Jun 17, 2018



Wednesday, June 13, 2018, 3:00 p.m.

Courtroom 18 – Hon. René Auguste Chouteau

3055 Cleveland Avenue, Santa Rosa



CourtCall is available for all Law & Motion appearances, EXCEPT parties in 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) 521-6730, and all other opposing parties of your intent to appear by 4:00 p.m. today, Tuesday, June 12, 2018.  Parties in motions for claims of exemption are exempt from this requirement.


PLEASE NOTE:  The Court WILL provide a Court Reporter for this calendar.  If there are any concerns, please contact the Court at the number provided above. 



1.         MCV-240172, Collectronics, Inc. v. Ahmed


            Plaintiff’s unopposed motion to amend the Order Granting Motion to Appoint Michael Brewer as Receiver (“the Order”) is GRANTED.  The court finds the identification of an incorrect liquor license number in the Order was the result of Plaintiff’s mistake, inadvertence, surprise, and/or excusable neglect pursuant to Code of Civil Procedure section 473(b).


            Plaintiff’s request for judicial notice of the Order and of the Judgment in this case is GRANTED.


            The Order shall be amended to reflect the liquor license number is 588942.


            Plaintiff has only submitted a proposed amended order appointing Brewer as receiver and stating the new liquor license number.  However, Plaintiff must submit an order consistent with this ruling, which reflects the basis for the issuance of the amended order appointing Brewer.



2.         MCV-245093, Breckenridge Property Fund 2016, LLC v. Steele


            Appearances required.



3.         SCV-257533, Plichcik v. Plichcik


            Plaintiff’s motion for attorney fees and costs pursuant to Code of Civil Procedure section 473(b) is granted in the amount of $11,339.10.


            In a prior motion, this court granted Defendant relief from entry of default and default judgment based upon his prior attorney’s affidavit of fault. 


            Subdivision (b) of Code of Civil Procedure section 473 provides, in relevant part: “The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.”  And, as stated in Rogalski v. Nabers Cadillac (1992) 11 Cal.App.4th 816, 822: “Section 473 allows the court to impose just conditions in setting aside a default. Such conditions might include the attorney fees and costs incurred by the plaintiff in obtaining the default judgment and a maximum of $1,000 in sanctions.”


            In order to determine the amount of attorney fees and costs to award Plaintiff in relation to the Code of Civil Procedure section 473(b) motion, the court directed Plaintiff’s counsel to file this separate motion.

            Pursuant to the motion, Plaintiff is seeking a total of $96,765.52 in attorney fees and costs – which includes her billing for this entire case to date and $1,600 for this motion.  (Decl. of Fairbairn, ¶¶ 6-8 & Exh. B.)  Plaintiff seeks an additional $285,229 in costs incurred in the case so far.  (Decl. of Susan Plichcik, ¶ 5.) The court finds it would be unreasonable and unjust to impose the entire amount of attorney fees and costs claimed by Plaintiff to date on Defendant’s former counsel based on his mistake in relation to the entry of default and default judgment.  And, as argued in the opposition to this motion, Plaintiff has made no attempt to identify those fees and costs incurred only in obtaining the entry of default and default judgment.  Therefore, the court has determined what it considers reasonable fees and costs based on those billing entries which are descriptive enough to evaluate and categorize.  Based on the court’s assessment of the record before it, its knowledge of this case and of attorney hourly rates in this community, the court finds 32.1 hours at $350/hour in attorney fees and $104.10 in costs will reasonably compensate Plaintiff’s legal fees and costs under Code of Civil Procedure section 473(b).


            The court declines to impose an additional sanction of $1,000 on Defendant’s former counsel. 


            Accordingly, Plaintiff is awarded a total of $11,339.10, which is to be paid by Defendant’s former counsel within 45 days of notice of entry of this order.


            Plaintiff is to submit an order consistent with this ruling.



