Apr 24, 2014

Wednesday, April 23, 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 22, 2014. Parties in small claims cases and motions for claims of exemption are exempt from this requirement.


1. MCV-188688, Worldwide Asset Purchasing, LLC v. Torres
Appearance required.



2. MCV-227213, Creditors Trade Association, Inc. v. Bolton
Plaintiff’s motion for appointment of receiver is granted.



3. SCV-249375, Bernal v. Wells Fargo Bank, N.A.
Plaintiff’s motion for return of bond is denied without prejudice as the facts presented do not show satisfaction of the circumstances for withdrawal of the bond under CCP § 995.360. Plaintiff must demonstrate that the beneficiary has stipulated to the return, that the 4-year statute of limitations under CCP § 337 has expired, or that the principal, beneficiary, and surety have stipulated to shortening the limitations period and it has expired.

Plaintiff’s motion for return of bond heard on November 15, 2013, was continued due to lack of a proof of service. Apparently, Plaintiff filed a proof of service for that hearing on the very day of the hearing, but did not appear at the hearing to inform the court and it is not clear what time of day it was filed. There was no notice of the new hearing, however, and no new proof of service or appearance by any party at the new hearing so the court dropped the motion. At the original hearing, the court also stated that it would deny the motion without prejudice if it reached the merits, anyway, because the facts presented did not show that Plaintiff satisfied the circumstances required under CCP § 995.360.

Now, Plaintiff provides a courtesy copy of a proof of service, filing date unknown. In any event, and assuming service is no longer an issue, Plaintiff dismissed the action just over 1-½ years ago, and the action was adjudicated at that time. This alone does not appear to meet either of the circumstances that would allow the court to order the bond withdrawn.



4. SCV-250342, Austin Creek Ready Mix, Inc. v. Miller and Elwood Concrete, Inc.
Cross-Defendant Sierra Pipeline, Inc.’s motion for summary judgment has been DROPPED at the request of counsel for moving party.

Cross-Defendants Austin Creek Ready Mix, Inc. and Rick Jones Drywall’s motion for leave to file cross-complaint is denied. Austin Creek had knowledge of the role of MKM & Associates for over a year, having addressed this issue through discovery in January, 2013. While it may have just recently proceeded with deposition and subsequent expert review, that delay was avoidable. More important, this matter is set for trial on May 2, 2014, in approximately two weeks. Allowing this cross-complaint, which may be pursued after this trial concludes, is prejudicial to the remaining parties.



5. SCV-252231, United Collection Service, Inc. v. Vollert
Plaintiff’s motion for appointment of counsel pro hac vice is granted.



6. SCV-253553, Neumann v. McMaster
Defendants’ motion to set aside default is granted.

Defendants contend that Plaintiff, the mother of Defendant Neumann, served Defendants in August 2013; Defendants’ attorney contacted Plaintiff’s then-attorney and engaged in discussions through September 2013, during which Defendants’ attorney stated that he was preparing to take over representation and negotiations and Plaintiff’s attorney at the time agreed not to take the default but instead to give “ample” time; the negotiations were headed towards settlement but broke down and Plaintiff’s original attorney substituted out; by February 14, 2014, Defendants had not heard anything from Plaintiff and called her directly, unaware that she had obtained a new attorney, Martin McOmber; Defendants contacted Mr. McOmber, who informed Defendants that Plaintiff had taken their default but then promised not to pursue a scheduled default hearing in return for Defendants’ promise not to vacate the default; on March 17, 2014, Defendants contacted Mr. McOmber, who stated that he was substituting out of the case so Defendants informed Plaintiff that they were going to vacate the default hearing but Plaintiff’s new attorney informed them that he would oppose this. Lewis Dec.

Although there is an indication that Defendants were somewhat dilatory, they did engage in negotiations, discussed settlement, and received a promise that the default would not be entered, at least without “ample” notice and time. Plaintiff did change attorneys, with the second attorney simply entering the default without making any contact with Defendants or doing anything else.

