dixon v. Superior Court (1996) 44 Cal.App.4th 944, 950-953.

A “probability” of success requires plaintiff to show a legally sufficient claim and that the claim is supported by competent, admissible evidence within the declarant’s personal knowledge. Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1497-1498.

There is no dispute that this lawsuit arises from falls within the ambit of section 425.16(e)(3) or (4) as statements “made in a place open to the public or a public forum in connection with an issue of public interest” or “any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” The basic cause of action is defamation based directly on speech activities by which Defendants allegedly informed others of Plaintiff’s alleged misconduct as a caregiver.

The critical issue here presented concerns the probability of success. Defendants claim that Plaintiff cannot because the alleged statements fall within the qualified privileged of Civil Code section 47 and Plaintiff’s allegations are false.

Defendants show that Defendant Wagner is a professional fiduciary appointed to be McBride’s conservator on November 28, 2012; Defendant Fox and Associates operates a business employing nurses and other “healthcare professionals” to provide in-home care; Plaintiff was a member of a caregiver team already caring for McBride when Wagner became conservator; Wagner hired the Fox Defendants to provide services to McBride in November 2013; Fox Defendants’ initial role was to provide oversight; Fox Defendants determined that the caregivers then handling McBride lacked training in nursing or home healthcare; Fox Defendants determined that Plaintiff was not providing proper care and Wagner placed him on probation to provide additional training, at which point he quit; Wagner put another caregiver on probation, trained her, and she has improved; the only communications which Defendants made consisted of statements discussing the general situation, need for training, etc., amongst each other and with Plaintiff and the other caregivers involved; Defendants made no communications to anyone outside this group and did not made any statements blaming Plaintiff for causing injuries, lying, covering up misconduct, or the like. Wagner Dec.; Fox Dec.

Plaintiff provides declarations of his own plus other witnesses and caregivers showing that Defendants were at fault for the problems and injuries, specifically the errors of one Carly, an employee of Defendants Fox, who made errors; Plaintiff and the other caregivers, including his mother, were close to McBride and knew her special needs; when Defendants became involved with McBride, Defendants immediately wanted to bring in brand-new workers, including one Carly, an employee of Fox; the original caregivers tried to warn Defendants that they should bring in new workers gradually, shadowing and working with the original caregivers in order to get McBride used to them because McBride was violent and uncooperative with anyone whom she did not know and trust; Defendants refused to listen to this and rejected the proposal, instead putting in new workers, including Carly, right away; Carly caused problems with McBride that led to the injuries at issue; Defendants blamed Plaintiff for the errors of Carly, but Plaintiff did not cause the injuries. Knopf-Senia Dec.; Alex Barker Dec.; Nancy Barker Dec.; Nix Dec.; Groves Dec. Plaintiff also shows that although Defendants accused Plaintiff of tampering with the video camera, several of the caregivers moved the video camera to not show what was happening in the house when alone in the house with McBride because the monitor was in a separate cottage, they had had a break in or threat of such before, and they were afraid that someone would break into the cottage and watch them on the camera; Defendants also came into conflict with, and dismissed, the original organizer of the caregivers; Knopf-Senia Dec.; Alex Barker Dec.; Nancy Barker Dec.; Nix Dec.; Groves Dec. Plaintiff also stated that Defendants in fact made the alleged statements about Plaintiff to various people, including McBride’s daughters, lawyers, friends, and family.

Considering all evidence, the court concludes that, while the statements and conduct at issue might be within the ambit of the qualified privilege of Civil Code section 47, it is not clear that the statements are privileged. The circumstances indicate that the statements may well have been false, intentional, and malicious just as alleged by Plaintiff. As such, at least at this juncture, the privilege does not necessarily bar Plaintiff’s claims.

Aside from the privilege, Defendants argue that the allegations are not even true. They do provide evidence supporting this position, but Plaintiff also provides evidence that disputes this and supports his allegations. This is sufficient for purposes of this motion.

The evidence presented is sufficient to demonstrate a probability of success since it supports the veracity of the allegations in the complaint, including the claim that Defendants made the alleged false statements to a variety of people and that they in fact did so to cover up their own errors, while the circumstances may support the finding that Defendants’ statements and conduct were therefore malicious.

10. SCV-254679, Watertrough Children’s Alliance v. County of Sonoma
Real Party in Interest Paul Hobbs Winery, LP’s (“RPI”) demurrer to petition for writ of mandate is overruled. RPI’s request for judicial notice is granted.

Petitioner Watertrough Children’s Alliance’s (“WCI”) request for judicial notice is granted.

In the prior case to which RPI refers, several parties challenged Respondents’ enactment of a Grading, Drainage, and Vineyard and Orchard Site Development Ordinance (the Ordinance), alleging that the enactment procedure violated CEQA because Respondents incorrectly determined that the enactment was exempt from CEQA and thus required no CEQA review. They argued that Respondents improperly determined that passing the Ordinance was exempt from CEQA and did not fall within one of the exceptions to the exemptions. They argued that the Ordinance is a “project” under CEQA, and that Respondents improperly determined that the Ordinance falls within the cited exemptions because it limits discretion and is in many ways less protective of the environment than the prior scheme. They also contended that it falls within the two exceptions to the exemptions which were raised in public comments.

The court denied the petition. It ruled that substantial evidence supported the finding that the Ordinance adoption fell within two CEQA categorical exemptions and a “common sense” exemption and fell within no exception to the exemptions. It also ruled that the Ordinance included some approvals intended to be ministerial and some intended to be discretionary, all of those intended to be ministerial in fact are ministerial because they included sufficient detailed guidance to remove discretion. See RPI’s Request for Judicial Notice (“RJN”), Ex. B.

Collateral estoppel applies when “(1) [an] issue raised in the present action is identical to [an] issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding.” Brinton v. Banker’s Pension Services, Inc. (1999) 76 Cal. App.4th 550, 556. This can actually be broken down into five more specific elements for collateral estoppel: (1) the issue is identical to one decided in another proceeding; (2) the issue was actually litigated in the other proceeding; (3) the issue must have been necessarily decided in the other proceeding; (4) the decision in the other proceeding is a final ruling on the merits; and (5) the party against whom preclusion is sought is the same as, or in privity with, the party in the other proceeding. Hernandez v. City of Pomona (2009) 46 Cal.4th 501, 511.

RPI groundlessly argues that collateral estoppel bars this petition as a matter of law on the face of the pleadings.

There is no indication that the issues in this case are identical to those in the prior case. The prior case challenged the validity and language of the Ordinance while this case challenges the approval of the Permit and Project under the framework of the Ordinance. At this pleading stage, collateral estoppel cannot be determined. In addition, there is no indication that Petitioner here is in privity with the parties in the prior action.

With regard to the alleged issue of “untenable relief”, RPI’s argument is difficult to discern. RPI is essentially claiming that Petitioner seeks to set aside the Ordinance under which the Project was ostensibly approved. This is not evident; Petitioner merely contends that Respondents needed to conduct CEQA review when approving this Project.

Movant raises the issue that Petitioner fails to specify facts showing that the Permit and Project approvals were in fact discretionary, and that the approvals were ministerial. It may well be that this court could find the decisions ministerial as RPI contends, but at this stage nothing is so indicated and Petitioner need not allege specific details establishing the discretionary nature of the decisions.

 

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