Feb 23, 2018



Friday, February 23, 2018, 3:00 p.m.

Courtroom 18 – Hon. René Auguste Chouteau

3055 Cleveland Avenue, Santa Rosa



CourtCall is available for all Law & Motion appearances, EXCEPT parties in 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) 521-6730, and all other opposing parties of your intent to appear by 4:00 p.m. today, Thursday, February 22, 2018.  Parties in motions for claims of exemption are exempt from this requirement.


PLEASE NOTE:  The Court no longer provides Court Reporters for this calendar.  If they wish, the parties may confer and arrange for one of the parties to bring a privately retained Court Reporter to serve in the matter.




1.         MCV-241121, Collectronics, Inc. v. RGN Corporation


            Plaintiff’s unopposed motion to compel post-judgment discovery is granted.  Defendant is ordered to provide responses and to pay Plaintiff $660 in monetary sanctions within 30 days of notice of entry of this order.


            Plaintiff shall submit an order consistent with this ruling.



2.         SCV-259896, Canseco v. Mi Ranchito Restaurant, LLC


            Plaintiffs’ unopposed motion to compel is granted.


            In this employment action, Plaintiffs move to compel further responses from Defendant employer Mi Ranchito Restaurant, LLC to:


·         Form Interrogatory – General 17.1, which seeks the basis for Defendant employer’s non-admissions;

·         Form Interrogatories – Employment Law 207.1, which seeks a full response regarding Defendant employer’s internal written policies/regulations;

·         Form Interrogatories – Employment Law 207.2, which seeks a full response regarding Plaintiff employees’ complaints to Defendant employer;

·         Form Interrogatories – Employment Law 217.1, which seeks the basis for employer Defendant’s non-admissions; and

·         Special Interrogatory 12, which seeks the names of other employees as potential witnesses.


            The court finds the information sought by Plaintiffs is clearly relevant to the claims alleged in this action and disclosure will be of practical benefit to Plaintiffs.


            Mi Ranchito Restaurant, LLC has failed to provide complete answers and has made objections that are largely unmeritorious or too general.  (Code Civ. Proc. § 2030.300.)  The privacy objection made in relation to production of the names of other employees is unfounded.  (See Crab Addison, Inc. v. Superior Court (2008) 169 Cal.App.4th 958, 969, upholding the right of an employee to obtain contact information in order to identify potential class members.)  The attorney-client privilege and work product objections may have some merit, but Defendant would need to justify any responsive information withheld on this basis.


            Accordingly, the motion is granted.  Mi Ranchito Restaurant, LLC shall pay $562.50 in sanctions and provide amended responses, without objection (beyond those based on valid attorney-client privilege and work product), within 30 days of notice of entry of this order.

            Plaintiffs shall submit an order consistent with this ruling.



3.         SCV-260346, Evensen v. Mid-Century Insurance Company


            Motion denied.


            This action involves an insurance claim relating to a car accident.  The accident occurred in May of 2015 in Redding, California when Plaintiff was 22 years old.  Plaintiff was driving her boyfriend’s vehicle when she was rear-ended.  Plaintiff obtained $100,000 in settlement from the other driver’s insurance policy.  Plaintiff then filed the claim at issue in this case seeking an additional $400,000 under Plaintiff’s father’s automobile insurance policy.


            Defendant Farmers Insurance Exchange (FIE) issued Plaintiff’s father’s policy.  FIE denied coverage based on its conclusion that Plaintiff was not a resident of her father’s household as required for coverage under the policy.  Plaintiff disputes this conclusion.  She alleges the following causes of action in her complaint: (1) breach of insurance contract; (2) breach of implied covenant of good faith and fair dealing; and (3) declaratory relief.


            Defendants’ unopposed request for judicial notice of various court documents is granted. 


            Plaintiff’s evidentiary objections are overruled.


            Defendants’ evidentiary objections are sustained as to objection numbers 1 & 6 to the Montgomery Declaration and overruled as to the rest.


