Jun 26, 2016

Wednesday, JUNE 22, 2016, 3:00 p.m.
Courtroom 18 – by Hon. Julie Conger for Hon. 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, Tuesday, June 21, 2016.  Parties in small claims cases and motions for claims of exemption are exempt from this requirement.


1. MCV-144848; Miller v. Viratos

In this debt collection action, Plaintiff Alliance Credit – Bank One moves to vacate and set aside entry of judgment based on mistake.  This motion is unopposed.


According to Plaintiff’s counsel’s declaration, judgment was entered in this case against Defendant David G. Viratos by mistake in violation of an automatic bankruptcy stay pursuant to 11 U.S.C. §362.  Per Plaintiff, it was unaware Viratos had filed for bankruptcy and that a stay was in place.  Plaintiff intends to dismiss this action once the void judgment is vacated.


Good cause shown, Plaintiff’s motion is granted.


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



2. MCV-236092; Capital One v. Castillo

Appearance required.



3. MCV-236945; 21ST Century Insurance v. Valdivia

Plaintiff 21st Century Insurance Company’s unopposed motion for leave to file a first amended complaint pursuant to CCP §473 is granted.


If Plaintiff has not already done so, it must submit a separate proposed first amended complaint for filing by the court clerk.  The court cannot file the proposed first amended complaint which is attached to Plaintiff’s counsel’s declaration.


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



4. MCV-237596; Midland v. Stanford

Plaintiff Midland Funding LLC moves for judgment on the pleadings.  This motion is unopposed.


In this debt collection action, Plaintiff alleges the following causes of action: (1) account stated; and (2) open book account.  These claims are based on a credit card balance totaling $4656.19.  No post-charge-off fees or interest are sought by Plaintiff.  In her answer, Defendant Jessica Stanford admitted the allegations were true but indicated she was suffering from financial hardship.


“Like the demurrer, the motion for judgment on the pleadings is confined to the face of the pleading under attack, and the properly pleaded operative facts must be accepted as true.”  (Lehto v. City of Oxnard (1985) 171 Cal.App.3d 285, 287.)  “Total failure to deny a material allegation necessarily results in an admission.”  (5 Witkin, Cal. Proc. 5th Plead § 1053 (2008).)


Here, the complaint alleges an open book account and account stated in writing between Ms. Stanford and Citibank, N.A. (original holder of the credit account) with an account balance of $4656.19 due and unpaid.

Ms. Stanford admits the material allegations and has not identified any valid affirmative defenses.  Therefore, Plaintiff’s motion is granted without leave to amend.

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



5. SCV-254820; Hogan v. Cenlar FSB

After oral argument at the June 8, 2016 hearing, Defendant First Tech Federal Credit Union’s (“First Tech”) motion for attorneys’ fees was continued in order for the parties to submit supplemental briefing as to whether Defendant’s motion was premature.

The court has read and considered the supplemental briefs and adopts its original tentative ruling as posted on June 7, 2016.

In their supplemental brief, Plaintiffs' request the court set a hearing for sanctions against Defendant pursuant to CCP §128.5. Plaintiffs are to file a noticed motion if they wish to pursue a sanctions award.

Plaintiffs shall prepare a written order consistent with the court’s rulings.


6. SCV-257264; Meyers v. Drain

Respondent Laurie Meyers, as Trustee of the Meyers Family Living Trust, moves for judgment on the pleadings with respect to the first, second and third causes of action of the trust petition and to the entire first amended complaint to quiet title.  Defendants Drain and Loessin join in Laurie’s motion as to the quiet title action. 


The Meyers Family Trust (“Trust”) was established by George Meyers and his wife Patricia in 1991.  George and Patricia are survived by their two daughters, respondent Laurie Meyers (“Laurie”) and Petitioner Susan Meyers (“Susan”).  The Trust is divided into Trust “A” and Trust “B.”  Trust “B” included a parcel of real property sold by Laurie (purportedly in her capacity as trustee) in 2010.  Defendants Drain and Loessins are the current owners of the real property.


In 2015, Susan filed: (1) the trust action in her individual capacity as beneficiary of Trust “B” against Laurie as trustee; and (2) the quiet title action in the alleged capacity of trustee of the Trust “B.”  These two cases were subsequently consolidated. 


The first cause of action of the trust petition seeks to determine “the validity of a trust provision.”  The second cause of action seeks to determine “the nonexistence of a co-trustee’s power to act unilaterally.”  And, the third cause of action seeks to determine “the construction of a trust instrument.”  The related quiet title claim alleges that Susan and Laurie were co-trustees of the Trust “B,” therefore Laurie lacked the authority to unilaterally sell the real property in 2010.


Laurie’s request for judicial notice is granted.  Susan’s request for judicial notice is granted as request number one (dictionary definitions of “successor” and “substitute”) but denied as to requests numbers two and three.


“The standard for granting a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law.  [Citations.]”  (Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216, citations and footnote omitted.)  “[J]udgment on the pleadings must be denied where there are material factual issues that require evidentiary resolution.” (Ibid.) 

 “[A]n ambiguity is said to exist when, in the light of the circumstances surrounding the execution of an instrument, ‘the written language is fairly susceptible of two or more constructions.’” (In re Estate of Russell (1968) 69 Cal.2d 200, 211.)  “[E]xtrinsic evidence as to the circumstances under which a written instrument was made is admissible to interpret the instrument, although not to give it a meaning to which it is not reasonably susceptible.”  (Wells Fargo Bank v. Marshall (1993) 20 Cal.App.4th 447, 453.)

Laurie argues the provisions of the trust instruments are unambiguous and render Susan’s claims meritless as a matter of law.  In contrast, Susan contends the trust instruments are ambiguous and that extrinsic evidence will be required to interpret them.


The court finds the Trust is ambiguous as it is reasonably susceptible to the interpretation advanced by Susan.  Extrinsic evidence of the testators’ intent may or may not ultimately support her interpretation, but that is not yet before the court.  In the context of this motion for judgment on the pleadings, Susan’s petition and her quiet title claim are legally sufficient to state causes of action. 


Accordingly, the motion for judgment on the pleadings is denied.  The motion is also denied as to Defendants Drain and Loessin whose demurrer to Susan’s quiet title action was previously overruled.  (See Order After Hearing, Demurrer to FAC, entered on December 3, 2015; CCP §438(g)(1).)


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



© 2016 Superior Court of Sonoma County