4.         SCV-260148, Spain v. Yeomans


            Defendant’s motion to compel Plaintiff’s discovery responses is GRANTED.


            Plaintiff shall pay Defendant $210 in monetary sanctions and serve his verified answers, without objection, to the Form and Special Interrogatories and the Demand for Production, within twenty days of the hearing on this motion. 


            Defendant shall submit an order consistent with this ruling.



5.         SCV-261261, Bergamini v. Duley


            DROPPED from calendar at the request of counsel for moving party.



6.         SCV-261900, LaPierre v. Larrieu


            Defendant Larrieu’s motion for sanctions pursuant to Code of Civil Procedure section 128.7(b) is DENIED.


            Procedurally, the court finds Larrieu failed to establish that she satisfied the safe harbor period by serving the notice of motion and motion on Plaintiff 21 days before the motion was filed.  (Code Civ. Proc. § 128.7(c)(1).) 


            On the merits, the court finds the circumstances do not support imposition of sanctions at this time.  As stated in Peake v. Underwood (2014) 227 Cal.App.4th 428, 448: “Code of Civil Procedure section 128.7 sanctions should be ‘made with restraint’ [citation], and are not mandatory even if a claim is frivolous. [Citations.] Further, when determining whether sanctions should be imposed, the issue is not merely whether the party would prevail on the underlying factual or legal argument. Instead, courts should apply an objective test of reasonableness, including whether ‘any reasonable attorney would agree that [the claim] is totally and completely without merit.’ [Citations.] Thus, the fact that a plaintiff fails to provide a sufficient showing to overcome a demurrer or to survive summary judgment is not, in itself, enough to warrant the imposition of sanctions.”


            The Peake Court went on to opine: “Because our adversary system requires that attorneys and litigants be provided substantial breathing room to develop and assert factual and legal arguments, sanctions should not be routinely or easily awarded even for a claim that is arguably frivolous. Courts must carefully consider the circumstances before awarding sanctions.”  (Peake v. Underwood, supra, 227 Cal.App.4th 428, 448)


            Some of Plaintiff’s claims appear arguably frivolous.  For instance, the Real Estate Transfer Disclosure Statement shows that the property did not have carbon monoxide devices.  (Larrieu’s Motion, Exh. 16.)  This puts Plaintiff’s claim regarding carbon monoxide in question.  However, Larrieu has not provided any legal grounds supporting her assertion that all Plaintiff’s claims lack merit.  And, from the complaint, and the documents submitted by Larrieu, there appear to be some latent defects that may not have been disclosed to Plaintiff.  For example, the alleged mold, water leaks and warranty status of the roof may not have been disclosed.  Therefore, the court finds that based on the spare record before it, not all of Plaintiff’s claims are totally and completely without merit.  Accordingly the motion for sanctions is denied.


            Plaintiff shall submit an order consistent with this ruling.



7.         SCV-262064, Glockner v. Picard


            Defendants’ demurrer to the complaint is sustained with leave to amend.


            Defendants’ request for judicial notice of the Legislative History of Civil Code section 1670.8 is granted.  However, Defendants’ request for judicial notice of records of the California Secretary of State entitled “Articles of Incorporation for Pastor of St. Francis Solano Catholic Church of Sonoma, a corporation sole filed March 13, 2017” is denied. The Articles of Incorporation were prepared by Defendants and the Plaintiffs dispute the contents.  Therefore, the court can only take judicial notice of the fact the document was officially filed but not of its contents.  (People v. Thacker (1985) 175 Cal.App.3d 594, 598.)  But Plaintiffs already allege the existence of the corporation in paragraph 15 of the complaint.  Consequently, it is unnecessary for the court to take judicial notice of the fact the Articles of Incorporation were filed with the Secretary of State.


