May 29, 2020



Friday, May 29, 2020, 1:30 p.m. via Zoom

Courtroom 18 – Hon. Elliot Daum

First Amended Omnibus General Order of the Presiding Judge re Court Operations: The court will call this calendar via Zoom.

If the tentative ruling is accepted, no appearance is necessary via Zoom unless otherwise indicated.  CourtCall is not permitted for this calendar.

D18 — L&M 1:30pm Friday, May 29, 2020
Meeting ID: 857 6148 0942
Password: 521572

+1 669 900 6833 US (San Jose)

Guide for participating in court proceeding via Zoom D18



-After joining the meeting and checking in with the clerk, please mute your audio when not speaking. This helps keep background noise to a minimum.
-Be mindful of background noise when your microphone is not muted. Avoid activities that could create additional noise, such as shuffling papers.
-Position your camera properly if you choose to use a web camera. Be sure it is in a stable position and focused at eye level, if possible. Make sure everything visible in the frame is appropriate for an appearance in court.
-If a confidential session becomes necessary it is incumbent on you to ensure you are able to participate from a private location so that unauthorized people cannot overhear or see the proceedings.
-Chat is enabled for the sharing of documents among participants and the court and to allow attorneys to communicate individually with each other or their clients only. No chat messages should be sent privately to the court as it would amount to an unauthorized ex parte communication. Neither should chat messages be sent to all participants unless directed by the court.
-The recording function has been disabled. Remember, the prohibition against recording court proceedings, even remote ones, remains.
-To assist the court reporter please state your name before each time you talk.
-Be patient. Check in will take more time and the experience from those who have tried this before is that proceedings are a little slower generally.
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, Thursday, May 28, 2020. 
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-247411, American Express National Bank, FSB v. Avila:
Plaintiff’s unopposed motion to deem facts as admitted is GRANTED. No monetary sanctions were sought, or noticed, therefore none are ordered by the court.
2.         SCV-263488, Shapiro v. Harbor Freight Tools, USA, Inc.:
Plaintiffs’ counsel’s motion to be relieved as counsel is GRANTED.
3.         SCV-263626, John Doe 1 v. Boys & Girls Clubs of America:
Plaintiffs’ unopposed motion for leave to file a first amended complaint is GRANTED.
4.         SCV-264400, Marcel Wirtz v. Bulloch:
Plaintiff Wirtz moves to compel further responses to: (1) Form Interrogatories, Nos. 2.3, 2.4, 2.5, 15.1, 16.1, 16.2, 16.3, 17.1, & 50.1 – 50.6; (2) Special Interrogatories, Nos. 1 – 34; (3) Requests for Production, Nos. 1 – 158; and (4) Requests for Admissions, Nos. 1-31.
            This motion was heard on December 11, 2019, but the court continued the hearing after ordering the parties to engage in meaningful meet and confer efforts and to detail those efforts in declarations filed no later than December 20, 2019. Wirtz was also ordered to file a code-compliant supplemental separate statement.
            Wirtz filed an amended separate statement (406 pages long) as well as a meet and confer declaration on December 20, 2019. (1)
            Defendant served significantly amended discovery responses (to all but the requests for production) on December 23, 2019, and he invited a meet and confer response regarding the adequacy of the amended responses.
            Wirtz filed his reply documents on January 10, 2020. The reply does not address whether defendant’s amended responses are adequate, or whether Wirtz has attempted to meet and confer regarding those amended responses.
             The court is in no position to evaluate whether defendant’s amended responses are satisfactory to Wirtz. Consequently, the court finds the motion as to the interrogatories and requests for admission is moot, except for monetary sanctions, which are addressed below. 
            The court is unclear on where the parties stand regarding the request for production of documents. Defendant’s initial responses to document production were only objections, primarily assertion of his Fifth Amendment right against self-incrimination. But defendant also appears to contend he is not in possession of any responsive documents, other than those that are publicly available. (Koman Declaration re: meet and confer efforts, Ex. 3.) He offered to provide Wirtz with a sworn declaration to that effect. (Ibid.)
            Assuming the parties have not resolved their issues regarding the requests for production, the court will address defendant’s assertion of the right against self-incrimination. This objection arises because Wirtz filed a complaint against defendant with the State Bar based on the same grounds as this action. However, it is unclear whether the State Bar is pursuing any disciplinary (but non-criminal) charges against defendant.
