Feb 26, 2017

TENTATIVE RULINGS                                                                      
FRIDAY, FEBRUARY 24, 2017, 3:00 p.m.
Courtroom 18 –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) 521-6547, and all other opposing parties of your intent to appear by 4:00 p.m. today, THURSDAY, FEBRUARY 23, 2017. Parties in small claims cases and motions for claims of exemption are exempt from this requirement.





1. SCV-258184; Hardister v. Bayview Loan

Defendant Bank of America, N.A.’s (“BANA”) motion for judgment on the pleadings pursuant to CCP §438(c)(1)(B)(ii) is granted with leave to amend. 


BANA filed this motion before it filed its answer.  Whether this is considered a motion for judgment on the pleadings or a demurrer, the court applies the same standard. (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321.)


BANA contends plaintiff has failed to state a cause of action for fraud because plaintiff has failed to allege fraud with the required particularity and the action is time-barred.


BANA’s request for judicial notice of the recorded deed of trust is granted.


In the second amended complaint (“SAC”), plaintiff alleges he was current on loan payments but inquired in 2010 about a loan modification because his property was worth less than the amount owed on the loan.  BANA representatives told him they could not discuss loan modifications with him unless he was at least 90 days behind on his loan payments.  (SAC, ¶11.)  As alleged, this was not a promise of any kind; it was simply a statement of BANA’s policy.


Plaintiff further alleges once he went forward and submitted a loan modification application, three BANA employees successively told him they were “authorized” to “complete” or “accomplish” the process, and plaintiff had to restart the process with each different employee contact.  (SAC, ¶¶13-15.)  He alleges the loan was transferred to defendant Bayview at “some point in late 2012 (early 2013)” without BANA ever completing the loan modification process.  (SAC, ¶17.)  The balance of plaintiff’s factual allegations is based on defendant Bayview’s actions in relation to plaintiff’s subsequent loan modification attempts.


Plaintiff’s fraud claim against BANA alleges that certain named BANA representatives promised, but failed to negotiate a loan modification with him in “good faith” and “secretly concealed the fact that they had no intention of performing on the promises made as identified above.”  (SAC, ¶32.) 


“Civil Code section 1710 defines one species of deceit as ‘[a] promise, made without any intention of performing it.’  A cause of action for promissory fraud requires the plaintiff to allege that the promissor did not intend to perform at the time the promise was made, that the promise was intended to deceive and induce reliance, that it did induce reliance, and that this reliance resulted in damages.”  (Fleet v. Bank of America N.A. (2014) 229 Cal.App.4th 1403, 1411, citations omitted.)


Per Witkin: “(1) General pleading of the legal conclusion of ‘fraud’ is insufficient; the facts constituting the fraud must be alleged; and (2) every element of the cause of action for fraud must be alleged in the proper manner (i.e., factually and specifically), and the policy of liberal construction of the pleadings [citation] will not ordinarily be invoked to sustain a pleading defective in any material respect.  [Citation.]”  (5 Witkin, Cal. Proc. 5th Plead § 711 (2008), citations omitted.)


Here, plaintiff fails to allege facts supporting every element of his fraud claim.  There are no facts showing BANA did not intend to negotiate in good faith at the time the representatives told plaintiff they were “authorized” to “complete” or “accomplish” the loan modification process.  Nor are there facts showing that any such promises were intended to deceive and induce reliance, that they did induce reliance, and that this reliance resulted in damages for plaintiff.  Accordingly, plaintiff has failed to allege a cause of action for fraud with the required particularity.