            In their complaint, Plaintiffs allege the Defendants – the Roman Catholic Bishop of Santa Rosa, St. Francis Solano School and various employees thereof – violated Civil Code section 1670.8 (unlawful private gag orders) and Business and Professions Code sections 17200, et seq. (the Unfair Competition Law).


            Specifically, Plaintiffs allege the 2016-2017 and 2017-2018 academic year contracts they executed in order to enroll their son in the St. Francis Solano School contained an unlawful non-disparagement provision.  Plaintiffs allege the provision silenced them from making truthful internet and public postings regarding Defendants and their employees, agents and services.  The non-disparagement provision states: “Internet/Public Postings: The content of a parents’ or students’ blog should not include derogatory statements regarding the school, enrolled students or their parents, teachers, the administrator, or the pastor.  Derogatory postings by either students or their parents may result in the expulsion of the student.” 


First Cause of Action – Violation of Civil Code section 1670.8


            Subdivision (a)(1) of Civil Code section 1670.8 states: “A contract or proposed contract for the sale or lease of consumer goods or services may not include a provision waiving the consumer's right to make any statement regarding the seller or lessor or its employees or agents, or concerning the goods or services.”  Subdivision (c) of Civil Code section 1670.8 goes on to provide that “[a]ny person who violates this section shall be subject to a civil penalty…”[1]


            Defendants demur to this cause of action on the grounds that section 1670.8 does not apply to them.  Defendants rely on Doe v. California Lutheran High School Association (2009) 170 Cal.App.4th 828, 838, in support.  Notably, California Lutheran is not on point as it only analyzed the Unruh Civil Rights Act and Plaintiffs are not suing under the Act. The Unruh Act specifically prohibits “business establishments” from discrimination, whereas section 1670.8 prohibits non-disparagement provisions in contracts for “consumer goods and services.”  Nevertheless, Defendants argue that because St. Francis Solano School is a private religious school, it is not a “business establishment” so it must follow that it also cannot be construed to be a provider of “consumer goods or services.” 


            Plaintiffs respond by arguing that Defendant’s Parent/Student Handbook falls within the prohibitions of section 1670.8.


            In the reply, Defendants urge the court to interpret section 1670.8 as applying only to online consumer purchases and to exempt religious education. 


            “As with any issue of statutory interpretation, we begin with the text of the relevant provisions.  If the text is unambiguous and provides a clear answer, we need go no further.” (Microsoft Corp. v. Franchise Tax Bd. (2006) 39 Cal.4th 750, 758.).  If a statute is ambiguous, the court must engage in a three step process to determine the meaning of the statute.  First, the court considers the language of the statute.  Second, the court reviews the legislative history.  Third, the court applies reason, practicality and common sense.  (Maricela v. Superior Court (1998) 66 Cal.App.4th 1138, 1143.)  In carrying out this process, the court should look to the ostensible object to be achieved and the evils to be remedied.  (Intl. Fed. Of Prof. & Tech. Engineers, AFL-CIO v. City of San Francisco (1999) 76 Cal.App.4th 213, 225.)


            Subdivision (a) of section 1670.8 provides a terse and arguably broad prohibition of contracts waiving a consumer’s right to make any statement as to goods and services or the purveyors thereof.  The statute provides no definition of its terms, including “contract for sale of consumer goods or services,” “any statement,” or “seller or lessor.”  The statute’s placement with other unrelated statutes in Title 4, Unlawful Contracts provides no assistance in interpreting its terms.  The court finds the plain language and scope of section 1670.8 to be ambiguous and next turns to the legislative history to aid in its interpretation.


            The legislative history confirms that the evil intended to be remedied by section 1670.8 was the inclusion of waiver provisions in the “mass of boilerplate” contained in the “Terms and Conditions of Service” appended to internet contracts for sales of goods and services.  Nowhere in the legislative history is an indication that the scope of section 1670.8 was intended to extend beyond this objective to include the provisions contained in a Parent/Student Handbook issued by a parochial school.


