Aug 23, 2017



Wednesday, August 23, 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, August 22, 2017.  Parties in small claims cases and motions for claims of exemption are exempt from this requirement.


PLEASE NOTE:  The court no longer provides Court Reporters for motion hearings.  If they wish, the parties may confer and arrange for one of the parties to bring a privately retained Certified Shorthand Reporter to serve in the matter.



1.         SCV-245738, Liebling v. Goodrich


            Appearances are required.



2.         SCV-256588, Chavez v. Silver


            The motion opposing good faith settlement brought by Renaissance Housing Communities, LLC, NVP-4050, LLC, RHC-4050, LLC, David Silver and Jaime Clifford (“RHC Defendants”) is denied, and Tadgh P. McSweeney and Kathleen Wood’s application for approval of good faith settlement is granted.


            The parties’ unopposed requests for judicial notice of court orders and filings are granted.


            The RHC Defendants’ evidentiary objections to the Sussman and Wood declarations are overruled as to Nos. 2-4 and 9, and sustained as to the rest.


            In this landlord-tenant action, the RHC Defendants settled with the tenant Plaintiffs and agreed to pay them $950,000.  All the parties to the action stipulated to that settlement agreement being in good faith.


            A month or so later, McSweeney and Wood (and the property management Defendants employed by them) settled with Plaintiffs for $1,750,000.  McSweeney and Wood filed an application for approval of good faith settlement, which the RHC Defendants now contest.  There is no pending claim for indemnity against the property management Defendants, which is presumably why they did not join in the good faith application.  Apart from the total settlement sums, the terms of the RHC Defendants’ and McSweeney and Wood’s settlement agreements are essentially identical.  Neither of the agreements allocates the settlement amounts among the settling parties.


            McSweeney and Wood (and the property management Defendants) are funding 65% of the settlement with Plaintiffs and the RHC Defendants are funding 35% of the settlement.  The RHC Defendants focus on their relatively limited liability for Plaintiffs’ habitability claims in arguing the settlement amount is disproportionate to liability.  The RHC Defendants contend they purchased the property mere months before this action was filed and that the habitability issues spanned years before then.  But, as argued by McSweeney and Wood, the extent of the habitability claims against them are limited by the statute of limitations.  Furthermore, the RHC Defendants’ argument fails to adequately account for the Plaintiffs’ retaliation claims against them, along with $2,000,000 in attorney’s fees, general damages, and punitive damages for which the RHC Defendants were potentially liable.  The RHC Defendants’ insurance capped coverage for attorney fees at $100,000.  Per Plaintiffs’ counsel, the amount Plaintiffs agreed to accept in settlement from the RHC Defendants was a reflection of the RHC Defendants’ limited insurance coverage and Plaintiffs’ concerns with collecting an uninsured judgment against the RHC Defendants.  (Sussman Decl., ¶ 11.) 


            The RHC Defendants also take issue with McSweeney and Wood’s failure to specifically show how the settlement monies are allocated between McSweeney and Wood and the property management Defendants.  In relation to liability for Plaintiffs’ claims, McSweeney and Wood and the property management Defendants are similarly situated, and the property management Defendants are named as additional insureds under McSweeney and Wood’s policy.  Furthermore, allocations and an analysis of the allocations are unnecessary in this circumstance where the RHC Defendants settled first, are completely released by Plaintiffs and have no residual indemnity obligation to McSweeney and Wood. “‘The statutory requirement of good faith extends not only to the amount of the overall settlement but as well to any allocation which operates to exclude any portion of the settlement from the setoff.  [Citations.]’  [Citation.]”  (Regan Roofing Co. v. Superior Court (1994) 21 Cal.App.4th 1685, 1701.)  “To test the good faith of these allocations which operate to exclude a portion of the settlement from the setoff available to individual nonsettling defendants, the overall inquiry is whether the settlement is ‘grossly disproportionate to the settlor's fair share’ and thus not subject to approval by the court.”  (Id. at p. 1702, underlining added.) 


            The court finds that the RHC Defendants are underestimating their liability in this action and have failed to demonstrate how knowing the allocation of the settlement is necessary to determination of good faith under the circumstances here.


            Based on the foregoing, the court finds the settlement is “well within the ballpark” and consistent with the objectives of Code of Civil Procedure section 877.6. (Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499-500.)


            McSweeney and Wood shall submit an order consistent with this ruling.



3.         SCV-256891, Atwell v. City of Rohnert Park


            Petitioners’ motion to strike and/or tax costs is denied in part and granted in part.


            Petitioners’ filed a petition for writ of mandate and complaint for declaratory and injunctive relief pursuant to Code of Civil Procedure sections 1085, 1094.5 and 1060 in which they challenged a proposed project’s consistency with respondent City’s general plan.


            The City prevailed in the action and filed a memorandum of costs totaling $96,284.86.  The City’s memorandum of costs primarily reflected the costs, including attorney and paralegal labor, incurred by the City to prepare the Administrative Record (“AR”).