As to the three-year statute of limitations barring this action, the allegations are vague as to timing.  The last alleged contact plaintiff had with a BANA representative was in January 2012, but plaintiff was arguably unaware BANA was no longer processing his loan modification application until the loan was transferred to Bayview in late 2012 or early 2013.  This action was filed within three years of that time period.  “A general demurrer based on the statute of limitations is only permissible where the dates alleged in the complaint show that the action is barred by the statute of limitations.  [Citation.] The running of the statute must appear ‘clearly and affirmatively’ from the dates alleged.  It is not sufficient that the complaint might be barred.  [Citation.]  If the dates establishing the running of the statute of limitations do not clearly appear in the complaint, there is no ground for general demurrer.  The proper remedy ‘is to ascertain the factual basis of the contention through discovery and, if necessary, file a motion for summary judgment ....’ [Citation.]” (Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 324–25, citations omitted.)

Consequently, the court cannot find the SAC is time-barred on its face as to BANA, but it finds plaintiff has still failed to state a cause of action for fraud against BANA.  Plaintiff shall have 30 days leave to amend to allege his fraud claim with the required particularity, if he can.

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



2. SCV-258419; Schlactus v. Bottorff
Defendant Thomas Bottorff moves to compel further responses from plaintiff to special interrogatories, numbers 7-12.


The exhibits referenced in defendant Thomas Bottorff’s counsel’s declaration were not attached to the declaration.  Defendant shall file an amended declaration with the exhibits attached at or before the hearing.


Assuming defendant files an adequate supplemental declaration, the court grants the motion as to special interrogatories 9-12.  Plaintiff claims residual complaints for physical conditions related to the injuries she suffered in this incident.  The identity of the health care professionals who treated those conditions is therefore relevant and discoverable.


The motion is denied as to special interrogatories 7 & 8.  These interrogatories are overbroad and are not narrowly tailored to protect plaintiff’s right to privacy.  They seek the identity of all health care providers, including therapists, who have treated plaintiff within the past 10 years.  Limiting this to 10 years does not remedy the overbreadth of the request.  The request would necessarily still include the identity of individuals who provided medical care for conditions that are wholly unrelated to the claim or injury sued upon.


Defendant shall submit an order consistent with this ruling.



3. SCV-258732; Reynoso v. Real Estate EBroker

Defendant Coldwell Banker Giovannoni & Cooper Realty moves to compel discovery responses from plaintiff and to deem matters admitted.


According to plaintiff’s oppositions filed on February 22, 2017, she has now provided responses to the discovery at issue in these motions.  Accordingly, the motions are moot except as to monetary sanctions.


Despite numerous extensions of time to respond to defendant’s discovery requests, plaintiff did not serve discovery responses until after these motions were filed and then only days before the hearing.  Consequently, the court awards $1,500 in sanctions, to be paid by plaintiff and/or her counsel to defendant within 30 days of notice of entry of this order. 


Defendant shall submit an order consistent with this ruling.



4. SCV-258814; Freeman v. Wells Fargo

CONTINUED to 3/15/17 at 3:00 p.m. in Department #18 per stipulation of the parties.



5. SPR-089562; Est. of Crinella

Petitioner’s motion for an order consolidating SPR-89562 with SCV-258944 for all purposes is granted.


The court finds the actions contain common questions of law and fact pending before the court and consolidation will tend to avoid unnecessary cost or delay.  (CCP §1048.) As argued by petitioner, both actions revolve around Francis Crinella’s alleged self-dealing and mismanagement of assets belonging to Crinella Properties General Partnership, and other entities, the alleged misrepresentations and cover-up in the bookkeeping by Francis and his daughter, Ramona Nizibian, and the alleged negligent accounting and representations by Burr Pilger Mayer.  It follows that the discovery is largely duplicative.


Respondents’ assertions of prejudice from consolidation appear unfounded.  Petitioner filed a cross-complaint in the civil case which already broadened the action beyond Francis’s lawsuit for injunctive relief.  Consolidating the probate action with the civil action will not increase this purported prejudice.  Additionally, in the civil action, the parties have already agreed to a court trial, so there can be no prejudice from jury confusion.  Finally, the need for additional days of deposition can be addressed via a motion for a protective order, if necessary.


Accordingly, the motion is granted and SCV-258944 shall be the lead case.


Petitioner shall submit an order consistent with this ruling.



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