Apr 23, 2014

Tentative Rulings
Law and Motion Calendar
Wednesday,  April 23, 2014, at 3:30 p.m.
Courtroom 18 -- Hon. Nancy Case Shaffer
3055 Cleveland Avenue, Santa Rosa, CA

 
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 Judge Shaffer's Judicial Assistant by telephone at (707) 521-6729, and all other opposing parties of your intent to appear by 4:00 p.m. today, Tuesday, April 22, 2014.  Parties in small claims cases and motions for claims of exemption are exempt from this requirement.

 
1. MCV-186857, Fireside Bank v. McCain
 
Appearances are required on the Claim of Exemption,
 
2.  MCV-223431, Creditors Trade Association, Inc. v. The North Market, Inc., et al. 
 
Appearances are required.  Plaintiff's Motion to Appoint Receiver to sell the defendant’s liquor license is granted.  The court will hear argument regarding the amount of the undertaking to be required.  (C.C.P. § 567(b); CRC, Rule 3.1178.) 
 
Plaintiff is ordered to submit a written order after hearing consistent with this ruling and incorporating the court’s orders at the hearing regarding the amount of the bond.
 
3.  SCV-253455, Severson v. Sonoma Valley Hospital
 
Defendant Sonoma Valley Hospital’s motion for an order deeming admitted its First Set of Request for Admissions is granted.  Defendant’s Requests for Admissions served on plaintiff by mail on January 10, 2014, shall be deemed admitted unless plaintiff Joni Severson serves defendant with verified responses prior to the hearing on this motion. Sanctions are denied.
 
Defendant is ordered to submit an order consistent with this ruling.
 
4.  SCV-253638, Ulloa, et al. v. Bank of America, et al.
 
The motion to be relieved as counsel brought by plaintiffs’ counsel, Nick Pacheco, is granted.  The court will sign the order submitted with the motion.
 
5.  SCV-254094, Skaff v. Rio Nido Roadhouse dba Lowbrau, LLC
 
The issue raised by Defendant’s Motion to Quash Service of the Complaint is whether defendant Rio Nido Roadhouse dba Lowbrau, LLC (“Rio Nido Roadhouse”) could be served by substitute service at its place of business.  The address for service of process for Rio Nido Roadhouse listed on the Secretary of State’s website was 2929 Riebli Road, Santa Rosa.
 
Plaintiff attempted unsuccessfully to serve defendant at that address. (Pezeshkpour Dec., ¶¶ 5, 6, Ex. A.)  Mr. Metzger had moved about six months earlier but eventually received a letter from plaintiff via mail forwarding.  Mr. Metzger informed plaintiff’s counsel that his new mailing address was a Post Office Box.  (Metzger Dec., ¶ 4, 12, 19.)  The letter sent by Mr. Metzger does not 1) indicate that this post office box is the new mailing address for Rio Nido Roadhouse, although Mr. Metzer was understood to be the agent for service of process; 2) it does not provide plaintiff with Mr. Metzger’s new physical address  (It appears to be acknowledged by both parties that all times material to the complaint, the physical address for Rio Nido Roadhouse was 14540 Canyon 2 Road, Rio Nido, California); and 3) it does not state that the Post Office does not deliver mail to 14540 Canyon 2 Road, Rio Nido, California.  In his declaration in support of the motion to quash, Mr. Metzger testified that the post office does not deliver mail to 14540 Canyon 2 Road, Rio Nido, California, so he uses the Post Office Box for his personal mail and for mail to Rio Nido Roadhouse.
 