            Defendants move for summary judgment, or in the alternative, summary adjudication of Plaintiff’s claims on the ground that Plaintiff was not a resident of her father’s household at the time of the accident; therefore, Defendants had no duty to pay Plaintiff’s claim.  According to Defendants, Plaintiff resided in Redding with her boyfriend at the time of the accident, not in Yorba Linda, California with her parents.


            However, a person can simultaneously be a “resident” at more than one household for the purposes of insurance coverage.  (See e.g., State Farm Mut. Auto. Ins. Co. v. Elkins (1975) 52 Cal.App.3d 534.)  In Elkins, “[t]he principal issue litigated below was whether at the time of the accident [19-year-old] Jayne was a ‘resident of the household’ of her father within the meaning of the policy.” (Id. at p. 537.)  The reviewing court considered the facts specific to Jayne’s situation and concluded “that the trial judge's finding that Jayne Burt was a resident of her father's household at the time of the accident is well within the bounds of reason and is supported by the evidence.”  (Id. at p. 541.) 

            The California authorities, such as Elkins, “focus on whether or not a family member is a resident of a household when he or she is not living at the household's situs on a daily basis.”  (Jacobs v. Fire Ins. Exchange (1991) 227 Cal.App.3d 584, 591, footnote 3 omitted.)  As stated in Safeco Ins. Co. v. Gibson (1989) 211 Cal.App.3d 176, 181,it seems to us the common thread that runs through each of these cases [interpreting ‘resident’ and ‘household’] is not whether the terms ‘residence’ or ‘member of the household’ are themselves inherently ambiguous, but whether, under the particular facts of each of those cases, insurance coverage was extended or excluded under the terms of the policy in question.”  And, as underscored by the Jacobs Court, “the apparent conflict in the cases interpreting ‘household’ [or ‘residence’] is not due to any inherent ambiguity in the term itself, but instead arises from the difficulty of applying varying sets of facts to a fixed definition.”  (Jacobs v. Fire Ins. Exchange, supra, 227 Cal.App.3d 584, 590.) 

            As explained below, while there is evidence that Plaintiff resided in Redding with her boyfriend at the time of the accident, the court rejects Defendants’ objections based on Plaintiff’s purported earlier discovery admissions and finds Plaintiff has raised triable issues of material fact as to whether she was a dual resident of the Yorba Linda home for purposes of insurance coverage.


            Defendants assert Plaintiff’s self-serving declarations filed in opposition to this motion contradict earlier admissions she made in the underlying third party case and cannot raise a triable issue of material fact.  Specifically, in that other action, Plaintiff did not list the Yorba Linda home as her “residence address” in her discovery responses and she testified in her deposition that she was living as an address in Redding when the accident occurred.  Where a plaintiff's admissions in a deposition contradict statements in the plaintiff's affidavits opposing the summary judgment, ‘the rule of liberal construction loses its efficacy and the granting or denial of the motion for summary judgment depends upon the issues of credibility. Accordingly, when a defendant can establish his defense with the plaintiff's admissions sufficient to pass the strict construction test imposed on the moving party..., the credibility of the admissions are valued so highly that the controverting affidavits may be disregarded as irrelevant, inadmissible or evasive.’ (Leasman v. Beech Aircraft Corp. (1975) 48 Cal.App.3d 376, 382 [121 Cal.Rptr. 768], citations omitted; D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22 [112 Cal.Rptr. 786, 520 P.2d 10].)”  (Niederer v. Ferreira (1987) 189 Cal.App.3d 1485, 1503.)


            The discovery responses and deposition testimony at issue here were propounded in Plaintiff’s prior action against the motorist who rear-ended her.  The written discovery requests sought Plaintiff’s residence addresses at the time of the 2015 accident and over the preceding five years, but those requests were not directed toward determining the difficult legal question of whether Plaintiff could also reasonably be found to dually reside in her father’s household under his insurance policy during that time.  The court finds that Plaintiff’s responses do not directly contradict the application of the dual residency concept here.  It was reasonable that Plaintiff did not understand the need to include in her discovery responses her family home address in Yorba Linda, and the discovery responses do not negate the potential for having concurrently maintained a dual residence.  Accordingly, the court will not disregard Plaintiff’s evidence.

