Aug 02, 2015

TENTATIVE RULINGS

LAW & MOTION CALENDAR

WEDNESDAY, JULY 29, 2015, 3:30 P.M.

Courtroom 6 – Hon. Lawrence E. Ornell for the Hon. Nancy Case Shaffer

Hall of Justice, Second Floor, 600 Administration Drive, 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) 521-6730 and all other opposing parties of your intent to appear by 4:00 p.m. today, Tuesday, July 28, 2015.  Parties in small claims cases and motions for claims of exemption are exempt from this requirement.

 

 

 

1.  MCV-232326, Collectronics, Inc. v. Hong

Appearances required.

 

 

2.  MCV-232542, Collectronics, Inc. v. Arafaine

Plaintiff's Motion to Appoint Receiver to sell the Defendant’s liquor license is GRANTED.

 

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

 

 

3.  MCV-234028, Collectronics, Inc. v. Barajas

Plaintiff's Motion to Appoint Receiver to sell the Defendant’s liquor license is GRANTED. 

 

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

 

 

4.  SCV-245829, King v. Cruz

Motion to Quash

Defendant’s motion to quash the subpoena served on Patricia Cisco is GRANTED. Communications between Ms. Cisco and her client, Susan Blumenfeld, are privileged.

 

(Although requested, no accounting for attorney’s fees was provided.)   

 

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

 

Motion to Consolidate

Defendant’s motion to consolidate this action with SCV-256133, King v. Blumenfeld, is GRANTED. The lead case will be SCV-245829.

 

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

 

Motion to Set

The parties are ordered to appear in order to determine an appropriate trial date.

 

 

5.  SCV-252844, Mhajan v. Power

This motion is continued to Friday, July 31, 2015, at 8:30 a.m. in Courtroom 18 for hearing.

 

 

6.  SCV-254959, Reynolds v. Ford Motor Company

Appearances required.  Status of Petition for Coordination filed in Orange County Superior Court. 

 

 

7.  SCV-256506, Howard v. City of Petaluma

Motion for Preference

Plaintiff’s motion for preference pursuant to CCP § 36(a) is DENIED. Plaintiff has not provided a prognosis from a doctor – via hearsay in Mr. Montgomery’s declaration or otherwise – establishing that her medical condition is such that to deny her preference would prejudice her interest in the litigation.

 

Motion for Leave to File a Cross-Complaint

Defendant City of Petaluma’s motion for an order granting it leave to file a cross-complaint against the Sonoma County Water Agency is GRANTED. The interests of justice weigh in favor of resolving all claims based upon Plaintiff’s trip-and-fall injury in a single lawsuit.

 

Motion to Continue Trial

The trial date of September 25, 2015, is hereby VACATED and reset for March 25, 2016. 

 

Defendant is to submit written orders consistent with the above rulings.

 

 

8.  SCV-256892, Sweeney v. Plagge

Demurrer

Defendants David Plagge and Millie Plagge demur to Plaintiff’s second cause of action for Negligent Infliction of Emotional Distress and third cause of action for Intentional Infliction of Emotional Distress on the grounds that each fails to state facts sufficient to constitute a cause of action and each is uncertain.

 

The instant case is an action for property damage to the Plaintiff’s home from a fire. Plaintiff alleges severe emotional distress due to: (1) the property loss; (2) the loss of family heirlooms and personal items; (3) the loss of use of and enjoyment of her home; and (4) the continuing failure and refusal of Defendants and their agents to compensate Plaintiff for the fair market value of her home and contents.

 

The complaint alleges that the Plagges had a non-delegable duty to exercise due care in the selection and supervision of an unlicensed itinerant non-contractor from Craigslist as a result of the Plagges’ knowledge of the potential damages of using incendiary devices in close proximity to Plaintiff’s home.

 

Recovery is not allowed for emotional distress arising solely out of property damage, absent a threshold showing of some preexisting relationship, an intentional tort, or the assumption of a duty by the defendants. (Cooper v. Superior Court (1984) 153 Cal.App.3d 1008, 1012; McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1510-1515; Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984.) The complaint does not allege Plaintiff suffered a personal injury. Nor does it allege facts sufficient to establish a pre-existing or assumed duty on the part of Defendants to the Plaintiff that would give rise to liability for emotional distress damages.

 

Additionally, with regard to Plaintiff’s third cause of action for Intentional Infliction of Emotional Distress, “it is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.” (McMahon, supra, citing Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.) The complaint does not allege intentional conduct directed at the Plaintiff.

 

Emotional distress damages are also available for conduct constituting an ultrahazardous activity. (Goodwin v. Reilley (1985) 176 Cal.App.3d 86, 90.) Here, the allegations are insufficient to establish that the contractor, Kris Keefer, was engaged in an ultrahazardous activity.

 

Cases cited by the Plaintiff are inapposite as those cases allege causes of action for either trespass or conversion. In Armitage, the court determined that once a cause of action for trespass has been established, the landowner may also recover damages for annoyance and discomfort proximately caused thereby. (Armitage v. Decker (1990) 218 Cal.App.3d 887, 905.) Here, Plaintiff has not alleged a cause of action for trespass. Nor has Plaintiff alleged a cause of action for conversion. (See Gonzales v. Personal Storage, Inc. (1997) 56 Cal.App.4th 464; Schroeder v. Auto Driveaway Co. (1974) 11 Cal.3d 908, 918.)

 

For the reasons stated above, Defendants’ Demurrer is SUSTAINED WITH LEAVE TO AMEND.

 

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

 

Motion to Strike

The parties have stipulated to the resolution of this motion. Plaintiff has agreed that its prayer for attorney fees may be stricken. Therefore, the motion is GRANTED.

 

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

 

 

9.  SCV-257149, Evapco, Inc. v. Peterson

Motion to Compel

The parties have stipulated to a continuance. The Motion to Compel shall be continued and heard on Wednesday, September 9, 2015, at 3:30 p.m. in Courtroom 18.

 

Pro Hac Vice

The motion of Petitioners Evapco Inc., Evaptech Inc., and Tower Components, Inc., for an order permitting Joshua A. Glikin to appear as counsel pro hac vice is GRANTED. The application meets the requirements of California Rules of Court, Rule 9.40.

 

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

 

 

10.  SPR-87055, Matter of June M. Graham Living Trust

Brian D. Rondon’s Demurrer is SUSTAINED WITH LEAVE TO AMEND.  The First Amended Petition fails to state facts sufficient to constitute a cause of action and is uncertain.  This is solely because the petition fails to allege any actual conduct of the demurring party, substituted in as Doe 1, since there are no allegations involving Doe 1.  The cause of action for elder abuse also appears improperly to set forth a claim on behalf of the Contestants themselves, rather than as representatives of the decedent’s estate.  The court rejects the demurring party’s other arguments.

 

Although Contestants have filed a Second Amended Petition, this violates CCP § 472 because they have already amended the petition “once of course.” 

 

Contestants have leave to amend within 20 days of the service of the notice of entry of this order.  The demurring party is to serve the notice of entry of this order within 5 days of this order.

 

 

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