            Applying the third level of analysis, reason, practicality and common sense would indicate that the scope of section 1670.8 does not prohibit an elementary school’s attempt to control destructive behavior by its young students and their parents.  The student handbook at issue merely advises that blog sites of students and parents “should not include derogatory statements regarding the school, enrolled students or their parents, teachers, the administration, or the pastor.”  This precatory language is followed by the warning that such postings “may result in expulsion of the student.” 


            This language does not limit a parent’s ability to bring complaints to the attention of the school, its employees, administrators, its governing board, or the public at large through a variety of methods, electronic and otherwise, including oral and written complaints, emails, letters to the editor of the local paper, or personal appearances at public meetings.  It is designed to avoid the negative effects of using blog sites to bully, disrespect, demean, deprecate, and disparage other students of tender years and other members of the school community.  The current misuse of the internet to anonymously abuse others as addressed in the Handbook is an evil that the legislature clearly did not want to insulate through the operation of section 1670.8.


            An elementary school is not an online purveyor of goods and services, but rather a community of educators, students and parents, the mission of which is the education of the student in both academic subjects and society’s norms of behavior including civility and respect for others.  The Handbook does nothing more than further this goal and does not fall within the ambit of section 1670.8.


            The court is skeptical that Plaintiffs will be able to amend the first cause of action to state a cause of action, but, as this is the first demurrer to the complaint, the court will afford this opportunity to Plaintiffs, should Plaintiffs so desire.


Second Cause of Action – Violation of Unfair Competition Law (UCL)


            Plaintiffs allege Defendants violated the “unlawful” and “unfair” prongs of the UCL by violating Civil Code section 1670.8.


            Defendants first argue this claim fails because the UCL does not apply to religious schools.  Whether particular conduct is a “business practice” within the meaning of Business and Professions Code section 17200 is a question of fact which depends on the circumstances of each case.  (Isuzu Motors Ltd. v. Consumers Union of U.S., Inc. (C.D. Cal. 1998) 12 F.Supp.2d 1035, 1048.) “What constitutes ‘unfair competition’ or ‘unfair or fraudulent business practice’ under any given set of circumstances is a question of fact…” (Payne v. United California Bank (1972) 23 Cal.App.3d 850, 856.)   However, since this cause of action rests entirely on the viability of Plaintiffs’ first cause of action, the court will sustain the demurrer to the second cause of action without prejudice as well. 


            Defendants also argue that Plaintiffs have failed to allege a cause of action because they fail to allege that they suffered any loss of money or property as a result of Defendants’ conduct.  The court agrees.  Plaintiffs have failed to adequately allege that they suffered economic injury as a result of the non-disparagement provision in the contracts.


            There are innumerable ways in which economic injury from unfair competition may be shown. A plaintiff may (1) surrender in a transaction more, or acquire in a transaction less, than he or she otherwise would have; (2) have a present or future property interest diminished; (3) be deprived of money or property to which he or she has a cognizable claim; or (4) be required to enter into a transaction, costing money or property, that would otherwise have been unnecessary.”  (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 323.) 


            In this case, Plaintiffs allege at paragraph 74 of the complaint:


“As a direct and foreseeable result of Defendants’ violations of the UCL, Plaintiffs and members of the Class were injured in that their free-speech rights under the United States Constitution and the California Constitution were impinged, they were placed in fear of their children’s expulsion should they speak out, and they were unable to use technology to crowdsource solutions to real-world problems at the St. Francis School—thus causing those problems to fester, unaddressed.”


            The above allegations make no mention whatsoever of economic injury.  While Plaintiffs allege that Defendants collected tuition money from them, the connection between the non-disparagement provision and Plaintiffs’ purported economic injury is not alleged. 


            Plaintiffs have 20 days from notice of entry of this order to amend the Complaint.  Defendants shall submit an order consistent with this ruling.


[1] All further statutory references are to the Civil Code unless otherwise noted.

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