Aug 30, 2015

TENTATIVE RULINGS

LAW & MOTION CALENDAR

WEDNESDAY, August 26, 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, August 26, 2015.  Parties in small claims cases and motions for claims of exemption are exempt from this requirement.

 

 

 

1. MSC-185578; Blake v. Pioneer 2000 Apartments

APPEARANCE REQUIRED

2. SCV-234700; State Farm Fire v. Wier

This matter was originally set for hearing on August 12, 2007. The court continued Plaintiff’s motion for prejudgment interest to allow Plaintiff to submit a brief addressing the holding in North Oakland Med. Clinic v. Rogers (1998) 65 Cal. App. 4th 824, 830 that a request for pre-judgment interest should be made before entry of judgment. (See also CRC 3.1802) and also to address whether there is any stay in effect in this proceeding as the result of the most recent appeal. No briefing was received. Accordingly, Plaintiff’s request for prejudgment interest is denied.

3. SCV-249622; Fedco v. Meadowlark Properties

Defendant Centennial Homes, Inc. moves to set aside the default and default judgment that were entered against it on July 13, 2011, and April 24, 2013, respectively, the grounds that they are void.

This court has previously held that Plaintiff’s Second Amended Complaint contained material and substantive allegations different from the complaint upon which the defaults were based. Therefore, the default and default judgment based upon the original complaint are void. (See Leo v. Dunlap (1968) 260 Cal. App. 2d 24, 27.)

Accordingly, the court hereby sets aside and vacates the default and default judgment against defendant Centennial Homes, Inc.

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

4. SCV-252825; Stavrinides v. OneWest

Defendants OneWest Bank and MERS demur to plaintiff’s second amended complaint filed on January 15, 2014.

Defendants’ request that the court take judicial notice of various recorded documents is granted.

Plaintiffs’ action has been brought to set aside a trustee sale of 7493 Mercedes Way in Rohnert Park (“subject property”). The Second Amended Complaint (“SAC”) alleges causes of action for: (1) Wrongful Foreclosure, Lack of Standing; (2) Predatory Loan, Fraud in the Concealment; (3) Fraud in the Inducement; (4) Slander of Title; (5) Violation of TILA, 15 U.S.C. § 1601, et seq; (6) Violation of RESPA, 1 U.S.C. § 2601, et seq.; (7) Rescission; and (8) to Set Aside Trustee Sale.

California courts have refused to allow trustor-debtors to pursue judicial actions to challenge the right, power, and authority of a foreclosing beneficiary or beneficiary's agent to initiate and pursue foreclosure. (Jenkins v. JP Morgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 511.) California's nonjudicial foreclosure scheme has an “ ‘ “exhaustive nature,” ’ ” which is intended “ ‘ “(1) to provide the [beneficiary-creditor] with a quick, inexpensive and efficient remedy against a defaulting [trustor-debtor]; (2) to protect the [trustor-debtor] from wrongful loss of the property; and (3) to ensure that a properly conducted sale is final between the parties and conclusive as to a bona fide purchaser.” ’ ” ( Id. at 509–510, quoting Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1154.) Regardless, defendants have demonstrated their right, power and authority to pursue foreclosure against the subject property. (See RJN, Exs. 1-6.)

Plaintiffs lack standing to challenge purported violations of the investment trust's pooling and servicing agreement. (See Jenkins v. JP Morgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 515; see also Herrera v. Federal Nat. Mortg. Assn. (2002) 205 Cal.App.4th 1495, 1507.)

With regard to Plaintiff’s fraud causes of action and causes of action for Violations of TILA and RESPA, the allegations do not address actions on the part of OneWestBank or MERS. Statutory claims and claims based upon fraud must be alleged with particularity. (Committee on Children’s Television Inc. v. General Foods Corp. (1983) 35 Cal. 3d 197, 216; Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 809.) In fraud complaints against a corporation, plaintiff must allege: the names of the persons who made the misrepresentations; their authority to speak for the corporation; to whom they spoke; what they said or wrote; and when it was said or written. (Lazar v. Sup.Ct. (Rykoff–Sexton, Inc.) (1996) 12 Cal. 4th 631, 645; Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal. App. 4th 153, 157. )

Additionally, as the subject loan occurred in 2005, these allegations are barred by the statute of limitations. (See CCP §§ 340, 338.)