By failing to file an updated Statement of Information with the Secretary of State providing the new physical and mailing addresses for Rio Nido Roadhouse; by failing to disclose his current physical address to plaintiff; and by failing to inform plaintiff that the Post Office did not deliver mail to 14540 Canyon 2 Road, Rio Nido, California, defendant created a situation where it would not be possible to effect either personal or technically correct substitute service.  Personal service could not be affected on Mr. Metzger because he failed to disclose his new physical address.  Under Mr. Metzger’s theory, substitute service could not be properly affected either.  Defendant effected service at the only possible physical address: defendant’s place of business. (Id. at ¶¶ 6-9.)  Substitute service cannot be made upon a Post Office Box and the summons and complaint must be mailed to the same address where they were left. (CCP § 415.20(a).)  Since defendant’s agent for service of process was not available at the address then provided on the Secretary of State’s website, plaintiff served the manager at the business and thereafter mailed a copy to the business at the same address.  Thus, plaintiff complied with the requirements of CCP § 415.20 and service of summons and complaint was proper.  Any irregularity in the service was solely the result of defendant’s failure to provide the Secretary of State with a current physical address for the agent of service of process as required by law.  (See, Corp. C. §§ 202(c), 1502(b), 17701.13. (a)(2), 17701.14. (a).)
 
Defendant’s motion is denied.
 
Plaintiff is ordered to submit an order consistent with this ruling.
 
6.  SCV-254223, Castle, et al. v. Wells Fargo Bank, et al.
 
Plaintiffs James Christopher Castle and James Clinton Castle move to strike the demurrer filed by defendant Selene Financial LP.  Plaintiffs have previously requested the same relief pursuant to their motion to strike that was filed on December 11, 2013.  The court denied that motion on the grounds that plaintiffs did not show any prejudice from the alleged late filing; that they had not filed proof of service demonstrating Selene Financial LP was properly served with the complaint; and, that plaintiffs have received substantially more notice of the demurrer than is required.
 
The pending motion requests the same relief as previously requested by plaintiffs’ it is a motion for reconsideration of plaintiffs’ motion to strike.  A motion for reconsideration must, in part, be based upon “new or different facts, circumstances or law” than those before the court at the time of the original ruling. (CCP § 1008.)  Plaintiffs have not offered the court any fact, circumstance, or legal authority not previously considered, and some valid reason for not offering it earlier. (See Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500; Mink v. Sup. Ct. (Arnel Develop. Co., Inc.) (1992) 2 Cal.App.4th 1338, 1342; Baldwin v. Home Sav. of America (1997) 59 Cal.App.4th 1192, 1198.)
 
Plaintiffs’ motion is denied.  Defendant is ordered to submit an order consistent with this ruling.
 
7.  SCV-254511, Newman, et al. v. Stewart Title Services, et al.
 
Defendants CR Title Services, Inc. and CitiMortgage, Inc. demur to each cause of action on the ground that each fails to state facts sufficient to constitute a cause of action.  
 
Plaintiffs have not opposed the motion.
 
As to defendant CR Title Services, Inc., except with regard to the second cause of action to set aside trustee sale, the demurrer to each cause of action is sustained without leave to amend.  It is clear from the complaint that CR Title Services, Inc. was not involved in origination of the loan or the foreclosure proceedings.  Therefore, except with regard to the second cause of action, there are no allegations that support a cause of action against CR Title Services, Inc. and there is no way to amend those causes of action to allege a valid cause of action against CR Title Services, Inc.
 
Defendants’ demurrer to the first cause of action for fraud in the origination of the loan is sustained without leave to amend.  The facts of the complaint establish that the action is barred by the statute of limitations.  The statute of limitations on a cause of action for fraud is three years. (CCP § 3387(d).) It begins to run when the plaintiff has information which would put a reasonable person on inquiry. (Kline v. Turner (2001) 87 Cal.App.4th 1369, 1374, citing Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110-1111.) Plaintiffs state that they discovered the fraud when they reviewed the loan documents “within the past year.” (Complaint, ¶ 134.)  The alleged facts establish that plaintiffs had information of circumstances sufficient to put a reasonable person on inquiry regarding the alleged fraud and that they had the opportunity to obtain knowledge regarding the allegations from sources open to their investigation.  (See Grisham v. Philip Morris U.S.A., Inc. (2007) 40 Cal.4th 623, 638, citing Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808.)
 