            The costs to prepare the original AR totaled $15,920 in attorney fees and $8,115.37 for copying.  However, Petitioners were not satisfied with the contents of the original record so they submitted a broad Public Records Act request to the City seeking documents from custodians, including outside consultants, spanning a six-year period.  Because of the volume and format of the electronic records collected, the City utilized its retained attorneys, an e-discovery paralegal and an e-discovery platform called Relativity to review the records for privilege and responsiveness.  Ultimately, Petitioners selected just 107 pages to be included in the supplemental AR out of the thousands of pages the City collected and produced in response to the Public Records Act request.  Notably, Petitioners never cited to the supplemental AR in their briefing in the case.


            After the City finished preparing the supplemental AR, Petitioners asked for an estimate of the costs incurred by the City.  The City’s estimate of $20,000 did not include attorney labor costs.  However, the City reserved its right to request via a memorandum of costs all reasonable costs it incurred to prepare the original and supplement AR.


            Petitioners now move to tax all but the $8,772.36 in copying/scanning costs associated with the preparation of the original and supplemental AR.  Per Petitioners, the balance of the preparation costs was not necessary and reasonable and the bulk of those costs were incurred in responding to Petitioners’ Public Records Act request. Petitioners assert attorney fees are not recoverable under the Act and imposing them here would chill access to public records.  Petitioners also argue the $495 in filing and motions fees should be stricken since the City was exempt from paying those fees in the first place.


            “The costs to prepare the administrative record for an administrative mandamus action are recoverable” and may include attorney and paralegal labor. (Otay Ranch, L.P. v. County of San Diego (2014) 230 Cal.App.4th 60, 67.)  In Otay, “[g]iven the technical complexity of the documents, the scope of the record and the manner in which the documents were maintained, the attorney hired by the County was the only person who understood the interplay of the various versions of the documents as well as which documents should be included in the administrative record and which should not.” (Id. at p. 65.)


            “Although Otay Ranch is a CEQA action, the rationale for the recovery of attorney labor costs is equally applicable to the present case…the labor costs for attorneys and paralegals should be considered the same as other labor costs incurred to create the administrative record.”  (No Toxic Air, Inc. v. Lehigh Southwest Cement Company (2016) 1 Cal.App.5th 1136, 1141–42.)


Filing and Motion Fees


            In the reply, Petitioners withdraw their request to tax $495 in filing and motion fees.


Public Records Act Does Not Shield Petitioners


            The court finds Petitioners’ use of a Public Records Act request to obtain additional documents to augment the record does not shield Petitioners from the costs of that production.  (St. Vincent's School for Boys, Catholic charities CYO v. City of San Rafael (2008) 161 Cal.App.4th 989, 1019, fn. 9.) 


            Petitioners argue St. Vincent’s is a narrow holding which lacks relevance to this case.  However, the St. Vincent’s Court expressly rejected St. Vincent’s attempt to avoid its responsibility to restrain costs by seeking to augment the record through a Public Records Act request.  Petitioners have failed to explain how the same reasoning should not apply under the circumstances here, which involve a remarkably similar history of record preparation.  (See St. Vincent's School for Boys, Catholic Charities CYO v. City of San Rafael, supra,161 Cal.App.4th 989, 1017–19.)


Necessity and Reasonableness of Challenged Costs to Original AR


            The City has failed to demonstrate that attorney labor was required to prepare the original AR.


            There is an insufficient basis for concluding that compilation of the original AR was so complicated and/or time-consuming as to be beyond the City’s in-house resources.  Counsel for the City provides only a conclusory statement as to the necessity for approximately 38 hours in attorney labor in relation to preparation of the record.  (See Muscolino Decl., ¶ 3.)  From the evidence, the court cannot determine whether that the use of retained counsel was a true necessity and a reasonable expenditure.


            Accordingly, the motion to tax costs is granted as to the $15,920 in attorney labor in relation to the original AR.


Necessity and Reasonableness of Challenged Costs to Supplemental AR


            The court finds attorney and paralegal labor, as well as the costs associated with the e-discovery platform, Relativity, were necessary for assembly of the supplemental AR.  However, the court finds reduction of the hourly rates is required to ensure reasonableness of the labor costs.


            Petitioners’ Public Records Act request was very broad and sought communications that were not before the Planning Commission or City Council when the project was reviewed.  This greatly complicated the process for the City by requiring coordination with the various outside consultants and review and management of nearly 60,000 potentially responsive and privileged documents.  (See Muscolino Decl., ¶¶ 10-14.)  Active attorney involvement to oversee preparation of the record as well as attorney labor to review documents and make privilege and Public Records Act exemption determinations appears necessary under the circumstances.  Additionally, the help of an e-discovery paralegal was necessary to fully utilize Relativity and otherwise assist in capturing responsive documents.