Accordingly, the demurrer is sustained without leave to amend.

5. SCV-254959; Reynolds v. Ford Motor Co.

Defendant Ford Motor Company moves for summary judgment or, in the alternative, summary adjudication of each of the six causes of action alleged against it. The court will address Defendant’s arguments in the order outlined in its memorandum of points and authorities.

Defendant’s objections to portions of the declarations of Thomas Lepper, Kevin Van Hout, and Peter Reynolds are overruled.

For the reasons set forth below, Defendant’s motion for summary judgment is denied. Defendant’s motion for summary adjudication of Plaintiff’s fifth cause of action for violation of the Consumer Legal Remedies Act is granted. The motion for summary adjudication is denied as to the remaining causes of action.

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

Statute of Limitations

Defendant argues that the Discovery Rule does not apply to toll Plaintiff’s first through fifth causes of action.

The “discovery rule,” postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807.) The statute of limitations begins to run when the plaintiff suspects or should suspect that the injury was caused by wrongdoing.(Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110-11.) Resolution of the statute of limitations issue is normally a question of fact. However, whenever reasonable minds can draw only one conclusion from the evidence, the question becomes one of law. The issue then is whether the trial court could determine as a matter of law that failure to discover was due to failure to investigate or to act without diligence. (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1320.)

Defendant has established that there were a variety of problems with the subject vehicle prior to October 4, 2010. However, it is not clear, as a matter of law, that those problems should have put Plaintiff on notice that the engine itself—as opposed to peripheral mechanisms—was defective.

A triable issue of fact exists with regard to when plaintiff discovers or could have discovered through the exercise of reasonable diligence all facts essential to the causes of action.

Equitable Tolling:

The judicially created equitable tolling rule requires a showing of three elements: “timely notice, and lack of prejudice, to the defendant, and reasonable and good faith conduct on the part of the plaintiff.” (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 102.) Defendant has not adequately addressed the issue of prejudice in the context of an individual case related to class action lawsuits. Therefore, it has not met its burden on this issue.

Defendant has also not met its burden to show that no triable issue of material fact exists with regard to the alleged lack of good faith by the Plaintiff.

Cross-jurisdictional tolling:

Defendant has not addressed the California class action lawsuits cited in Plaintiff’s complaint. (See Hatfield v. Halifax PLC (9th Cir. 2009) 564 F3d 1177.) Therefore, Defendant has not met its burden on this issue.

Fifth Cause of Action - CLRA

Based upon concessions made during the course of discovery, it is clear that Plaintiff purchased the vehicle primarily for business purposes. (See Civ. Code § 1761(a),(d); Visueta v. General Motors Corp. (1991) 234 Cal.App.3d 1609, 1613.) Therefore, Plaintiff is not a “consumer” as defined by the Act and does not have standing to bring this claim. Defendant is entitle to summary judgment on this claim.

Sixth Cause of Action – Song-Beverly Consumer Warranty Act

A triable issue exists regarding the number of vehicles owned by the Plaintiff. (See Plaintiff’s declaration, ¶¶ 3-7, Exs. 1-3.)

Economic Loss Rule

The Economic Loss Rule does not bar damages for duties arising independently from any breach of contract claim. (Robinson Helicopter Co. v. Dana Corp. (2004) 34 Cal.4th 979, 989; Erlich v. Menezes (1999) 21 Cal.4th 543, 551.)

6. SCV-255399; Sargent v. Board of Trustees

Motion to Compel - Plaintiff’s Request for Production of Documents, Set Two:

Plaintiff’s motion to compel further responses to his Request for Production of Documents, Set Two, is GRANTED, with the revision that Request Number 26 is limited to documents from 2012 to the present. Defendants are ordered to provide further responses within 30 days of service of this order.
Plaintiff is to submit a written order consistent with this ruling.

