Sep 16, 2014

TENTATIVE RULINGS

LAW & MOTION CALENDAR

WEDNESDAY, September 17, 2014, 3:30 P.M.

Courtroom 18 – Honorable Nancy Case Shaffer

3055 Cleveland Avenue, Santa Rosa

 

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 will need to contact the Judicial Assistant by telephone at (707) 521-6730 by 4:00 p.m. today, Tuesday, September 16, 2014.  Any party requesting an appearance must notify all other opposing parties of their intent to appear.  Parties in small claims cases and motions for claims of exemption are exempt from this requirement.

 

CourtCall is available for all Law and Motion appearances, EXCEPT parties in small claims cases and motions for claims of exemption which are mandatory appearances.  CourtCall can be reached directly at (888) 882-6878.

 

1. MCV-223505; Main Street Acquisition v. Gingerich
Appearances Required.

2. MCV-226980; Hammons v. BE Bronze LLC, et al.
Plaintiff moves to amend the default judgment entered on May 8, 2013, to add Sonoma Tanning LLC and Kelly Richardson as alter ego judgment debtors. Because of due process concerns, judgments resulting from defaults or uncontested actions are not subject to such an amendment.  (See Motores de Mexicali, S.A. v. Super.Ct. (1958) 51 Cal. 2d 172, 175–176; NEC Electronics, Inc. v. Hurt (1989) 208 Cal. App. 3d 772, 779.) Accordingly, the motion is denied.

3. MCV-230780; ParkMerced Investors Properties, LLC v. Juarez
Plaintiff ParkMerced Investors Properties’ motion for an order deeming admitted its Request for Admissions is granted. Plaintiff’s Requests for Admissions served on defendant by mail on April 18, 2014, shall be deemed admitted unless defendant Leslye Juarez serves plaintiff with verified responses prior to the hearing on this motion. Sanctions are granted in plaintiff’s favor against defendant in the amount of $565, which shall be paid to Plaintiff within thirty days of service of the written order on this motion.

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

4. SCV-246717; Besir v. Swedan
Appearances required.

5. SCV-252577; Butcher v. Stubblefield, et al.
Cross-defendant PG&E’s motion for the determination that it settlement with plaintiff Dean Butcher was made in good faith in accordance with the provisions of CCP section 877.6 is granted.  The court finds that PG&E has made a sufficient showing that the settlement is in good faith, based on the payment made and the evidence that PG&E has no apparent liability in this case.  Further, Cross-defendant California Department of Transportation and defendant Kristine Stubblefield stipulated that the settlement is in good faith.  Since the motion is uncontested, the court is not required to conduct the analysis required by Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488.  (See City of Grand Terrace v. Superior Court (1987) 192 Cal.app.3d 1251, 1261.) The City of Santa Rosa’s cross-complaint against PG&E for comparative indemnity is hereby dismissed.

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

6. SCV-252694; McGillicuddy v. State of California, et al.
Cross-defendant Anne Foster moves for determination that her settlement with plaintiff Daniel McGillicuddy was in good faith pursuant to CCP § 877.6.

While the court must consider a range of factors when making the determination to grant this motion (Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488), the ultimate determinant of good faith is whether the settlement is grossly disproportionate to what a reasonable person would estimate the settlor's liability to be at the time of settlement. (City of Grand Terrace v. Boyter (1987) 192 Cal. App. 3d 1251, 1262.)

The evidence presented suggests that at the time of settlement reasonable persons would conclude that cross-defendant Foster’s proportionate share of liability was minimal and mainly due to speeding, as opposed to the liability for the allegedly dangerous condition of public property which plaintiff contends was the primary cause of the accident. Therefore, the $100,000.00 settlement is within the ballpark of her proportionate share of liability.  Accordingly, the motion is granted.

The cross-complaints for indemnity filed by cross-complainants Redwood Oil Company, Inc., dba Aztec Grill and Redwood Market; Pacific Gas and Electric Company; the City of Santa Rosa; and the State of California, by and through the Department of Transportation, against cross-defendant Anne Foster are hereby dismissed.

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

7. SCV-253132; Collins v. Lane
Defendant Betty Lane moves for summary adjudication in her favor against Plaintiff Carol Collins on the grounds that the second, third, and fourth causes of action have no merit; there is no triable issue as to any material fact; and defendant is entitled to judgment as a matter of law.

Plaintiff opposes the motion and objects to defendant’s evidence. The objections to defendant’s material facts, on the ground that the fact is irrelevant, are sustained as to numbers 1-4, 35-38, 53-56, 65, 69, 72, 89-92, and 108-111.

The objections to defendant’s material facts, on the ground that the fact is based, in whole or part, upon the 1999 Agreement or upon documents attached as Exhibits E or H to defendant’s counsel’s declaration, all of which have not been authenticated, are sustained as to numbers 7, 12, 15-16, 19-20, 25, 28, 29, 31, 40, 45, 49-50, 58, 61, 67, 73, 75-76, 80, 88, 94, 96, 101-102, 106, and 113.

Plaintiff’s objections, numbers 25 and 26, are sustained with regard to material fact numbers 12, 24, 45, 67, and 106.

Plaintiff’s objection number 22 is sustained with regard to material fact numbers 15-16, 17-20, 28-30, 35, 49-51, 63, 75-77, 80, 88, and 116.

Plaintiff’s objection number 28 is sustained with regard to material fact numbers 22, 33, and 84.

Plaintiff’s objections that defendant’s material fact is, or is based upon, a legal conclusion are sustained as to numbers 24, 27, 31, 103, and 105.

The evidence provided does not establish defendant’s fact numbers 7, 21, 22, 33, 40, 47, 52, 58, 61, 74, 81, 84, 87, 94, 96, 104, 113 and 117.

Plaintiff’s objection that Defendant’s fact number 78 misstates testimony is sustained.

A triable issue of material fact exists with respect to the Defendant’s material fact numbers 12, 13, 17, 30, 45, 46, 51, 67, 68, 73, 77, 85, 97, 101, 102, and 116. 

Defendant has established the following material facts by competent evidence: 6, 8-11, 14, 16, 18, 23, 26, 32, 34, 39, 41-44, 48, 50, 57, 59, 60, 62-64, 66, 70, 71, 76, 79, 82, 83, 86, 93, 95, 98-100, 107, 112, 114 and 115. These facts do not establish that second, third, and fourth causes of action have no merit; and they do not negate the triable issues of material fact as to defendant’s material fact numbers 12, 13, 17, 30, 45, 46, 51, 67, 68, 73, 77, 85, 97, 101, 102, and 116, and thus, do not establish that defendant is entitled to judgment as a matter of law.  The motion is denied.

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

8. SCV-255392; Burke v. Kelly
Defendants’ demurrer to the complaint for malicious prosecution is sustained with leave to amend.  The complaint fails to allege facts showing that the prior civil proceeding against the plaintiff terminated in plaintiff's favor.

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

9. SCV-255398; Bolt v. Shantz
Appearances required.

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