            Based on the evidence, the court finds plaintiff has raised a triable issue of material fact as to dual residency. Plaintiff’s evidence shows that before, during, and after the May 4, 2015 accident she maintained a room with many of her belongings, received mail and regularly stayed at the Yorba Linda home. During the years of 2014-2015, plaintiff spent approximately half her time in the Yorba Linda home. Plaintiff’s evidence also shows that plaintiff’ s parents paid most of her living expenses before, during, and after May 4, 2015.


            Additionally, there is evidence that Plaintiff’s father specifically, told Defendants’ agent, Jeff McFarland, prior to May 4, 2015, that Plaintiff was to be covered by the Policy.  McFarland assured Mr. Evensen that Plaintiff was covered.  McFarland also admitted to Mr. Evensen, after May 4, 2015, that Plaintiff was covered by the Policy.  When McFarland learned that Defendants were attempting to deny Plaintiff’s claim he explained to adjustor Cynthia Culley that if, for some reason, she thought there was no coverage it was due to his mistake.  McFarland insisted there was and should be coverage for Plaintiff.  


            In sum, the court cannot conclude as a matter of law that, under the Policy, Plaintiff was not a resident of the Yorba Linda home at the time of the accident.  Accordingly, summary judgment/adjudication is denied.


            The court notes that for the purposes of this motion it cannot conclude as a matter of law, but based on disputed facts, that Plaintiff was covered by the Policy.  Plaintiff appears to urge the court to reach this conclusion on page 20 of the opposition points and authorities.  However, “[s]ummary judgment cannot be granted in favor of a party opposing a motion for summary judgment unless he or she has filed a cross-motion and complied with all of the procedural requirements of CCP § 437c. [Miracle Auto Ctr. v. Sup.Ct. (Pacific Specialty Ins. Co.) (1998) 68 CA4th 818, 823, 80 CR2d 587, 589; Cuff v. Grossmont Union High School Dist. (2013) 221 CA4th 582, 595-596, 164 CR3d 487, 497—where party filed ‘hybrid’ opposition and cross-motion for summary judgment 60 days before hearing, court properly declined to rule on affirmative motion based on failure to give required 75-day notice; see Sierra Craft, Inc. v. Magnum Enterprises, Inc. (1998) 64 CA4th 1252, 1254, 75 CR2d 681, 682 (invalidating local rule purporting to provide otherwise)]” (Weil and Brown, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 10-G, §10:329.10.)  


            Plaintiff shall submit an order consistent with this ruling.



4.         SCV-260905, King v. Vista Sonoma Senior Living, LP


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



5.         SCV-261099, Vaccaro v. Nationstar Mortgage, LLC


            Defendants’ unopposed demurrer to the first amended complaint is sustained without leave to amend.


            This is a wrongful foreclosure action in which the foreclosure sale has yet to occur.  Defendants’ unopposed demurrer to the original complaint was sustained with 30 days leave to amend.  The first amended complaint (FAC) is substantively the same as the original complaint and still fails to correct the defects and state a cause of action.


First Cause of Action (Constructive Fraud):


            Plaintiff alleges Defendants owed him a fiduciary duty to disclose material facts and accounting concerning his Note and Deed of Trust.  He alleges Defendants knowingly failed to properly credit payments made by him on the loan so they could foreclose on the property and extract excessive fees, charges and interest from him.


            This cause of action fails because Plaintiff has still not alleged facts supporting each element of this claim with the required specificity.  For instance, Plaintiff has failed to allege facts showing that he actually relied on the purportedly inaccurate accounting of his loan payments to his detriment.  Plaintiff simply alleges that Defendants made the alleged “false representations and non-disclosures with knowledge of the misrepresentations, intending to induce Plaintiff’s reliance, which the unsuspecting Plaintiffs justifiably relied upon, resulting in damage to their credit standing, costs and loss of their property.”  (FAC, ¶ 41.) 


