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LAW & MOTION CALENDAR
Wednesday, May 20, 2015 at 3:30 p.m.
Courtroom 18 –Judge Nancy Shaffer
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) 521-6729 by 4:00 p.m. today, Tuesday, May 19, 2015. 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. SCV-253519; Abuhalawa v. Countrywide
The demurrer brought by U.S. Bank’s is overruled as to the fifth and sixth causes of action. U.S. Bank’s request for judicial notice is granted. With respect to the Fifth Cause of Action, plaintiff sufficiently pleads that he has been damaged by the wrongful initiation of foreclosure proceedings and that Bank of America was aware the amount stated in the foreclosure notice was not correct and proceeded with the foreclosure anyway. Thus, U.S. Bank is alleged to have engaged in direct misconduct with respect to the foreclosure. Plaintiff has pled allegations which, if proven, would relieve him from the obligation to tender. The complaint alleges that Defendant Countrywide made misrepresentations and false promises to Plaintiff, including telling Plaintiff that in order to obtain a loan modification he needed to go into default, when he was not in default, and, when Plaintiff later offered payment, telling Plaintiff that there would be no foreclosure so that he did not need to make his payments. Plaintiff alleges detrimental reliance on these representations, pursuant to which Plaintiff allowed the loan to go into default and later to refrain from bringing the account current when he had the will and ability to make the account current. Further, Plaintiff expressly alleges that he had the ability to make the payments and in fact tendered payment only to have Countrywide tell him he did not need to. With respect to the Sixth Cause of Action as presently pled, the allegations of the fifth cause of action are incorporated into the sixth cause of action. The allegations of direct misconduct by U.S. Bank are sufficient to withstand the demurrer on the grounds that a claim against U.S. Bank under section 17200 cannot be predicated on vicarious liability. Direct liability has been alleged.
The demurrer brought by Defendant Bank of America/Countrywide is overruled; their request for judicial notice is granted.
As noted above, the complaint alleges that Defendant Countrywide made misrepresentations and false promises to Plaintiff, including telling Plaintiff that in order to obtain a loan modification he needed to go into default, when he was not in default, and, when Plaintiff later offered payment, telling Plaintiff that there would be no foreclosure so that he did not need to make his payments. Plaintiff alleges detrimental reliance on these representations, pursuant to which Plaintiff allowed the loan to go into default and later to refrain from bringing the account current when he had the will and ability to make the account current. This conduct and reliance allegedly caused detriment to Plaintiff because he has been threatened with losing his property through foreclosure and has incurred monetary losses to prevent the foreclosure. As also noted above, Plaintiff has pled allegations which, if proven, would relieve him from the obligation to tender. The foreclosure is allegedly wrongful due to Defendants’ misconduct. Further, Plaintiff expressly alleges that he had the ability to make the payments and in fact tendered payment only to have Countrywide tell him he did not need to.
Defendant is ordered to submit a written order consistent with this ruling.
The court thanks the demurrer facilitator, Douglas Shureen, for his service in this matter.
2. SCV-254157; Luther Burbank Savings v. Chevron
Continued from 5/12. Tentative Ruling will be posted late.
3. SCV-255399; Sargent v. Board of Trustees
1. Motion for Leave to Amend:
Defendant’s Request that the court take judicial notice of the First Amended Complaint is granted.
Plaintiff’s motion for leave to file a seconded amended complaint is granted. Plaintiff is ordered to serve and file the Second Amended Complaint not later than Tuesday, May 27, 2015. The court finds that the amendment will require a continuance of the trial. (CCP §§ 473(a)(1).) Defendants have articulated a number of challenges to the proposed amended pleading, which may be asserted by appropriate motions after the amended Second Amended Complaint has been filed. Further, additional discovery may be required to clarify plaintiff’s specific claims under the various statutes alleged to have been violated and which, if any, of these violations are alleged to have affected other employees, and other new factual allegations asserted in the Second Amended Complaint. Accordingly, the court orders that discovery cutoffs in this case will be computed from the new trial date. The trial date of July 17, 2015 is hereby vacated. A Case Management Conference is set for July 2, 2015 at 9:00 a.m. in Department 18 to set a new trial date.
The three motions to compel discovery on calendar in this matter today were referred to attorney Barry Meyer, as a Discovery Facilitator. The court thanks Mr. Meyer for his service in this matter. The following rulings address the issues raised by the First Amended Complaint, which was the operative pleading when the requests were made. Discovery relating to new claims and allegations made in the Second Amended Complaint will need to be propounded after that pleading has been filed.
