May 30, 2016




Wednesday, May 25, 2016, 3:00 p.m.

Courtroom 17 – Hon. Eric Labowitz for the 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 the Court by telephone at (707) 521-6725, and all other opposing parties of your intent to appear by 4:00 p.m. today, Tuesday, May 24, 2016.   Parties in small claims cases and motions for claims of exemption are exempt from this requirement.




1.  MCV-234370, Northwest Exteriors, Inc. v. Barker

Plaintiff’s Motion for Terminating Sanctions is granted.  The Defendants have failed to comply with multiple court orders compelling its responses to Plaintiff’s discovery requests, and ordering payment of monetary sanctions to Plaintiff.  The Defendants have had multiple opportunities, both formal and informal, to furnish responses, however, no responses have been received.  Defendants’ conduct constitutes a willful misuse of the discovery process, and warrants the imposition of termination sanctions by striking Defendants’ answer and entering default judgment according to proof, as well as imposing monetary sanctions related to the costs of preparing and filing of this motion. 


On the basis of the aforementioned, Defendants’ answer is stricken and default judgment in the total amount of $6,697.05 is entered.



2.  SCV-251594, Summit State Bank v. Kalia

AMCO Insurance Company’s Motion Pursuant to Code of Civil Procedure Section 592 for Pretrial Interpretation of Business Income Coverage Terms and Right to Offset for Policy Benefits Overpaid is denied.  AMCO seeks a ruling that inherently is based upon issues of fact which must be resolved before the court may reach the issues of law.  Specifically, there are factual questions as to the language in the policy and as to whether, how, to what extent, or how long, Cross-Complainants suffered any interruption or interference of their business.



3.  SCV-252449, Plum Tree Homeowners Association v. Kaczmarek

Plaintiff’s Motion for Assignment Order and for Order Restraining Judgment Debtor is granted.



4.  SCV-255350, Rivers v. Veolia Transportation Services, Inc.

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



5.  SCV-256929, Porter v. Nationstar Mortgage LLC

Defendants’ Demurrer to Plaintiffs’ First Amended Complaint is sustained without leave to amend.  Plaintiffs have made no substantive changes to cure the defects for causes of action 1-3 which this court found on the prior demurrer.


As before, these causes of action are based on the claim that Defendants lack a beneficial interest or authority but improperly put the burden on Defendants without setting forth facts actually demonstrating a lack of such 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.  


A foreclosing entity need not show actual authorization and although a plaintiff may bring an action to stop foreclosure based on lack of authority or interest, the burden is on Plaintiffs to allege facts that actually negate authority to foreclose, such as affirmatively showing that the Defendant have no interest in the notes or deed of trust in question.  See 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. 


Plaintiffs’ allegations, and the exhibits which this court may consider, are in essence the same as before.  Plaintiffs’ primary changes are simply to add conclusory statements lacking factual basis or to make vague, unsupported claims and arguments.  For example, Plaintiffs allege the conclusion that the notice of default is “void” in addition to stating, as before, that it “lacks any evidence to support the recitals,” while keeping the underlying allegations and facts essentially the same.  See First Amended Complaint (“FAC”) ¶¶ 29-30.  These underlying allegations provide no facts supporting the conclusion and instead the facts which this court can consider in the pleadings and judicially noticeable documents are, on their face, contrary to Plaintiffs’ claims.  Plaintiffs similarly claim that the Declaration of Default attached is not “valid” without providing any facts demonstrating that this is so and the declaration appears facially valid.  Ibid. 


Plaintiffs also claim that the recorded instruments contain false statements but provide no facts demonstrating this, again making only conclusory statements or claims of falsity without any factual basis.  For example, they “allege that whoever, [sic] signed the Notice of Default (“NOD”) did not have agency authority from the Lender,” without providing any facts that would show this, while the document is valid on its face.  FAC, ¶ 34.  


Plaintiffs also rely, just as before, on the key claim that the original lender ceased operations before an assignment was recorded.  Nothing here indicates that this has any bearing on the rights of Defendants to foreclose since it is clear that there was a mortgage while the complaint Exhibit C shows no conduct by Benchmark Lending Group, Inc. but instead a transfer of the beneficial interest by Mortgage Electronic Registration Systems, Inc. (“MERS”) and from MERS to The Bank of New York Mellon (“BNY”).  See FAC, ¶¶ 16-19.


Plaintiffs allege that the NOD is void because Defendants “did not follow the legal requirements” yet fail to provide facts supporting this conclusion other than referring to the claim for breaching Civil Code section 2923.5, the basis for the surviving fourth cause of action.  FAC, ¶¶ 49-51.   As discussed before, however, that only gives Plaintiffs the right to postpone the foreclosure and require Defendants to cure the defects prior to proceeding with the foreclosure.  It gives Plaintiffs no other remedies or bases for other causes of action such as those at issue here.  Mabry v. Sup. Ct. (2010) 185 Cal.App.4th 208. 


Plaintiffs contend that the NOD is void because Veriprise purports to be trustee but no valid substitution was recorded.  FAC, ¶ 52.  As before, however, Plaintiffs do not demonstrate why this is so while the request for judicial notice documents, Exhibits 2-4 particularly, demonstrate that MERS transferred its interests to BNY in 2013, which then in 2014 substituted Veriprise as trustee.


Request for judicial notice granted.



6.  SCV-257418, Healy v. Ocwen Financial Services

DROPPED from calendar; case removed to Federal Court 5/10/16.


© 2016 Superior Court of Sonoma County