Nov 30, 2015

Related Links

1. MCV-223567, Calvalry SPV v. Johnson

The Claim of Exemption is granted, based on the financial information submitted by defendant under penalty of perjury in his claim of exemption.

2. MCV-235441, Gama v. CA Dept. of Social Services

Defendant demurs to the complaint in this limited civil action on the ground that the complaint fails to allege any facts and therefore necessarily fails to allege facts sufficient to plead any cause of action. The complaint is on a judicial counsel form complaint. The form complaint for breach of contract states, by names only, that plaintiff is asserting claims for professional negligence, discrimination, harassment, and that plaintiff alleges intentional infliction of emotional distress. There are no factual allegations on any of the three pages comprising the form complaint. Plaintiff attached two letters and also partial pleadings from other cases as exhibits to the complaint, including a letter in which she threatens to sue at least one of the defendants. In its present form the complaint cannot withstand defendant’s demurrer. It does not allege facts sufficient to constitute any cause of action. Plaintiff is self-represented. At the Case Management Conference on August 27, 2015 the court and parties discussed the upcoming hearing on defendant’s demurrer. Plaintiff indicated that she intended to retain counsel. The court and the parties also discussed the possibility of a stipulation to amend the complaint. No stipulation has been filed; no amended complaint has been filed; no opposition to the demurrer has been filed; and no attorney has appeared on behalf of plaintiff. The burden is on the plaintiff to show in what manner she can amend the complaint to state a cause of action. (Medina v. Safe-Guard Products (2008) 164 Cal.App.4th 105, 112, n. 8.) As plaintiff has not filed any opposition to the demurrer and has not filed an amended complaint, she has not met her burden. Accordingly, the demurrer will be sustained without leave to amend unless plaintiff appears at the hearing and makes the required showing.

Defendant is to submit a written order consistent with this ruling.

3. SCV-255392, Burke v. Kelly

The court thanks attorney Joshua West for his service as the discovery facilitator in this matter.

This is now an action for malicious prosecution against an attorney, all other parties having been dismissed with prejudice, in particular the clients in the underlying action. Plaintiff seeks an order for discovery of the financial condition of defendant. Plaintiff must prove a substantial probability that she will prevail on the claim to obtain pretrial discovery of defendant’s financial condition. (CC § § 3249, 3295(c).) Because of the two actions, reference to the parties by their roles as plaintiff or defendant would be confusing, so the court will refer to the parties by name.

The court’s obligation in ruling on a motion for pretrial discovery of a defendants’ financial condition has been articulated as follows: “[W]e interpret the language of section 3295(c), requiring the trial court to find based on supporting and opposing affidavits that the plaintiff has established there is a substantial probability he will prevail on his claim for punitive damages, to mean that before a court may enter an order permitting discovery of a defendant's financial condition, it must (1) weigh the evidence submitted in favor of and in opposition to motion for discovery, and (2) make a finding that it is very likely the plaintiff will prevail on his claim for punitive damages. In this context, we interpret the words “substantial probability” to mean “very likely” or “a strong likelihood” just as their plain meaning suggests. We note that the Legislature did not use the term “reasonable probability” or simply “probability,” which would imply a lower threshold of “more likely than not.” Jabro v. Superior Court (Hill) (2002) 95 Cal.App.4th 754, 758.)

Kelly properly cites Swat-Fame, Inc. v. Goldstein, (2002) 101 Cal.App.4th 613, 625-626 for the proposition that denial of Burke’s demurrer to the complaint in the underlying action proves the existence of probable cause to file the action. (See also portions of letter from Burke’s attorney, quoted below.) Kelly’s Declaration stating that he bore no personal animus toward Burke is not dispositive on the issue of malice. The malice required in an action for malicious prosecution is not limited to actual hostility or ill will. It exists when the proceedings are instituted primarily for an improper purpose. (See Singleton v. Perry (1955) 45 Cal.2d 489, 495; Albertson v. Raboff (1956) 46 Cal.2d, 375, 383.) The issue is not whether the facts were true when the complaint was filed but whether they were true to the best of Kelly’s knowledge. Burke relies on the deposition of Douglas Ghiselin in this action to argue that Kelly could not reasonably have relied on the word of the Ghiselin’s when he filed the underlying complaint and/or that Kelly did not rely on the facts as represented to him by Ghiselin. The deposition testimony of Douglas Ghiselin cited by Burke is not sufficient to make the required showing. It is largely speculative as to Kelly’s state of mind. (Again, see also portions of letter from Burke’s attorney, quoted below.)