            Actual reliance and causation must of course be shown in this type of action in the same manner as in actions for actual fraud.”  (5 Witkin, Cal. Proc. 5th Plead § 717 (2008).)  Here, as in Knox v. Dean (2012) 205 Cal.App.4th 417, 434, Plaintiff has failed to identify any act taken in reliance on Defendants’ conduct.  The alleged inaccuracies and misrepresentations were not made to induce Plaintiff to enter the loan, so what reliance did they induce from Plaintiff?  Furthermore, Plaintiff has not alleged facts showing a causal connection between Defendants’ conduct and his harm.  No foreclosure sale has occurred so he has not lost the property.  And, Plaintiff has failed to allege he was otherwise current on his loan payments, or that he has actually paid any of the claimed excessive fees, charges and interest. 


Second Cause of Action (Violation of Business and Professions Code sections 17500, et seq.):


            To the extent that this cause of action relies on Defendants’ alleged lack of authority to foreclose because they have no interest in the Deed of Trust or promissory note, it fails.  Plaintiff admits the foreclosure sale has yet to occur.  Therefore, he lacks standing to bring this claim at this time.  (Saterbak v. JPMorgan Chase Bank, N.A. (2016) 245 Cal.App.4th 808, 814.)


            The remainder of Plaintiff’s allegations is the same as those in the original complaint.  The court has already found those allegations lacked the required specificity to state a claim as to any of the three prongs of the Unfair Competition Law.  For instance, Plaintiff provides no dates, names, or specific examples of the alleged deceptive business practices and the allegations regarding unlawful practices are insufficient to demonstrate any unlawfulness.


Third Cause of Action (Violation of California Homeowner Bill of Rights (“HBOR”)) and Fourth Cause of Action (Violations of Civil Code section 2923.5):


            These causes of action appear duplicative as they are both based on allegations that Defendants failed to contact Plaintiff in order to discuss alternatives to foreclosure at least 30 days before filing the Notice of Default.  The only remedy afforded by Civil Code section 2923.5 is postponement of the foreclosure sale.  (Hamilton v. Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4th 1602, 1616.)  Both claims fail here because, as Plaintiff concedes, no foreclosure sale is currently pending, so there is nothing for the court to postpone.


Fifth Cause of Action (Negligence):


            Plaintiff alleges Defendants were negligent in maintaining loan records and servicing his loan and they owed a duty not to “defraud” him.  This cause of action fails because, as addressed above in relation to the constructive fraud cause of action, Plaintiff has failed to allege facts showing Defendants’ alleged inaccurate accounting caused him harm.


Sixth Cause of Action (Intentional Infliction of Emotional Distress):


            Plaintiff alleges he suffered extreme emotional distress due to wrongful foreclosure.  This cause of action fails because foreclosure proceedings are not outrageous conduct.  As reasoned in Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009:At most, this was a creditor/debtor situation, whereby defendants were exercising their rights under the loan agreements.  There are no allegations that in conducting the foreclosure proceedings any of the Defendants threatened, insulted, abused or humiliated the Wilsons.  Thus, the Wilsons cannot state a claim for intentional infliction of emotional distress.”


Seventh - Tenth Causes of Action (Slander of Title, Quiet Title, Declaratory Relief and Fraud in the Concealment):


            These claims are all based on “securitization” claims which allege that Defendants have no interest in the deed of trust or promissory note and thus have no authority to foreclose.  These claims fail because Plaintiff lacks standing to bring them in this pre-foreclosure action.  (Saterbak v. JPMorgan Chase Bank, N.A., supra, 245 Cal.App.4th 808, 814.)   Because Plaintiff lacks standing, the court need not reach Defendants’ additional arguments regarding why these causes of action fail.


Eleventh Cause of Action (Treble Damages):


            Plaintiff improperly added these allegations without leave of court.  Regardless, these allegations are not a separate cause of action but a remedy.  Therefore, they fall with all the other claims.


            In sum, the demurrer to the first amended complaint is sustained for failure to state a cause of action.  Plaintiff has not filed in any opposition and has failed to correct the significant defects identified in the last demurrer.  Therefore, the court presumes Plaintiff cannot amend the first amended complaint to state a cause of action.  Accordingly, leave to amend is denied.


            Defendant shall submit an order consistent with this ruling.



6.         SCV-261153, Byrd v. Tatman


            Motion to quash service of summons is DENIED.


