Jun 23, 2017



Wednesday, June 21, 2017, 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 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) 521-6730, and all other opposing parties of your intent to appear by 4:00 p.m. today, Tuesday, June 20, 2017.  Parties in small claims cases and motions for claims of exemption are exempt from this requirement.



1.         MCV-233282, Northern California Conference of Seventh-Day Adventists v. Hetzer





2.         MCV-241192, Ratto v. Zhou


            Shujing Zhou’s motion to consolidate is granted.


            This is a landlord-tenant dispute involving a commercial lease in downtown Santa Rosa.  Zhou, seeks to consolidate the unlawful detainer action (MCV-241192) with her unlimited civil case (SCV-260464).


            Zhou’s unopposed request for judicial notice of pleadings filed in this case and the unlimited civil action is granted.


            Code of Civil Procedure section 1048(a) provides:  “When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.”


            “The tenant's fraud charge or other defense raising a title issue may, of course, be adjudicated in an independent civil action, generally as an unlimited civil case.  If an unlawful detainer is pending (generally as a limited civil case) at the same time, the unlimited jurisdiction trial court may stay the UD until trial of the related civil action; or, in the alternative, may consolidate the actions.  [Martin-Bragg v. Moore, supra, 219 CA4th at 385, 161 CR3d at 484-485 (citing text); Asuncion v. Super.Ct. (W.C. Fin'l, Inc.), supra, 108 CA3d at 146-147, 166 CR at 309-310; see Wilson v. Gentile, supra, 8 CA4th at 761, 10 CR2d at 714 – UD for nonpayment of rent consolidated with tenant's specific performance action to compel sale pursuant to option to purchase] Staying the unlawful detainer is in the nature of an injunction and a bond may be required.  [See CCP § 526; and discussion at ¶7:35]” (The Rutter Group, Cal. Prac. Guide Landlord-Tenant Ch. 7-C, §7:268.)


            Zhou’s civil case and the unlawful detainer action are based on common questions of law and fact.  In the unlawful detainer the Rattos seek possession of the premises.  Zhou’s civil complaint alleges fraud, misrepresentation and breach of contract in relation to the lease agreement.  She also seeks declaratory relief that she properly exercised the lease option and is the holder of a leasehold estate for the option term as well as specific performance directing the Rattos to extend the lease term accordingly.  If Zhou prevails on her claims it will defeat the Rattos’ right to possession.  The court finds Zhou should not be denied the substantial procedural rights accompanying her related civil action.  Additionally, if the cases are not consolidated, there is a risk of inconsistent judgments.


            Zhou has substantially complied with the procedural requirements pursuant to California Rules of Court, Rule 3.350 and no prejudice was caused the Rattos by Zhou’s failure to file notice of motion in both cases.


            Accordingly, Zhou’s motion is granted.  SCV-260464 shall be the lead case.


            Zhou shall submit an order consistent with this ruling.



3.         SCV-256588, Chavez v. Silver


            These matters will be handled by the Hon. Lynn Duryee, Discovery Referee.



4.         SCV-258814, Freeman v. Wells Fargo Bank


            Defendant Quality Loan Service Corporation’s (“Quality”) demurrer is sustained.


            Quality’s requests for judicial notice of recorded documents are granted.  Even though Quality’s supplemental request for judicial notice was filed in support of the reply brief, the court has granted that request as well because Quality was responding to significant developments in the case that transpired after the demurrer was filed and to which Plaintiff referred to in her opposition.


            This is a foreclosure action in which Plaintiff alleges violations of the Homeowner Bill of Rights (HBOR) by Wells Fargo Bank and Quality.  When Plaintiff filed this action, the foreclosure sale had yet to occur.  Plaintiff has since settled with Defendant Wells Fargo Bank and dismissed it from this action.  Plaintiff states in her opposition that “all foreclosure and payment issues have been resolved.  There is no longer a need for injunctive relief.”  (Oppos., pg. 2.)  Presumably then, a trustee’s deed upon sale has not been recorded.


            Quality remains in the case and now demurs to Plaintiff’s second amended complaint, which alleges: (1) violations of Homeowner Bill of Rights (HBOR), Civil Code sections 2923.55, 2923.7, 2924c and 2924.17; (2) enjoin trustee’s sale; (3) breach of contract [only alleged against Wells Fargo]; (4) breach of implied covenant of good faith and fair dealing; and (5) unfair business practices.