Defendants’ demurrer to the second cause of action to set aside the trustee’s sale is overruled as to both defendant CitiMortgage and defendant CR Title Services, Inc.  This cause of action alleges that defendants initiated foreclosure proceedings without first contacting plaintiffs as required by Civ. Code § 2923.5. (C., ¶ 61.) Defendants argue that an exhibit to the complaint contains a declaration by an authorized agent of CitiMortgage stating that CitiMortgage or its authorized agent contacted plaintiffs to explore options to avoid foreclosure and provided plaintiffs with the toll-free number provided by HUD. (C., Ex E.) However, plaintiffs’ complaint indicates that this declaration is false. (C., ¶¶ 61-66.) The contents of declaration cannot be judicially noticed to sustain the demurrer. (See Intengan v. BAC Home Loans Servicing LP (2013) 214 Cal.App.4th 1047, 1057-1057.)
 
Defendants’ demurrer to the third cause of action for breach of contract is sustained with leave to amend.  The allegations do not allege the existence of a contract and the breach thereof; i.e., that CitiMortgage was contractually obligated to modify plaintiffs’ loan.
 
Defendants’ demurrer to the fourth cause of action for breach of the implied covenant of good faith and fair dealing is sustained with leave to amend. Plaintiffs have not alleged the existence of a contract with defendants requiring defendants to give plaintiffs a loan
 
modification.  (See Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 349.)  Therefore, they have not alleged facts establishing defendants’ frustration of that agreement.
 
Defendants’ demurrer to the fifth cause of action for violation of TiLA is sustained with leave to amend.  The alleged non-disclosures appear to be material that was within the loan documents themselves. (See C., ¶¶ 2, 22, 43-45, 48-50, 97, 98.)  Plaintiffs discovered the alleged non-disclosures as a result of reviewing the loan documents. (Complaint, ¶¶ 98, 106.)  As such, the limitation period has run on this claim.  In the exercise of reasonable diligence plaintiffs should have discovered the acts constituting the alleged violation by the end of August 2005, or for a claim for violation of section 1639, 1639b, or 1639c, by the end of August 2007 (see 15 U.S.C. section 1640(e)).
 
Defendants’ demurrer to the sixth cause of action for rescission is sustained with leave to amend.  The alleged non-disclosures all relate to items within or related to the loan documents, which plaintiffs obtained after the transaction was completed. (Complaint, ¶ 98.) As such, the three year limitation on a claim for rescission based upon TiLA has run.
 
Defendants’ demurrer to the seventh cause of action for predatory lending and a violation of Bus. & Prof. Code § 17200, et seq., is overruled.  The cause of action for violation of Bus. & Prof. Code § 17200, et seq. is based in part on a violation of Civ. Code § 2923.5.
 
Defendants’ demurrer to the eighth cause of action for unfair and deceptive acts or practices is sustained with leave to amend.  The allegations regarding a violation of Civ. Code § 2923.5 are duplicative of the second cause of action.  The remaining allegations appear barred by the statute of limitations.  Therefore, defendants must allege diligence in discovering the alleged wrongdoing.
 
Defendants’ demurrer to the ninth cause of action for preliminary and permanent injunction is sustained without leave to amend. The request for an injunction is a remedy, not an independent cause of action. (Tide Water Associated Oil Co. v. Superior Court of Los Angeles County (1955) 43 Cal.2d 815, 822.)
 
Defendants’ demurrer to the tenth cause of action to quiet title is sustained with leave to amend.  This cause of action seeks to quiet title that as of August 14, 2012, defendants have no rights in the property. (Complaint, ¶ 170.) However, the exhibits to the complaint show that CitiMortgage’s loan is properly secured by a deed of trust recorded against the property (Complaint, Exs. A, B) and the complaint does not support a cause of action for fraud or rescission of the loan documents.
 