Motion to Compel – Plaintiff’s Request for Production of Documents, Set Three:

Plaintiff’s motion to compel further responses to his Request for Production of Documents, Set Two, is GRANTED with respect to Request Numbers 28-42, 46, 50, 72, 74, 82, 92, and 101-103. Defendants are ordered to provide further responses to these requests within 30 days of service of this order. Plaintiff has not shown that good cause exists to compel production of the remaining requests. Therefore, the motion is DENIED as to all remaining requests not identified above.
Plaintiff is to submit a written order consistent with this ruling.

7. SCV-256579; Santa Rosa Teachers v. Santa Rosa City Schools

RULINGS ON A) SUBMITTED MOTION FOR JUDGMENT ON THE PLEADINGS AND B) PRESENT MOTION TO COMPEL ARBITRATION

A. Motion for Judgment on Pleadings

After consideration of the argument of counsel at the hearing on this motion, the court adopts the tentative ruling on the Motion for Judgment on the Pleadings in advance of the Law and Motion hearing on June 10, 2015, as modified here:

Defendant Santa Rosa City Schools (“District”) moves for judgment on the pleadings as to Plaintiff’s petition to compel arbitration and complaint for breach of contract.

A motion for judgment on the pleadings tests the sufficiency of the allegations. The court may not weight evidence or otherwise resolve disputed facts. In granting or denying a motion for judgment on the pleadings, the complaint must be “liberally construed, with a view to substantial justice between the parties.” (CCP § 452.) Less particularity is required in pleading matters as to which the defendant has superior knowledge. A complaint is sufficient to withstand a demurrer if it provides the defendant with “notice of the issues sufficient to enable preparation of a defense.” (Doe v. City of Los Angeles (2007) 42 Cal. 4th 531, 549–550.)

The motion with respect to the first cause of action for Petition to Compel Arbitration of the Kiech Grievance is granted. While the Kiech grievance alleges a procedural violation—that the District did not follow the steps for progressive discipline as laid out in Article 17—Article 17.1.1 authorizes the District to skip progressive discipline when the nature of the offense or the possible consequences of repetition require immediate action. The manner in which the District applied its discretion is not a procedural violation. Accordingly, this issue is not subject to the grievance procedure. (See Collective Bargaining Agreement (“CBA”), § 17.1.6.)

Nothing in this ruling is intended to shall be deemed to preclude arbitration of the issue of whether the District properly exercised its discretion when it elected to skip the steps for progressive discipline.

The motion with respect to the second cause of action for Petition to Compel Mediation of the Hopkin Grievance is denied. This cause of action alleges, in part, that the District did not comply with Article 17.1.1’s requirement that the grounds for disciplinary action be this listed in Education Code § 44932 and 44922. This is one consideration in a series of procedural steps laid out in Article 17 of the CBA that the District must apply. Therefore, this cause of action properly alleges a procedural violation of Article 17 of the CBA that is subject to the grievance procedure. (See CBA, § 4.1.1 and Article 17; Complaint, ¶¶ 13-14, 16-20.)

With respect to the third cause of action for Breach of Contract as to the Kiech Grievance and the fourth cause of action for Breach of Contract as to the Hopkin Grievance, Defendant has not met its burden to establish that these causes of action fail to allege sufficient facts to state a cause of action or that the Districts’ actions taken pursuant to the CBA are not subject to judicial review. Therefore, the motion for judgment on the pleadings as to these causes of action is denied.

B. Motion to Compel Arbitration

Plaintiff Santa Rosa Teachers Association moves to compel mediation and arbitration on the ground that Defendant failed to comply with its contractual obligation to process certain grievances through the grievance arbitration mechanism set forth in the collective bargaining agreement (“CBA”) between the District and the Association.

