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LAW & MOTION CALENDAR
Friday, February 21, 2014, 10:00 a.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, Thursday, February 20, 2014. Parties in small claims cases and motions for claims of exemption are exempt from this requirement.
1. MCV-225461, Asset Acceptance, LLC v. Maloney
Plaintiff’s motion for judgment on the pleadings is granted. Defendant failed to state any defenses to the complaint in the answer, and failed to oppose this motion.
2. MCV-228037, Creditors Trade Association, Inc. v. Shangxian
Plaintiff’s motion for appointment of receiver is granted.
3. MCV-228231, Creditors Trade Association, Inc. v. 4th & Mill, LLC
Plaintiff’s motion for appointment of receiver is granted.
4. MCV-229313, Asset Capital Recovery Group, LLC v. Virgil-Ruiz
Plaintiff’s motion for order to deem matters admitted is granted. The requests for admission will be deemed admitted unless the responding party provides responses in substantial compliance with the requirements by the time of the hearing. The court notes that Plaintiff does not seek sanctions and thus sanctions are not awarded.
5. SCV-246408, Dunkelis v. Aronoff
Plaintiff’s motion to enforce settlement pursuant to CCP § 664.6, for order releasing Defendant’s financial information from four institutions, is denied. The motion is not supported by sufficient evidence.
5. SCV-246738, STRS Ohio CA Real Estate Investments I. L.L.C. v. Alcal/Arcade Contracting, Inc.
DROPPED per request from attorney for moving party.
6. SCV-249622, Fedco Construction, Inc. v. Meadowlark Properties, Inc.
Plaintiff’s Motion to Compel Further Responses to Discovery Propounded on Defendants Daniel H. Morgan and James Clifford and for Monetary Sanctions filed December 31, 2013, is re-referred to the Discovery Facilitator Program.
Plaintiff’s Motion to Compel Further Discovery From James Clifford and for Sanctions filed January 27, 2014, is also referred to the Discovery Facilitator Program. A Notice and Order Re: Inclusion in Discovery Facilitator Program for both motions will be sent to counsel.
The motions are CONTINUED to Friday, April 4, 2014, 10:00 a.m.
7. SCV-251069, Hylton v. Bank of America
Defendants’ motion to modify preliminary injunction is denied.
CCP § 533 allows the court to modify or dissolve any injunction or temporary restraining order based on a material change in facts, a change in the law, or the ends of justice. It states, in full,
“In any action, the court may on notice modify or dissolve an injunction or temporary restraining order upon a showing that there has been a material change in the facts upon which the injunction or temporary restraining order was granted, that the law upon which the injunction or temporary restraining order was granted has changed, or that the ends of justice would be served by the modification or dissolution of the injunction or temporary restraining order.”
When it granted Plaintiff’s preliminary injunction, the court ordered Plaintiff to post an undertaking in the amount of $20,000, the amount which Defendants themselves requested for the undertaking. Defendants now argue that Plaintiff has not continued to pay her monthly loan obligations and that a continuing failure to pay will cause further harm. They ask the court to increase the bond amount by an additional $39,600.
The court determines that an insufficient showing has been made to justify any modification sought by this motion. Defendants argue, in part, that harm continues to be suffered from the lost mortgage payments. Had the injunction been denied, these payments may not have been recovered by Defendants. Defendants may have sold the property earlier, but this was considered in conjunction with the initial undertaking order, and there is no evidence whatsoever as to any further injury or decline in property value. Importantly, there is also no evidence whatsoever for finding the unpaid mortgage payments to be the basis for calculating the harm to Defendants, and the continued failure of Plaintiff to pay is not an unforeseen change in facts or new injustice to Defendants.
With regard to the remaining motions, continued by Judge Wick from February 14, 2014, the court determines as follows:
With regard to Defendants’ motion for summary judgment, that motion is denied.
Defendants’ alternative motion for summary adjudication is granted in part, and denied in part. The motion is granted as to issues 2 and 3, and is otherwise denied.
Defendants’ request for judicial notice is granted. However, the court notes that multiple exhibits were provided with separating exhibit tabs. California Rules of Court, Rule 3.1110(f), requires that “[e]ach exhibit must be separated by a hard 8 1/2 x 11 sheet with hard paper or plastic tabs extending below the bottom of the page, bearing the exhibit designation.” This failure to comply causes undue time consumption by the court in order to review these voluminous exhibits subject to the request for judicial notice.
Defendants’ objections are overruled.
Although the moving parties’ evidence, and the established facts which they support, appear sufficient to meet their burden as to each cause of action, Plaintiff provides evidence which establishes triable material issues of fact regarding every cause of action, except the second and third. Specifically, Plaintiff provides evidence demonstrating that she fulfilled all of the requirements under the trial plan to entitle her to a modification under the terms Defendants presented and agreed to, Defendants fraudulently induced her to go into default and sell her New Mexico property, Plaintiff acted to her detriment in reliance on Defendants’ assertions or promises or representations regarding the requirements for modification, and the need to be in default or sell the other property. Hylton Declaration; Facts16-18, 20-22, 25-27, 29-32, 35-37, 48-53, 55-61, 67-70, 73-77, 80, 82-112, 114-120. Plaintiff does not, however, provide any evidence showing that Defendants’ conduct involved any interference with any other contract or rights or benefits related to another contractual relationship.
8. SCV-252574, McHenry v. Lukasko
Defendant Alma Lukasko’s motion to bifurcate is denied. The court determines that bifurcation would not promote judicial economy. The issue of the statute of limitations involves considerable evidentiary issues, not particularly separate and distinct from the issue of liability.
9. SCV-253507, Prondzinski v. California Casualty Indemnity Exchange
Defendant’s demurrer to Plaintiff’s third amended complaint is sustained, without leave to amend, for failure to state a cause of action. Defendant’s request for judicial notice is granted.
Plaintiff again just sets forth allegations regarding the concluded uninsured motorist claim, negotiations, and arbitration. Plaintiff again fails to allege actionable conduct or damages, other than to allege that what Defendant did was wrongful. The complaint alleges only vague and conclusory statements of bad faith, delays in settlement, and failure to explain the statute of limitations. She does not explain how she suffered injury or what the injury was, only vaguely claiming that she suffered injury. She adds no new facts or explanations that were not in the previous complaints as to which demurrers were sustained.