Defendants’ demurrer to the eleventh cause of action for negligence is sustained with leave to amend. The complaint does not allege that CitiMortgage originated the loan documents.  Nor does it allege sufficient facts to establish that CitiMortgage assumed Lehman’s liabilities.
 
Defendants’ demurrer to the twelfth cause of action for declaratory relief is sustained with leave to amend.  Declaratory relief operates prospectively to declare future rights, rather than to redress past wrongs.  A declaratory judgment serves to set controversies at rest before they lead to repudiation of obligations, invasion of rights or commission of wrongs; in short, the remedy is to be used in the interests of preventive justice, to declare rights rather than execute them. (County of San Diego v. State of California (2008) 164 Cal.App.4th 580, 607-608.) This cause of action only seeks to redress past wrongs.
 
Defendants are to submit an order consistent with this ruling.

8.  SCV-254711, O’Hagin et al. v. Trombetta, et al.
 
This is on calendar for the defendants’ special motion to strike.
 
The facts of the underlying case are well-known to the court and the parties. The defendants, Peter Trombetta and William Daniels contend that the complaint in this matter, for abuse of process, is subject to the anti-SLAPP statute.  The defendants argue that the subpoenas sought discovery that was relevant to issues in SCV-252696—as a result could not be construed as wrongful or tortious.  The defendants further argue that the issuing and serving of the subpoenas in question was a protected activity under the litigation privilege.
 
The Plaintiffs Harry O’Hagin and Bryan Gaggs oppose, arguing that the defendants use of subpoenas in SCV-252696 was wrongful and tortious—and importantly not protected under the litigation privilege.  The plaintiff argues that the subpoenas had no connection to the litigation in SCV-252696 in that defendant Williams was a cross-defendant, and the subpoenas dealt exclusively with the claims found in the complaint in SCV-252696, not the cross-complaint.
 
Section 425.16 requires that the court engage in a two-step process when determining whether an anti-SLAPP motion should be granted.  First, the court decides whether the moving party has made a threshold showing that the challenged cause of action is one “arising from” protected activity. CCP § 425.16, subd. (b)(1).  If the court finds such a showing has been made, it then must consider whether the responding party has demonstrated a probability of prevailing on the claim. (See generally Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66-67.)  The moving party in an anti-SLAPP motion has the burden of proof on the threshold issue. (Id. at 66.)  Here, the defendants have the burden on the first issue, the threshold issue; the plaintiffs have the burden on the second issue. (See Ibid.
 
First Prong
The instant lawsuit is completely premised on the issuing and serving of the subpoenas on the banks. (Complaint ¶¶ 11-13.)  It is well settled that causes of action based on litigation and litigation activities fall within CCP § 425.16 (e)(1) and (e)(2). (See Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.)  Indeed, CCP § 425.16  protects “communicative conduct such as the filing, funding, and prosecution of a civil action,” including such acts when “committed by attorneys in representing clients in litigation.”  (See Id. at 1056.) Pleadings, statements and writings “in connection with” civil litigation are covered by the anti-SLAPP statute.  A statement or writing is “in connection with” litigation if it “relates to the substantive issues in the litigation and is directed to persons having some interest in the litigation.” (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1266; Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 962.)
 
Here, the act of issuing and serving the subpoenas was within the purview of the anti-SLAPP statute.
 
Second Prong
To succeed in an action for abuse of process, a litigant must establish that the defendant (1) contemplated an ulterior motive in using the process, and (2) committed a willful act in the use of the process not proper in the regular conduct of the proceedings.  (Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1168.)  Use of the machinery of the legal system for an ulterior motive is a classic
 
indicia of the tort of abuse of process. (See Trear v. Sills (1999) 69 Cal.App.4th 1341, 1359 citing Coleman v. Gulf Ins. Group (1986) 41 Cal.3d 782, 792.)
 