            This is a construction defect case in which Plaintiff alleges, inter alia, that the shingle siding used in the construction of the residence was defective.  Defendant Nichiha USA, Inc. (Nichiha) manufactured the shingles.


            The court takes judicial notice of the complaint as requested by both Plaintiff and Nichiha.


            Nichiha, a Georgia-based company with its principal place of business in Georgia, moves to quash service of summons for lack of general and specific personal jurisdiction.  Plaintiff Byrd (and those Defendants who join Plaintiff in opposing this motion) concedes general personal jurisdiction is inapplicable here but argues this court may exercise specific personal jurisdiction over Nichiha.  The court agrees.


            As stated in Bridgestone Corp. v. Superior Court (2002) 99 Cal.App.4th 767:


“[A] defendant is subject to “specific jurisdiction” only if (1) the defendant purposefully availed itself of the benefits of conducting activities in the forum state by purposefully directing its activities toward the state, thereby obtaining the benefits and protections of the state's laws [Citations]; (2) the dispute arises out of or has a substantial connection with the defendant's contacts with the state [Citations]; and (3) the exercise of jurisdiction would be fair and reasonable [Citations]. These guidelines are not susceptible of mechanical application, and the jurisdictional rules are not clear-cut. Rather, a court must weigh the facts in each case to determine whether the defendant's contacts with the forum state are sufficient. [Citations.]


A plaintiff opposing a motion to quash service of summons bears the initial burden to demonstrate facts that support the exercise of jurisdiction. If the plaintiff satisfies that burden, it then shifts to the defendant to “present a compelling case” that the exercise of jurisdiction would be unreasonable. [Citations.]”

(Bridgestone Corp. v. Superior Court, supra, 99 Cal.App.4th 767, 773–774.)


First Prong - Purposeful Availment


            “[A] manufacturer's placement of goods in the stream of commerce with the expectation that they will be purchased or used by consumers in California indicates an intention to serve the California market ‘directly or indirectly’ [Citation] and constitutes purposeful availment if the income earned by the manufacturer from sale or use of its product in California is substantial.” (Bridgestone Corp. v. Superior Court, supra, 99 Cal.App.4th 767, 777.)


            Nichiha argues the following facts demonstrate it did not purposefully avail itself of a California forum: Nichiha is not incorporated in California, and has no office, warehouse, or any other place of business or property in California.  Nichiha has no agent for service of process in California.  The orders facilitated by Nichiha’s two salespersons in California are accepted in Georgia, not California.  Nichiha does not direct any advertising specifically to California.  While Nichiha has a website, it does not allow any transactions through the website; instead, a person wanting to order siding must contact a Nichiha representative in Georgia.  Nichiha had no involvement in the resale of the siding, its transportation to the construction site, or its use and installation in Plaintiff’s home.  Nichiha contends its only connection to California in this case is the siding that Nichiha sold to Golden State Lumber is alleged to be defective.


            The opposing parties do not largely dispute the above-facts, but they add these significant facts: Golden State Lumber is a corporation organized and existing under the laws of the State of California and a supplier of lumber and other related products.  Golden State Lumber purchases Nichiha products through Capital Lumber.  Capital Lumber is a Nichiha distributor in both Northern and Southern California.  Capital Lumber’s sales figures for Nichiha products in California for the last 7 years are the following: 2017: $650,367.76; 2016: $697,220.73; 2015: $486,615.73; 2014: $384,677.04; 2013: $401,026.89; 2012: $204,052.36; 2011: $277, 762.70.  


            Additionally, Capital Lumber places the requested orders by Golden State Lumber with Nichiha.  Nichiha arranges for the freight and shipping of the product to California.  Nichiha delivers the product to Capital Lumber “FOB Destination California.”  That term of art in the industry means that the title to the goods shipped by Nichiha does not pass from the seller Nichiha to the buyer until it reaches its destination in California.  The goods in transit remain the inventory of the seller since technically the sale does not occur until the goods reach the destination.


            Finally, Nichiha’s website maintains a blog promoting a Southern California contractor as their “2017 builder of the 1st Quarter.”  