As Burke correctly notes, malicious prosecution can include continuing to prosecute a lawsuit after discovery of a lack probable cause. (Swat-Frame was overruled by Zamos v. Stroud (2004) 32 Cal. 4th 958, 973, insofar as it was inconsistent with this holding in Zamos (subsequent history not relevant to this holding omitted.) Burke contends that the letter her attorney sent to Kelly as counsel for the Ghiselins in the underlying action, proves that Kelly’s failure to immediately dismiss the complaint proves he prosecuted the action thereafter without probable cause and therefore with malice. The letter states, among other things: “We believe your clients have a complete misunderstanding of what was asked of them” and later “We strongly urge you to discuss this matter further with your clients and investigate the facts of this matter before requiring Ms. Burke to file an answer to your complaint. Although we believe that the facts related to you by your clients may have justified filing the complaint in the first instance, certainly pursuing it in light of what I have informed you in this letter would be inappropriate, and the basis for possible action following the dismissal of your lawsuit.” The letter, setting forth an alternate factual scenario and inviting Kelly to investigate it, is not sufficient, standing alone, to prove that Kelly acted with malice because he did not immediately dismiss the action or withdraw.

Weighing the evidence provided by both sides, the court finds that Burke has failed to demonstrate that it is very likely Burke will prevail on her claim for punitive damages. (Jabro v. Sup.Ct. (Hill) (2002) 95 Cal.App.4th 754, 758.)

The motion for discovery of Kelly’s financial condition is denied without prejudice.

Plaintiff is to submit an order consistent with this ruling.

4. SCV-256011, Henry v. Beyer Financial

The court thanks attorney George Keller for his service as the demurrer facilitator in this matter.

Plaintiffs and Cross-defendants demurred to the fifth, sixth, seventh, and eighth causes of action in the cross-complaint on the grounds that each fails to allege facts sufficient to state a cause of action.


Fifth and Sixth Causes of Action

The fifth cause of action is for Conspiracy to Commit Fraud. The sixth cause of action is for Aiding and Abetting Fraud. First, the cross-complaint alleges sufficiently specific facts to constitute a cause of action for fraud. With regard to the fraud, the cross-complaint alleges a conspiracy; i.e., an agreement by two or more persons to commit a wrongful act. (See CC, ¶57.) Tt also alleges substantial assistance by each party to commit the alleged wrongful acts. For example, it alleges Myrita Henry and Thomas Henry provided the funds Nolan Henry needed to defraud the cross-complainants. Therefore, the demurrers to these causes of action are overruled.

Seventh and Eighth Causes of Action

The seventh and eighth causes of action are for RICO violations and conspiracy to commit RICO violations. More specifically, the seventh cause of action alleges several activities that would support an indictment under 18 USC §§ 1951 (Extortion), 1341 (Mail Fraud), and 1343 (Wire, Radio, TV Fraud).

To plead a civil RICO cause of action a plaintiff must allege: (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity (5) which injured his business or property. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 77.)

With regard to the claim of extortion, the cross-complaint fails to allege Cross-defendants “obtained” property by wrongful use of actual or threatened force, violence, or fear, or under color of official right. (See 18 USC § 1951(2)(b).)

With regard to the claims of mail, wire, radio, or television fraud, the cross-complaint fails to allege the use of mail, wire, radio, or television. Additionally, it fails to allege a pattern of “racketeering activities.”