Defendants do not raise the court’s inherent equitable power to set aside a judgment on the basis of extrinsic fraud or mistake, but that authority is considered by this court. The key is whether there are circumstances extrinsic to the lawsuit itself that deprive the party of a fair hearing. The court finds that, given the preference that cases shall be determined on their merits, this motion is granted.



7. SCV-253590, Colbus v. Veeco Instruments, Inc.
Defendants Veeco Compound Semiconductor, Inc. and Veeco Instruments, Inc.’s motion for appointment of counsel pro hac vice is granted.



8. SCV-253821, Miranda v. Kerchum
Frank J. Christy’s motion to be relieved as counsel for Defendant is granted.



9. SCV-254028, Lund v. Petersen-Garces
Cross-Defendant Trina Bialoblocki’s motion for judgment on the pleadings is denied.

The motion is directed to the cross-complaint and is necessarily based on Plaintiff’s allegations and the viability of any cause of action asserted. However, the allegations do not show that Plaintiff as a matter of law assumed the risk at issue. The analysis requires factual determinations beyond the facts pleaded in the complaint or cross-complaint.

Plaintiff contends that the motion is procedurally improper because the movant is only a Cross-Defendant and directs the motion to the complaint to which she is not a party.

Preliminarily, Plaintiff’s characterization of the motion is not quite accurate. He is correct that Bialoblocki is only a Cross-Defendant in Defendants’ cross-complaint and is not a Defendant in Plaintiff’s complaint. He is also correct that the analysis is based on the allegations in Plaintiff’s complaint. However, the motion is directed “against Plaintiff … and Cross-Complainants” while the analysis must necessarily be based upon the validity of Plaintiff’s allegations since the cross-complaint is solely for indemnification for any liability based on Plaintiff’s complaint. If Plaintiff, therefore, has no valid cause of action against anyone, as the motion asserts, then Bialoblocki cannot be liable.

Although Bialoblocki may not seek judgment on the pleadings against Plaintiff, she can seek such a ruling on the cross-complaint against her and this analysis is necessarily based on Plaintiff’s allegations and the viability of Plaintiff’s claims. In any event, even considering the merits, the motion would be denied.

Bialoblocki argues that because Plaintiff was a willing participant in the party and chose to go near the bonfire, he willingly took on the obvious and inherent risks and thus assumed the risk of being injured in the fire. Bialoblocki properly and carefully sets forth the complaint’s actual factual assertions, but they show only that Defendants own the Property and that there was a party on the Property; Plaintiff was an invited guest of Defendants and attended the party; Plaintiff came to the area of the bonfire; Defendants negligently constructed and maintained the fire in a dangerous condition in an uneven area that constituted a tripping hazard without warning of the hazards or barriers to prevent people from falling into the fire; and Plaintiff tripped on the uneven surface, falling into the fire. None of this shows that Plaintiff intentionally chose to expose himself to the risks of the fire in any way and no allegations provide sufficient information to make any determination on this point at all. Moreover, by being present at a party with a bonfire does not invoke the assumption of risk doctrine. One may encounter hidden tripping dangers that might cause one to fall into the bonfire, with such dangers seemingly analogous to the failure to maintain a safe skiing facility which the court in Knight v. Jewett (1992) 3 Cal.4th 296 said could be a basis for liability. Moreover, this is not a recreational activity as to which one may assume the implied risk.



10. SCV-254488, Molinari v. Maze
Plaintiff’s motion to amend complaint is granted. The proposed amended complaint shall be filed within 7 days of the date of this order.



11. SCV-254564, Bird v. Dodson
Appearances required. If an agreement has been reached, moving party shall promptly notify the court’s judicial assistant.



12. SCV-254717, Norgrove v. City of Santa Rosa
DROPPED; first amended complaint filed 3/24/14.


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