2. Motion to Compel Further Responses - Plaintiff’s Request for Production of Documents, Set Two (filed April 6, 2015)
Plaintiff’s motion to compel further responses to Plaintiff’s Request for Production of Documents, Set Two, is granted as to Requests numbers 22, 23, 23, 25, 26, and 27. Request Number 26 is hereby limited to documents originated in 2012 or later. Defendants are ordered to provide further responses within 30 days of the date of service of this order. The court will continue the hearing with respect to Requests number 10 through 21 to June 24, 2015 at 3:30 p.m. to be heard with Defendant’s motion for protective orders re: scope of discovery.
3. Motion to Compel Inspections – Plaintiff’s Request for Inspections (filed April 3, 2015)
This motion is continued to June 24, 2015 at 3:30 p.m. in Department 18, June 24, 2015 at 3:30 p.m. to be heard with Defendant’s motion for protective orders re: scope of discovery, with the following exception: Defendants are ordered to allow inspection of Stevenson Hall, Room 1041 within 30 days of service of this order at a date and time mutually agreeable to counsel. The taking of samples shall be restricted to the procedures set forth in paragraph 16 a-j of Plaintiff’s declaration in support of the motion to compel further inspections, filed April 13, 2015.
4./5. Plaintiff’s Motion to Compel Depositions / Defendant’s Motion for Protective Order re: Depositions (filed April 3, 2015)
Defendants’ motion for a protective order is denied and Plaintiff’s motion to compel the depositions of Dr. Armiñana and Mr. Rogerson is granted with respect to all issues raised in the first amended complaint.
Plaintiff’s objections are overruled except number 18, which is sustained: Declaration of Thomas Sargent, paragraph 12: “CPM Environmental advised me that Dr. Armiñana had specifically instructed them not to clean the carpet in his office.”
The “relevance to the subject matter” and “reasonably calculated to lead to discovery of admissible evidence” standards are applied liberally. The taking of a deposition of a person with personal knowledge about the subject matter of the lawsuit is within the scope of permissible discovery. The burden, expense or intrusiveness does not outweigh the likelihood that the information sought will lead to discovery of admissible evidence. Moreover, the burden is on Defendants to prove that the proposed deponents have nothing to contribute. (Speadmark v. Federated Department Stores, Inc. (S.D.N.Y. 1997) 176 F.R.D. 116, 118.) Defendants have not shown “good cause” exists to issue the protective order. The witnesses sought to be deposed may have unique personal knowledge of some of the events pertaining to this action. This is not a case like Liberty Mutual in which various officers and employees have fungible information related to company products or services. (See Liberty Mut. Ins. Co. v. Sup.Ct. (Frysinger) (1992) 10 Cal. App. 4th 1282, 1287, 1289.) Plaintiff has a right to test Dr. Armiñana and Mr. Rogerson’s alleged lack of knowledge. (Travelers Rental v. Ford Motor Co. (D.Mass 1987) 116 F.R.D. 140, 143-144.)
In order to avoid repeated depositions of these witnesses, the depositions may not be scheduled until after the Second Amended Complaint has been filed, at which time Plaintiff may depose these witnesses as to any non-privileged matter relevant to the allegations in the Second Amended Complaint.
Plaintiff is to submit a written order consistent with this ruling.
4. SCV-255780; Wade v. Huerls
Defendants’ motion to dismiss this action for lack of jurisdiction is denied. The gravamen of the action is for damages; any money judgment entered in this action would not affect the Texas property. (See Ophir Silver Min. Co. v. Superior Court of City and County of San Francisco (1905) 147 Cal. 467, 473-74; Eldee-K Rental Properties, LLC v. DIRECTV, Inc. (9th Cir. 2014) 748 F.3d 943, 947; see also Fall v. Eastin (1909) 215 U.S. 1, 8.)
Plaintiff is to submit a written order consistent with this ruling.
5. SCV-256777; Income Security v. Brookwood
The court will deny, without prejudice, Petitioner Income Security Investments, L.P.’s petition requesting this court to order the Secretary of State to file Petitioner’s Amendment to Certificate of Limited Partnership, form LP-2, without the signature of its dissociated general partner, Brookwood Mortgage and Investment, L.P. (“Brookwood”); to confirm InnerMountain Realty, LLC, as Petitioner’s general partner; and to confirm that Brookwood is Petitioner’s dissociated partner.
The exhibits to the unverified Petition are not properly before the court as evidence. The basis for the Petition is that Brookwood Mortgage was disassociated as a general partner as matter of law. Provided that competent evidence is submitted, and proper notice is given, it appears that the court would be in a position to make an order directing the Secretary of State to file the 03 Amended Statement of Limited Partnership without Mr. Gest’s signature, pursuant to Corporations Code § 15906. No authority has been provided that a court order is required or appropriate to confirm that InnerMountain Realty, LLC, was duly elected as the new general partner.
Petitioner is ordered to submit a written order consistent with this ruling.