On a petition to compel arbitration, the court must make the preliminary determination whether there is an enforceable arbitration agreement. Unless the agreement clearly gives the authority to the arbitrators, the court determines the arbitrability of a dispute within the terms of the arbitration agreement. As a general rule, the court should conclude that the controversy is subject to arbitration unless the agreement is not susceptible to an interpretation that the parties intended to arbitrate the dispute. Doubts as to whether an arbitration clause applies to a particular dispute are to be resolved in favor of sending the parties to arbitration. (CCP § 1281.2; Service Employees Internat. Union v. City of Los Angeles (1994) 24 Cal.App.4th 136, 143.)

Once the existence of a valid arbitration clause has been established, the burden is on the party opposing arbitration to demonstrate that an arbitration clause cannot be interpreted to require arbitration of the dispute. In other words, “an order to arbitrate a particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” (Titolo v. Cano (2007) 157 Cal.App.4th 310, 316-17.)

The CBA lays out a grievance procedure at Article 4. The grievance procedure consists of five levels. Level 4 involves mediation. Level 5 involves arbitration. However, under Article 17.1.6 of the General Provisions, only “procedural violations” are subject to the grievance process. Additionally, the CBA expressly authorizes it to skip one or more levels of progressive discipline when the nature of the offense or the possible consequences of repetition require immediate action by the District. (CBA, Article 17.1.1.)

The complaint alleges that the District issued Kelly Kiech a written reprimand and that in doing so it skipped the first two steps of the CBA’s progressive discipline procedure. (C., ¶ 12.)

Ann Hopkins also alleges that the District issued her a written reprimand without going through the proper grievance procedure. (C., ¶¶ 23-24.)

The parties disagree on whether the subject complaints may be considered procedural violations. The District maintains that the underlying grievances of Kiech and Hopkins—their opposition to the written reprimands—are not procedural violations of the CBA.

In light of the principal of favoring arbitration and liberally construing arbitration clauses, the court finds that the parties’ dispute alleges procedural violations of the CBA as they dispute whether the District’s discipline of Kiech and Hopkins is subject to the CBA’s grievance procedures or whether the District may skip some of the grievance procedures’ steps. Defendant’s arguments to the contrary fail to establish that the arbitration clause is not susceptible of an interpretation that covers the asserted disputes. Therefore, the motion is GRANTED.

Plaintiffs are to submit a written order consistent with these rulings.

8. SCV-256748; Tamblin v. Directory of Schools

Plaintiff/Cross-defendant Adrian Tamblin’s demurrer to the Cross-complaint of Eugene Schallert is sustained with leave to amend. It cannot be ascertained from the Cross-complaint whether the contract is written, is oral, or is implied by conduct. (CCP § 430.10(g).) Additionally, technically, there is no cause of action in California for unjust enrichment. (Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793.) However, there are several potential bases for a cause of action seeking restitution/unjust enrichment. (McBride v. Boughton (2004) 123 Cal.App.4th 379, 388, fn. omitted.) Cross-complainant Eugene Schallert may file an amended cross-complaint within twenty days of service of the written order on this ruling.

Plaintiff/Cross-defendant is to submit a written order consistent with this ruling.

9. SCV-256935; Vences v. Union Auto Brokers

Defendants Union Auto Brokers and Oscar Chavez move to vacate the default entered against them on May 26, 2015. The court finds that the default was entered against Defendants as a result of the court clerk’s rejection of Defendants’ answer and cross-complaint for failing to pay two filing fees. (Stein dec., ¶¶ 9-13.) As Defendants’ attorney has provided a declaration of fault, relief is mandatory. (CCP § 473(b).) Therefore, the motion is GRANTED. The default entered against Defendants is hereby set aside. Defendants’ responsive pleading shall be filed within five court days of this hearing.

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

10. SPR-86576; Matter of Juanita Louise Ponzo Trust

The motion of Petitioner Nercilla Marie Lewers to compel responses to her Special Interrogatories, Set One, and Form Interrogatories, Set One, was continued by order on ex parte application to September 23, 2015 at 3:30 p.m. in Dept. 18.

11. SPR-87643; Matter of Otto G. & Arletta M. Altes Family Trust

Continued to October 28, 2015 at 3:30 p.m. in Dept. 18. 

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