            The third cause of action for breach of contract is not alleged against Quality, and Plaintiff has conceded the second cause of action for injunctive relief is moot.


            As to the remaining causes of action, the gravamen of all Plaintiff’s claims against Quality are based on violation of Civil Code section 2923.55.  Plaintiff alleges Quality recorded the notice of default without complying (or ensuring that Wells Fargo complied) with the requirements under HBOR.


            Civil Code section 2924.12 provides that Plaintiff may bring an action for either injunctive relief or monetary damages based on a material violation of Civil Code section 2923.55.  Here, Plaintiff no longer seeks injunctive relief and her remaining claims will not support monetary damages because she does not allege that a trustee’s deed upon sale has been recorded.


            As stated in subdivision (b) of section 2924.12:


After a trustee's deed upon sale has been recorded, a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall be liable to a borrower for actual economic damages pursuant to Section 3281, resulting from a material violation of Section 2923.55, 2923.6, 2923.7, 2924.9, 2924.10, 2924.11, or 2924.17 by that mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent where the violation was not corrected and remedied prior to the recordation of the trustee's deed upon sale. If the court finds that the material violation was intentional or reckless, or resulted from willful misconduct by a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent, the court may award the borrower the greater of treble actual damages or statutory damages of fifty thousand dollars ($50,000).


            Absent the prerequisite recording of the trustee’s deed upon sale, Plaintiff has no private right of action for damages.  Additionally, the court finds misplaced any contention by Plaintiff that her remaining claims are not subject to the restrictions imposed by Civil Code section 2924.12.  As stated in Residential Capital v. Cal-Western Reconveyance Corp. (2003) 108 Cal.App.4th 807, 827:  “No negligence cause of action need be recognized here. Otherwise, we would be engaging in judicial legislation by grafting a tort remedy onto a comprehensive statutory scheme in the absence of a compelling justification for doing so.”


            Plaintiff generally requests leave to amend but it does not appear that the defect identified above can be cured unless Plaintiff can allege a trustee’s deed upon sale was recorded prior to Quality’s recordation of the Rescission of Notice of Default.  (Civ. Code § 2924.12(c); Quality’s Supplemental RJN, Ex. A.)  Subdivision (c) of Civil Code section 2924.12 states:  “A mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not be liable for any violation that it has corrected and remedied prior to the recordation of a trustee's deed upon sale, or that has been corrected and remedied by third parties working on its behalf prior to the recordation of a trustee's deed upon sale.”


            Accordingly, the court sustains the demurrer without leave to amend. 


            Defendant shall submit an order consistent with this ruling.



5.         SCV-259002, Medeiros v. Macias


            Defendant Avelina Macias’s demurrer is overruled and Defendant Joe Bhai’s demurrer is sustained without leave to amend.  


            Moving Defendants both demur to Plaintiff’s first amended complaint (“FAC”) for negligence and premises liability based on a fatal shooting which occurred during a party at a residence.


            Avelina Macias’s Demurrer


            The court finds Plaintiff has adequately alleged vicarious liability of Defendant Macias for the alleged negligence of her grandson, Defendant Abel Macias (“Q”) under a principal-agency relationship.  This finding also applies to the related premise liability cause of action. “Premises liability is a form of negligence based on the holding in Rowland v. Christian, supra, 69 Cal.2d 108, and is described as follows: The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence.” (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.)


            “While a member of a family may be an agent of another member of the family, for purposes of imputing negligence the mere gratuitous performance of familial services by one for the other does not convert the family activity into a joint enterprise [citation] or establish a principal and agency relationship between them [citation].” (Harpst v. Kirkpatrick (1972) 26 Cal.App.3d 482, 486, citations omitted.)


            “The existence of agency or employment is mainly a question of fact.” (3 Witkin, Summary 10th Agency § 93 (2005), citations omitted.) 


            “The rule of respondeat superior is familiar and simply stated: an employer is vicariously liable for the torts of its employees committed within the scope of the employment.” (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296.)