A pattern requires at least two predicate acts from the list of activities set forth in 18 USC § 1961(1). (Gervase v. Superior Court (1995) 31 Cal.App.4th 1218, 1232.) The cross-complaint does not allege two acts which would be indictable under 18 USC §§ 1951, 1341 or 1343. Therefore, the demurrer to the seventh and eighth causes of action are sustained with leave to amend.

Cross-defendants are to submit a written order consistent with this ruling.

Anti-SLAPP motion and Motion to Strike

Plaintiffs and Cross-defendants Myrita Henry and Thomas Henry move for an order to strike defendants’ entire cross-complaint pursuant to CCP § 425.16 (the Anti-Slapp statute), and they move to strike Cross-complainants’ request for punitive damages.

Cross-complaints allege fraud, breach of contract, and common counts based upon cross-defendant Nolan Henry’s investment in, and retention of, property owned by Beyer Financial Corp, Express Auto Funding, and S&B Capital Corporation. Cross-defendants have failed to meet their burden to show that the allegations forming the basis of the enumerated causes of action stem from protected activity.

Fraud supports a request for punitive damages. (Civ. Code § 3294(a).)

The motions are denied.

Cross-complainants are to submit a written order consistent with this ruling.

5. SCV-257094, Beasley v. Jinks

The court thanks attorney Bonnie Freeman for her service as the Discovery Facilitator in this matter.

Plaintiffs Derrick Beasley and Amanda Johnson move to quash subpoenas served by Defendant Forrest Jinks on upon Sonoma Valley Hospital, Sonoma Valley Emergency Physicians Medical Group, and Sonoma Valley Community Health Center.

Prior to the hearing on this motion, the parties worked with the discovery facilitator to resolve all issues raised by the motions except the issue of sanctions.

The parties filed cross-motions for sanctions. There were substantial efforts to meet and confer in good faith; there were also some unfortunate failures of communication during the process—for example, an email sent by defense counsel but apparently not received by plaintiff’s counsel. The court finds that both parties acted in good faith and that no award of sanctions is appropriate.

Plaintiffs are to submit a written order consistent with this ruling.

6. SCV-254476, Hirst v. SP Carpet Pros, Inc.

Appearances are required. The Final Fairness and Approval hearing in this matter was set for November 18, 2015 by the court’s Amended Order Granting Certification of Settlement Class and Preliminary Approval of Class Action Settlemetn, filed July 31, 2015. In the same order, the court set October 23, 2015 as the deadline for class counsel to present to the court a declaration by the Settlement Administrator of due diligence and proof of mailing of the Notice of Claim Form. On October 21, 2015, class counsel filed the Declaration of Josephine Bravata concerning Mailing of Notice of Class Action Settlement and Settlement Hearing. The original declaration in the court file appears to be missing the first page. If Plaintiff has not already filed a complete copy of the Declaration of Josephine Bravata, Plaintiff is ordered to bring a complete copy to the hearing. Also in the July 31, 2015 Order the court ordered class counsel to file a Motion for Final Approval of Class Action Settlement and for Award of Attorneys’ Fees, Costs, and Class Representative Enhancement. The motion was filed on October 16, 2016, as directed by the court. The motion was assigned a hearing date of January 13, 2016, rather than the November 18, 2015 date set by the court. This was not brought to the court’s attention until the afternoon of November 13, 2015. Accordingly, the court is requiring appearances to ensure that all of the requirements of the court’s July 31, 2015 order have been met, including notice to the class of only the correct hearing date.

7. SCV-257877, Taylor v. Recine

Special Set at 4:00 p.m.: Appearance required.




WEDNESDAY, NOVEMBER 18, 2015, 3:30 P.M.

Courtroom 18 – Hon. Nancy Case Shaffer

3055 Cleveland Avenue, First Floor, 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 assigned 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, NOVEMBER 17, 2015.  Parties in small claims cases and motions for claims of exemption are exempt from this requirement.




© 2015 Superior Court of Sonoma County