May 23, 2017

TENTATIVE RULINGS

LAW & MOTION CALENDAR

Wednesday, May 24, 2017, 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 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 Court by telephone at (707) 521-6730, and all other opposing parties of your intent to appear by 4:00 p.m. today, Tuesday, May 23, 2017.  Parties in small claims cases and motions for claims of exemption are exempt from this requirement.

 

1.  MCV-222927, Cavalry SPV I v. Ortiz

Appearance required.

 

 

2.  MCV-233407, Hernandez v. Nichols

Appearance required.

 

 

3.  MCV-239208, Collectronics, Inc. v. Navarro

Plaintiff’s unopposed motion for appointment of receiver pursuant to Code of Civil Procedure section 708.630, and to appoint Michael Brewer as receiver is granted.  Other methods to enforce the judgment have proved ineffective.  Therefore, the court finds appointment of a receiver to seize and sell Defendants’ liquor license (number 575115) is warranted under the circumstances.  Based on Mr. Brewer’s declaration, the court finds he is well-qualified to act as the receiver.  Mr. Brewer shall post an undertaking in the amount of $1,000 upon his appointment.

 

Plaintiff shall submit an order consistent with this ruling which details Mr. Brewer’s powers and duties.

 

 

4.  SCV-257639, Fuentes v. Stewart

Plaintiff’s motion to strike the entire cost memorandum is denied, but the court grants the motion to strike or tax some costs.

 

The court finds that voluntary mediation in this action may have been convenient or beneficial to preparation of the case, but it was not reasonably necessary to the conduct of the litigation.  Therefore, the court exercises its discretion to strike the mediation costs in the sum of $1,050.

 

The court further finds that the $13,100 in expert witness fees for Dr. Cerruit are unreasonable based on the excessive hourly rate charged.  The court strikes all but $3,450 of Dr. Cerruit’s fee.  Costs are awarded in the amount of $8,673.40.

 

Plaintiff shall submit an order consistent with this ruling.

 

 

5.  SCV-260133, Ford v. BSI Financial Services, Inc.

DROPPED from calendar at the request of counsel for moving party; dismissal filed as to moving party BSI Financial Services, Inc. on May 19.

 

 

6.  SCV-260140, Cattich v. First National Bank of Northern California

Defendant First National Bank of Northern California’s (“FNB”) general demurrer is sustained without leave to amend.

 

FNB’s request for judicial notice of various documents filed in related court cases is granted but not for the truth of the matters asserted therein.

 

The court overrules FNB’s special demurrers but sustains the general demurrer on the ground that Plaintiff Cattich’s claims in this case should have been asserted in a compulsory cross-complaint in FNB v. Cattich (SCV-258109) pursuant to Code of Civil Procedure section 426.30.

 

In FNB v. Cattich (“FNB judicial foreclosure action”), FNB’s claims are based on a business loan made to Cattich and secured by Cattich’s real property in Cotati.  In that action, FNB alleges causes of action for: (1) judicial foreclosure of the deed of trust; (2) specific performance for appointment of receiver and injunctive relief; (3) claim and delivery; and (4) conversion.

 

In this action, Cattich’s core claim is that FNB has no valid security interest in the subject real property.  Consequently, Cattich contends the deed of trust is void and FNB cannot foreclose.  Cattich alleges the following causes of action: (1) cancellation of instruments; (2) wrongful foreclosure; (3) accounting; (4) recoupment; (5) constructive fraud; and (6) intentional infliction of emotional distress.

 

As stated in Align Technology, Inc. v. Bao Tran (2009) 179 Cal.App.4th 949, 959-60:

 

Section 426.30, subdivision (a), provides that “if a party against whom a complaint has been filed and served fails to allege in a cross-complaint any related cause of action which (at the time of serving his answer to the complaint) he has against the plaintiff, such party may not thereafter in any other action assert against the plaintiff the related cause of action not pleaded.” As used in the compulsory cross-complaint statute, the term “complaint” includes both a complaint and cross-complaint (§ 426.10, subd. (a)), and the term “plaintiff” includes both a plaintiff and cross-complainant (§ 426.10, subd. (b)). And the phrase “related cause of action” in section 426.30 is defined as “a cause of action which arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in his complaint.” (§ 426.10, subd. (c).) Because of the liberal construction given to the statute to accomplish its purpose of avoiding a multiplicity of actions, “transaction” is construed broadly; it is “not confined to a single, isolated act or occurrence ... but may embrace a series of acts or occurrences logically interrelated [citations].” (Saunders, supra, 231 Cal.App.2d at p. 336, 41 Cal.Rptr. 703; see also Currie Medical, supra, 136 Cal.App.3d at p. 777, 186 Cal.Rptr. 543.)

 

In addition, section 426.30 includes a timing element. The related cause of action must be one that was in existence at the time of service of the answer (§ 426.30, subd. (a)); otherwise, the failure to assert it in prior litigation is not a bar under the statute. (Crocker Nat. Bank v. Emerald (1990) 221 Cal.App.3d 852, 864, 270 Cal.Rptr. 699.)

 

Here, all of Cattich’s causes of action clearly arise from the same transaction that is at issue in FNB’s judicial foreclosure action:  the business loan made to Cattich which was secured by the subject real property in Cotati.  Accordingly, the causes of action alleged here are related to those in FNB’s judicial foreclosure action and should have been asserted in that action as a compulsory cross-complaint.

 

As for the timing element of Code of Civil Procedure section 426.30, it seems Cattich is relying on Yvanova v. New Century Mortg. Corp. (2016) 62 Cal.4th 919 to argue that the causes of action alleged here were not in existence at the time he served his answer in the FNB foreclosure case.  The Yvanova court held: “Our ruling in this case is a narrow one.  We hold only that a borrower who has suffered a nonjudicial foreclosure does not lack standing to sue for wrongful foreclosure based on an allegedly void assignment merely because he or she was in default on the loan and was not a party to the challenged assignment.”  (Yvanova v. New Century Mortg. Corp., supra, 62 Cal.4th 919, 924.)

 

It is highly questionable whether Yvanova would even apply here since Cattich is challenging a judicial foreclosure based on a business loan.  Additionally, FNB’s predecessor, America California Bank, is not alleged to have assigned its rights and interest in the note, loan and deed of trust to FNB.  Rather, FNB alleges in its foreclosure action that it acquired such rights and interests when it merged with America California Bank.

 

In any event, Yvanova was decided in February 2016, two months before Cattich filed his answer in the FNB judicial foreclosure case on April 15, 2016.  Therefore, it was possible for Cattich to have filed his cross-complaint with the benefit, if any, of the holding in Yvanova.

 

In sum, the general demurrer is sustained without leave to amend.

 

Defendant shall submit an order consistent with this ruling.

 

The court appreciates the time and effort expended by the demurrer facilitator, Mitchell Greenberg, Esq.

 

 

7.  SCV-260480, In Re: J. Gonzales

CONTINUED to 6/14/17 at the request of counsel for moving party.

 

 

8.  SPR-87824, Estate of William Doyle Campbell

This matter is continued to Wed., Aug. 9, 2017, at 3:00 p.m.

 

© 2017 Superior Court of Sonoma County