            The court previously overruled Q’s demurrer to the original complaint finding that allegations of negligence and premises liability were adequately alleged against him.  In the FAC, Plaintiff alleges Macias owned the property where the shooting occurred and that both she and Q lived on property.  She further alleges Macias charged Q no rent (or substantially reduced rent) in return for Q taking care of the property.  Plaintiff alleges this was not just a familial, but a financial relationship which benefitted Macias.  Plaintiff further alleges Q had full control of the property and Macias gave him full authority to have the party and invite whomever he wished.  (See FAC, ¶¶ 18-21 & 41.)  


            In light of the foregoing, the demurrer to the negligence and premises liability causes of action is overruled.


            Plaintiff shall submit an order consistent with this ruling.


            Defendant Joe Bhai’s Demurrer


            Defendant Bhai demurs on the ground that he owed no duty to the decedent and that he did not own or control the premises.  Plaintiff argues Bhai’s duty was predicated on a special relationship between himself and decedent.


            The court confirms that Defendant Bhai did not assume a special relationship with the minor decedent by inviting him to a party at Q’s house.


            As stated in Melton v. Boustred (2010) 183 Cal.App.4th 521, 535:


“[A] special relationship may give rise to a legal duty to protect the plaintiff from third parties, even in the absence of misfeasance by the defendant. ‘The special relationship situations generally involve some kind of dependency or reliance.’ (Olson v. Children's Home Society (1988) 204 Cal.App.3d 1362, 1366, 252 Cal.Rptr. 11; see Pamela L. v. Farmer, supra, 112 Cal.App.3d at p. 211, 169 Cal.Rptr. 282 [based on defendant's invitation to neighbor children, ‘necessary special relationship” could “be inferred’].) ‘Courts have found such a special relationship in cases involving the relationship between business proprietors such as shopping centers, restaurants, and bars, and their tenants, patrons, or invitees.’ (Delgado, supra, 36 Cal.4th at p. 235, 30 Cal.Rptr.3d 145, 113 P.3d 1159.) In addition, such ‘special relationships triggering a duty to protect another from foreseeable injury caused by a third party have been found in other contexts, including those of (i) common carriers and passengers, (ii) innkeepers and their guests, and (iii) mental health professionals and their patients.’ ” (Id. at p. 236, fn. 14, 30 Cal.Rptr.3d 145, 113 P.3d 1159.)


            “The courts in this state have held that an adult who invites a minor into his or her home assumes a special relationship with that youngster based on the minor’s vulnerability to third party misconduct and dependence on the adult for protection from risks of harm while in the home.” (Romero v. Superior Court (2001) 89 Cal.App.4th 1068, 1080–81.) 


            In the FAC, Plaintiff alleges that both the decedent and Defendant Bhai were minors when Bhai invited decedent to the party.  Plaintiff alleges that despite Bhai being a minor he was “competent and he knew and understood the risks and probably consequences of his actions.”  (FAC, ¶¶ 7and 23.)  However, Plaintiff does not allege that Bhai owned or was in control of the premises; she alleges Q was in full control of the property.  (FAC, ¶¶ 5, 18 and 41.)


            Plaintiff argues, without citing authority specific to application of the special relationship theory, that Bhai had the requisite mental capacity to be held liable as an adult under that theory.  Even assuming without deciding that Plaintiff is correct, Plaintiff still does not allege that Bhai was the owner of the property.  Under Romero, that is a necessary element.  Bhai’s alleged conduct alone, without ownership and control of the property, did not create dependency or reliance imposing a duty on him to protect decedent from third party criminal conduct.  Therefore, Plaintiff has failed to allege a special relationship.


            While Plaintiff’s opposition appears to stand only on the presence of a special relationship to impose a duty upon Bhai, to the extent that Plaintiff contends she has alleged Bhai’s misfeasance, the court finds the allegations still fall short.


            “A legal duty may arise from affirmative acts ‘where the defendant, through his or her own action (misfeasance) has made the plaintiff's position worse and has created a foreseeable risk of harm from the third person. In such cases the question of duty is governed by the standards of ordinary care.’ [Citations.]”  (Melton v. Boustred, supra, 183 Cal.App.4th 521, 531, citations omitted.)


