Apr 19, 2014

Tentative Rulings
Law and Motion Calendar
Wednesday,  April 16, 2014, at 3:30 p.m.
Courtroom 18 -- Hon. Nancy Case Shaffer
3055 Cleveland Avenue, Santa Rosa, CA

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 Shaffer's Judicial Assistant by telephone at (707) 521-6729, 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-226936, Portfolio Recovery v. Kashi
Appearances required regarding claim of exemption.
2.  MCV-230047, Ramirez v. Moreno
Appearances required.
3.  SCV-251909, Healdsburg Unified School District v. Wright
Motion to Approve Good Faith Settlement dropped due to settlement of entire action.
4.  SCV-252011, Dry Creek Rancheria Band of Pomo Indians, et al. v. Lexington Ins. Co.
Defendant’s counsel  filed an application on behalf of Jeffrey Weinstein (motion #1), Renee Plessner (motion #2) and George Buermann (motion #3) to appear as counsel pro hac vice pursuant to CRC Rules, Rule 9.40.
With regard to Jeffrey Weinstein and Renee Plessner, the applications fail to fully comply with CRC Rules, Rule 9.40, as they do not state the date of each application for admission pro hac vice and whether or not it was granted. (See CRC, Rule 9.40(d)(5) [The application “must” state the title of court and cause in which the applicant has filed an application to appear as counsel pro hac vice in this state in the preceding two years, the date of each application, and whether or not it was granted.)  These motions are continued to May 7, 2014 to allow defendant to provide the missing information.
With regard to the application for George Buermann, the motion is granted.
Defendant’s counsel is to draft an order consistent with this ruling.
5.  SCV-253996, Graving-Reyes v. Reyes
Defendant Jeffrey Reyes moves pursuant to CCP § 397 to transfer venue to the Mendocino County Superior Court.  Pursuant to CCP § 396b(b), defendant moves for an award of $2,500 in attorney fees and expenses for having to make this motion.
Defendant has only provided proof of service of the Notice of Hearing. He has not provided proof of service of the motion and accompanying documents. Therefore, the motion is granted conditioned upon defendant filing proof of service by the time of the hearing on this motion that the motion documents were served in compliance with CCP § 1005. Sanctions are denied. Plaintiff’s counsel has not opposed the motion. Therefore, an award of expenses and fees is not appropriate pursuant to CCP § 396b(b).
If defendant fails to provide proof of service of the motion by the time of the hearing, the motion will be denied without prejudice.
Defendant is to draft an order consistent with this ruling.
6.  SPR-81330, In the Matter of The Gilkinson Family Trust dated December 22, 1998
Erika Parker, as executor of the estate of Jerrold McGovern, moves for an order enforcing a written settlement agreement entered into between petitioner Jerrold McGovern and respondent Grant L. Gilkinson, Successor Trustee of the Gilkinson Family Trust.
The motion is unopposed.
If parties to pending litigation stipulate, in a written document signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, pursuant to Code of Civil Procedure section 664.6 the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.  CCP § 664.6 allows the court to interpret the terms and conditions to settlement.  (Fiore v. Alvord (1985) 182 Cal.App.3d 561, 566.)  The judge hearing the motion may determine disputed factual issues that have arisen regarding the settlement agreement. It even permits the court “to entertain challenges to the actual terms of the stipulation, that is, whether there actually was a settlement ... and to interpret the terms and conditions to settlement.” (Id.)
The settlement agreement is attached as Exhibit 2 to the declaration of Margaret Flynn.  It is signed by the parties. It specifically states that it is enforceable pursuant to CCP § 664.6. The agreement states that petitioner McGovern would perform a survey of the property and “[i]n the event that it is determined that the fence line is not on the legal boundary of the parcels, the parties agree that each will pay one-half of any cost of relocating the fence line to the legal boundary. The parties will agree on a mutually acceptable individual or company to perform the fence work.” (Settlement Agreement, § 12.E.) It is clear that the settlement agreement does not require the construction of a new fence—only the relocation of the exiting one.
The motion is granted. The court will enter judgment pursuant to the terms of the settlement agreement.
The agreement also states that in the event one party has to enforce the agreement, that party shall be entitled to reasonable attorney fees and costs. (Settlement Agreement, ¶ 6.) Petitioner is awarded $962.50 in attorney fees and $60 in costs.          
Petitioner is to submit an order consistent with this ruling.
7.  SPR-85479, In Re the Johnson Family Trust dated July 16, 2003
Respondent Sandra Johnson moves for an order striking the petition filed by petitioner Eric Johnson on the ground that the unverified petition is not drawn or filed in conformity with CRC, Rule 7.103. Subsequent to filing this motion, in reply to petitioner’s opposition, respondent indicated a desire to withdraw her motion to strike.  Accordingly, the motion to strike is dropped.
Respondent demurrers generally to the petition on the ground that it fails to state facts sufficient to constitute a cause of action, that it is not properly before the court, and for being uncertain.  Respondent’s general demurrer to the entire petition is overruled.  Respondent has not provided authority that would support sustaining a demurrer to the entire petition.
Respondent has not provided authority that the trust documents must be attached to the petition.  Petitioner claims these are in respondent’s possession.
With regard to respondent’s claim that the petition is uncertain because it does not state whether she is being sued in her capacity as a successor co-trustee or individually, it appears that she is being sued in both capacities.
With regard to respondent’s claim that the petition does not allege facts sufficient to show that allowing respondent to continue as successor co-trustee would be detrimental to the Trust, the petition alleges respondent has converted Trust assets and has failed to respond to petitioner’s requests for an allocation of assets and for an accounting.  If the allegations are proven, they would be sufficient grounds for respondent’s removal as successor co-trustee.
Respondent has not provided authority that as successor trustee, she need only account for trust activities during her time as trustee.
Respondent has not provided authority that petitioner cannot sue her because he is the co-trustee and may have breached his own duties to the trust.
With regard to Probate Code § 17200(b)(7), the petition does not specifically state the requirements set out in that code section. The petition only states that respondent made repeated demands and no accounting has been provided. The petition was filed one year and 21 days after the death of the surviving settlor. However, the petitioner’s request for an accounting is just one of many requests. Therefore, respondent’s general demurrer to the entire petition on this ground cannot be granted as it would not dispose of the entire petition.
The petition does not appear to be premature with regard to asking that trustee compensation be settled and that would not be a ground for demurrer under CCP § 430.10.
Petitioner is to submit an order consistent with this ruling.
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