            The court finds that the “dispute at issue does not represent a commercially irrelevant shipment of goods, or goods that fortuitously arrived in California.”  (Luberski, Inc. v. Oleficio F.LLI Amato S.R.L., supra, 171 Cal.App.4th 409, 419.)  Rather, Nichiha placed its product in the stream of commerce with the expectation that it would be purchased or used by California consumers.  Specifically, Nichiha has a distributor in California: Capital Lumber.  Capital Lumber distributes directly to a California corporation, Golden State Lumber, which in turn supplied the product for use in Plaintiff’s California building project.  Furthermore, title to Nichiha’s goods does not pass from Nichiha to the buyer until they reach their destination in California.  Therefore, as reasoned in Luberski, Inc. v. Oleficio F.LLI Amato S.R.L. (2009) 171 Cal.App.4th 409, 419, Nichiha “had the expectation that the goods it was placing in interstate commerce would be utilized in California.”  (See also Shisler v. Sanfer Sports Cars, Inc. (2006) 146 Cal.App.4th 1254, 1258, where no specific jurisdiction found but: “It [was] undisputed that title to the vehicle passed to [the California] plaintiff when the shipper took possession of the vehicle in Florida.)  And, while “defendant's maintenance of the Web site alone is insufficient to establish personal jurisdiction,” Nichiha’s blog promoting a California contractor also indicates Nichiha had an expectation that its products would be used in California and arguably indicates an attempt to attract California consumers.  (Shisler v. Sanfer Sports Cars, Inc., supra, 146 Cal.App.4th 1254, 1261, underlining added.)


            The above facts show Nichiha’s intent to serve the California market.  And, Capital Lumber’s sales figures – over $650,000 of Nichiha products in 2017 alone – are sufficiently substantial (even assuming they include a re-sale mark-up by Capital Lumber) to constitute purposeful availment.


Second Prong - Substantial Connection Between Plaintiff’s Claim and Nichiha’s California Contacts


            The second element required for specific jurisdiction is established if “there is a substantial nexus or connection between the defendant’s forum activities and the plaintiff’s claim.”  (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Ca1.4th 434, 456.)


            Here, there is a direct connection between Nichiha’s contacts with California and Plaintiff’s products liability claim.  As found above, Nichiha’s contacts included placing its product into the stream of commerce with the expectation that it would be used by California consumers.  Nichiha’s product was indeed used by Plaintiff and he alleges it was a defective product.


            Therefore, the court finds a substantial connection exists.


Third Prong – Exercise of Jurisdiction Would Be Fair and Reasonable


            In evaluating the reasonableness of personal jurisdiction over a defendant, a court must consider (1) the burden on the defendant of appearing in the forum; (2) the forum state’s interest in adjudicating the claim; (3) the plaintiff’s interest in obtaining relief; (4) judicial economy; and (5) the states’ shared interest in furthering fundamental substantive social policies.  (Asahi Metal Industry Co., Ltd. v. Superior Court (1987) 480 U.S. 102, 115.)  


            Beyond its location in Georgia, Nichiha has not identified any facts specifically supporting the burden it would suffer if required to appear in this forum.  While Nichiha’s location in another state may be an inconvenience, California has a vital interest in providing its citizens with a forum to redress injuries caused by defective products sold and used in the state.  Plaintiff has a parallel interest in obtaining convenient and effective relief in California.  Finally, all the other parties to this action are located in California, as is the allegedly defectively constructed home.  Therefore, judicial economy will be served by exercising personal jurisdiction over Nichiha rather than requiring the parties to litigate another lawsuit in Georgia.  Consequently, the court finds it is fair and reasonable to exercise personal jurisdiction over Nichiha.


            Based on the foregoing, Nichiha’s motion to quash is denied.


            Plaintiff shall submit an order consistent with this ruling.



7.         SCV-261725, In Re: J. Taylor


            Petition dropped from calendar.  No proof of service for the amended petition was filed.  The court notes that if Petitioner re-notices this petition for hearing, it must provide a copy of the annuity contract and/or explain why the Emilya Taylor Special Needs Trust instrument was included in the petition.  It is unclear to the court what rights payee “J. Taylor as Trustee of the E.J. Taylor Trust 2” has to do with the payments which s/he seeks to sell.



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