            As argued by Wirtz, the Fifth Amendment right against self-incrimination is inapplicable here because defendant faces no criminal liability. “The purpose of disciplinary proceedings against attorneys is not to punish but rather to protect the court and public from the official ministrations of persons unfit to practice. [Citations.] Such a proceeding is not a criminal case for purposes of the Fifth Amendment privilege against self-incrimination.” (Segretti v. State Bar (1976) 15 Cal.3d 878, 886.)
            And, Black vs. State Bar (1972) 7 Cal.3d 676, authority relied on by defendant, applies to State Barproceedings. In Black, the California Supreme Court reasoned: “With respect to our state constitutional privilege against self-incrimination, it has been held that an attorney against whom a disciplinary proceeding is brought does not have the complete immunity from testifying of the defendant in a criminal case; he may be compelled to testify but may refuse to answer questions on the ground that his testimony would ‘tend to incriminate him.’ [Citations.]” (Id. at p. 686.)
            Here, there is no criminal liability for defendant and there remains only a possibility that the State Bar will decide to go forward with disciplinary charges against him. Defendant has cited no direct authority that he can refuse to respond to discovery in a civil case on the ground that it may “incriminate” him in State Bar disciplinary proceedings. Moreover, defendant claims that any responsive documents are publicly available, which appears to undermine his claim of privilege. It follows that defendant’s blanket objections fail to explain specifically how the requested document categories would cause a reasonable danger of incrimination under the circumstances. Therefore, the court overrules the objections (2) and grants the motion to compel further responses as to the requests for production.
            It is unclear to the court whether originals of defendant’s verifications have been provided to Wirtz. If not, defendant must do so forthwith.
            The court orders defendant to pay Wirtz a total of $3,560 in monetary sanctions based on 10 hours at $350/hour plus $60.00 in filing fees. This is less than Wirtz sought, but the court finds it a reasonable sum. Defendant’s responses to the requests for production and the monetary sanctions shall be provided within 30 days of this hearing.
            The court appreciates the time and effort expended by the discovery facilitator, Victor C. Thuesen, Esq.
            Plaintiff Wirtz shall submit an order consistent with the above ruling.
Defendant’s counsel’s declaration was not filed until January 7, 2020. However, no prejudice appears to have been suffered as a result since this hearing is being held months later.
Defendant’s other objections, including: duplicative, overbroad, vague, ambiguous and unduly burdensome, are also overruled. Defendant does not mention, let alone make any effort to justify those objections in his opposition. (Coy v. Superior Court (1962) 58 Cal.2d 210, 220–221.)
5.         SCV-264457, Rowley v. Sports Equity Partners, LLC:                    
Defendants’ motion for leave to file amended answers to the complaint is GRANTED.
            “Ordinarily, courts should ‘exercise liberality’ in permitting amendments at any stage of the proceeding. [Citations.] In particular, liberality should be displayed in allowing amendments to answers, for a defendant denied leave to amend is permanently deprived of a defense. [Citations.]” (Hulsey v. Koehler (1990) 218 Cal.App.3d 1150, 1159.)
            Here, trial is set out four months and there is no prejudice to plaintiff in allowing the individual defendants Joe Lourdeaux, Brad Bergum, Jenny Ogston, and Ryan Porter leave to file amended answers to include an affirmative defense alleging that the workers compensation exclusive remedy provisions bar plaintiff’s causes of action for intentional and negligent infliction of emotional distress.
            Moving defendants shall submit an order consistent with the above ruling and file their proposed amended answers within ten days of this hearing.
6.         SCV-265123, Thomas v. Rappold
Defendant Rappold’s motion to dismiss this action is DENIED.
            Rappold failed to file (and serve) a notice of hearing on the motion and supporting memorandum in violation of California Rule of Court 3.1112(a) and (d). Additionally, defendant did not cite any legal basis for the relief he seeks, which is required by Rule of Court 3.1113(a) and (b).
            Plaintiff shall file an order consistent with the above ruling.
7.         SCV-265536, Obrien Watters & Davis, LLP v. Nessinger:
Petition to compel arbitration is DROPPED. No proof of service of the petition has been filed.
8.         SCV-265854, In the Matter of the determination of the identity of James P.   
            Jason and John Alan Ice:
John Alan Ice’s verified petition for order determining identity of person in chain of title pursuant to CCP sections 770.010 et seq. is GRANTED.
*This is the end of the Tentative Rulings* 
© 2020 Superior Court of Sonoma County