            In Melton v. Boustred, supra,183 Cal.App.4th 52, the plaintiffs alleged the following:


“[D]efendant's use of MySpace to promote his party ‘constituted an unlimited, unrestricted and widely broadcast party invitation to the general public to converge at defendants [sic ] property.’ They further allege that the party ‘was known to include music and alcohol consumption.’ Plaintiffs assert that defendant ‘knew, and in the exercise of reasonable care should have known, that to do so would expose plaintiffs and other guests to an unreasonable risk of bodily harm arising from: (1) an unregulated publicly advertised event involving the consumption of alcohol, dancing, live music, and DJ services; (2) without restriction on the number or identity of persons attending; and (3) with no attempt to control admission or provide security or protection for attendees.’ They further assert that defendant ‘knew, and should have known, that such actions were highly likely and substantially certain to attract gang members to defendants' property, to attract violent youths to defendants’ property, to create a dangerous condition on defendants' property, and to result in injuries to persons attending the party and others.’ ”


“In their opening brief on appeal, plaintiffs argue that defendant owed them a duty of care ‘not to actively create an out-of-control and dangerous public MySpace party’ at his residence. Plaintiffs characterize defendant’s unrestricted MySpace invitation as ‘active conduct of a property owner’ that can give rise to tort liability for the third party criminal assault against them.”


(Id. at pp. 532–33.)


            The Melton court found:  “Under the facts alleged here, we conclude defendant did not engage in any active conduct that increased the risk of harm to plaintiffs. As a starting point, we accept as true plaintiffs’ factual allegation that that defendant issued ‘an unlimited, unrestricted and widely broadcast’ invitation to a party at his home, which was ‘to include music and alcohol consumption.’ As we now explain, however, defendant's conduct in issuing that invitation did not create the peril that harmed plaintiffs.” (Melton v. Boustred, supra,183 Cal.App.4th 521, 533.) 


            The Melton court reasoned that, “[t]he violence that harmed plaintiffs here was not ‘a necessary component’ of defendant’s MySpace party. (Sakiyama, supra, 110 Cal.App.4th at p. 408, 1 Cal.Rptr.3d 762.) Moreover, in our case, defendant took no action to stimulate the criminal conduct. (Compare Weirum, supra, 15 Cal.3d at p. 48, 123 Cal.Rptr. 468, 539 P.2d 36 [the ‘contest was no commonplace invitation’ but instead ‘was a competitive scramble in which the thrill of the chase to be the one and only victor was intensified by the live broadcasts’].) Here, defendant merely invited people—including unknown individuals—to attend a party at his house. To paraphrase Sakiyama: ‘To impose ordinary negligence liability on [a property owner who] has done nothing more than allow [his home] to be used for [a] party ... would expand the concept of duty far beyond any current models.’ (Sakiyama, at p. 406, 1 Cal.Rptr.3d 762.)” (Melton v. Boustred, supra,183 Cal.App.4th 521, 535.)


            As an initial matter, unlike in Melton, or the other cases cited by Plaintiff, Bhai was not the proprietor of a business hosting the party or the owner of the home where the party occurred.  Bhai is merely alleged to be the friend of the host’s cousin and to have attended the party where he “nominated himself to act as ‘bouncer’ and ‘doorman’.” (FAC, ¶ 22.) 


            As to Bhai’s conduct, Plaintiff alleges Bhai (among others) invited known gang members, allowed and encouraged the consumption of drugs and alcohol, did not intervene when partygoers got into verbal and physical altercations with other guests, and joined in a fight outside with gang members who had been ejected from the party.  There are no factual allegations supporting the conclusion that the shooting violence was a “necessary component” of the party.  Nor are there any allegations that Bhai supplied the drugs or alcohol, or that he encouraged the Defendant gang members to arm themselves and shoot party goers.


            Even assuming Bhai acted as alleged, this conduct is not misfeasance.  Rather, Bhai’s conduct appears unfortunately to be typical of rowdy young adult party-goers in modern society.  Accordingly, Plaintiff has failed to allege facts supporting a finding that Bhai owed a legal duty to decedent.


            Defendant’s unopposed request for judicial notice is granted and the demurrer is sustained without leave to amend.


            Defendant Bhai shall draft an order consistent with this ruling.


            The court appreciates the effort expended by the Demurrer Facilitator, Michael P. Merrill, Esq.



6.         SCV-260710, Dejong v. Nationstar Mortgage, LLC


            CONTINUED to Wed., July 12, 2017, 3:00 p.m. pursuant to stipulation and order filed June 20.



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