The defendants contend that even if the subpoenas were used in a wrongful manner, it was privileged conduct under Civil Code § 47.  The litigation privilege, codified at Civil Code § 47, subdivision (b), “applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. [Citations.]” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) “ ‘[C]ommunications with “some relation” to judicial proceedings' are ‘absolutely immune from tort liability’ by the litigation privilege.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057.)  “ ‘Both section 425.16 and Civil Code section 47 are construed broadly, to protect the right of litigants to “ ‘the utmost freedom of access to the courts without [the] fear of being harassed subsequently by derivative tort actions.’ ” [Citations.]  It has been established for well over a century that a communication is absolutely immune from any tort liability if it has “ ‘some relation’ ” to judicial proceedings.' ” (Contemporary Services Corp. v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043, 1055, 61 Cal.Rptr.3d 434.)  Thus, if a communication satisfies these criteria, the privilege defeats an abuse of process claim based on the communication. (See, e.g., Rusheen, supra, 37 Cal.4th at p. 1058; Mallard v. Progressive Choice Ins. Co. (2010) 188 Cal.App.4th 531, 536, 543–544 (Plaintiff sued for abuse of process and invasion of privacy against his insurance company on the grounds that the defendant insurance company (and its attorney, also a defendant) issued and served subpoenas seeking the plaintiff’s mental health records.  The attorney defendant filed an anti-SLAPP motion. The court found that the subpoenas were subject to both the anti-SLAPP statute, and that they were privileged under Civil Code § 47(b) as they had “some connection” with the underlying litigation.)  “Both section 425.16 and Civil Code section 47 are construed broadly, to protect the right of litigants to “ ‘the utmost freedom of access to the courts without [the] fear of being harassed subsequently by derivative tort actions.’ ” [Citations.] Thus, it has been established for well over a century that a communication is absolutely immune from any tort liability if it has “ ‘some relation’ ” to judicial proceedings.” (Healy v. Tuscany Hills Landscape & Recreation Corp. (2006) 137 Cal.App.4th 1, 5–6.)
 
There is no exception to the litigation privilege created by Civil Code § 47(b) where the underlying lawsuit was frivolous lawsuit or otherwise “lacked evidentiary merit.”  (See La Jolla Group II v. Bruce (2012) 211 Cal.App.4th 461, citing Alpha and Omega Development, LP v. Whillock Contracting, Inc. (2011) 200 Cal.App.4th 656.)  As the courts in those cases explained, the merit of the case in which communicative act is taken is irrelevant.  Finally, it cannot be said, in light of the mandates that CCP § 425.16 and Civil Code § 47(b) be construed broadly, that the subpoenas issued by defendant “had no relation to the judicial proceedings.”
 
Plaintiffs have failed to establish a probability of prevailing; the issuance and service of the subject subpoenas were privileged under Civil Code § 47(b).  Accordingly, the defendants’ motion to strike is granted.  Defendants are to submit an order consistent with this ruling.
 
9.  SFL-19708, In Re: Marriage or O’Hagin and Stollenwerk
 
The Motion to Tax Costs filed by petitioner Harry O’Hagin is granted.  Petitioner is ordered to submit an order consistent with this ruling.
 
10.  SPR-85662, Estate of Eugene E. Bulin
 
Respondent Thomas M. Egan demurs to the “Contest and Grounds of Objection to Probate of Purported Will” (“Contest”) filed by contestant Steven Carney. The motion is made on the grounds that the Contest fails to state facts sufficient to contest the probated will.
The demurrer is overruled.  The Contest alleges facts sufficient to establish a viable contest to the petition as this court is not required to accept New Jersey’s determination that decedent was domiciled in New Jersey.  (In re Reynolds' Estate (1933) 217 Cal. 557, 560-561.)
 
Contestant Steven Carney requests leave to amend the Contest to allege additional facts to support the finding of an exception under Probate Code section 12522(a).  The court will allow leave to amend.  Contestant may file and serve an amended Contest on or before May 2, 2014.
 
Contestant is to submit an order consistent with this ruling. 
 
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