            The City did not specifically address the reasonableness of the hourly rates charged by its attorneys and paralegals.  Based on the court’s experience and its knowledge of this case as well as hourly rates for legal work in this community, the court finds a reasonable hourly rate for the 185 hours of attorney time expended on the tasks identified is $250 per hour across the board.  The court finds a reasonable hourly rate for the 88.5 hours of paralegal time is $100 per hour, and that the $3,411.50 in costs incurred for Relativity is reasonable.


            In sum, the court finds the necessary and reasonable costs related to the supplemental AR total $58,511.50.  This results in a total of $67,778.86 in allowable costs.


            The City shall submit an order consistent with this ruling.



4.         SCV-260030, Devcon Construction, Inc. v. Team Ghilotti, Inc.


            Defendant Team Ghilotti, Inc.’s motion to compel production is granted.


            Team Ghilotti, Inc. (“Team Ghilotti”) seeks production of documents in response to a deposition for business records served on third party Ghilotti Construction Company (“GCC”).  Team Ghilotti bid on a project for Plaintiff Devcon Construction Inc. (“Devcon”) based in part on Devcon’s representation of the amount of dirt to be moved.  Devcon allegedly fraudulently underrepresented the amount of dirt to be moved. Devcon claims it based the amount on what it had been told earlier by GCC.  Team Ghilotti argues GCC’s communications/records regarding the project are therefore relevant to this action.   


            GCC objected to the requests on the grounds that they require production of documents constituting a GCC trade secret, and the requests are unduly burdensome and expensive.  According to GCC, Team Ghilotti can just as easily obtain the documents through discovery with Plaintiff Devcon Construction, Inc.


            The parties attempted to meet and confer and apparently almost resolved their disputes after continuing the hearing on this motion to do so.  Team Ghilotti had agreed to narrow its request and a protective order was being negotiated.  GCC filed a “meet and confer” declaration in lieu of an opposition.  Per GCC, all documents were being produced, the protective order was in the works and the motion would likely be dropped from calendar.  Per Team Ghilotti’s reply brief, though, GCC had failed to follow through with production of the documents or a protective order.  Accordingly, Team Ghilotti seeks an order granting their motion and ordering $5,170 in sanctions.


            Since the requests are clearly relevant, and GCC has failed to file substantive opposition providing evidence to support its trade secret and unduly burdensome objections, the court grants the motion.  The court orders GCC to produce responsive documents and to pay Team Ghilotti sanctions in the amount of $2,750 within 20 days of notice of entry of the order.


            Team Ghilotti, Inc. shall submit an order consistent with this ruling.



5.         SCV-261060, Pope v. Summit Pain Alliance, Inc.


            Plaintiff’s motion for preliminary injunction is denied.


            On July 27, 2017, Plaintiff Jason Pope, M.D. was terminated “for cause” from his position as President, CEO, director, and senior physician at Defendant Summit Pain Alliance, Inc. (“Summit”).  Dr. Pope is also the primary investigator for several on-going research studies at Summit.  Some Summit patients, including Dr. Pope’s patients, are enrolled in those studies.


            Defendants terminated Dr. Pope by emailing him an unsigned letter from Summit’s office administrator.  (Termination Letter, Pope Decl., Ex. B.)  At the time, Dr. Pope was out of the office at a medical conference.  The causes for termination identified by Summit were based on Dr. Pope: (1) demanding that Summit employees forge the signatures of Summit physicians on documents that Dr. Pope used to obtain permission to conduct surgery at a different medical facility; (2) using $50,000 of Summit funds to pay off a personal loan without authorization; and (3) paying inflated management fees to service providers in which Dr. Pope had undisclosed financial and ownership interests.  


            Although Dr. Pope’s employment contract provides for 30-day’s notice of termination for cause and an opportunity to cure any cause within that time, Dr. Pope was terminated immediately.  The letter informed him his access to the company offices had been terminated and that he would be given no opportunity to cure the purported breaches of his employment contract because it would be a futile effort.


            Dr. Pope obtained a temporary restraining order to return him to the status quo ante existing before he was terminated and he now seeks preliminary injunctive relief extending the same and requiring Defendants to comply with the 30-day notice and cure provisions of the employment contract.  According to Dr. Pope’s reply brief, he does not seek injunctive relief extending beyond December 31, 2017 (at the outside) as the employment contract expires by its own terms on that date and he believes this dispute will be resolved by November 1, 2017.


            “In determining whether to issue a preliminary injunction, the trial court considers two factors: (1) the likelihood that the plaintiff will prevail on the merits of its case at trial and (2) the interim harm that the plaintiff is likely to sustain if the injunction is denied as compared to the harm that the defendant is likely to suffer if the court grants a preliminary injunction.  The latter factor involves consideration of such things as the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status quo.  The determination whether to grant a preliminary injunction generally rests in the sound discretion of the trial court.”  (Abrams v. St. John's Hospital & Health Center (1994) 25 Cal.App.4th 628, 635–36.)


            The court finds that Dr. Pope has shown a reasonable probability of prevailing on the merits of his breach of contract cause of action.  While there is conflicting evidence as to the validity of the stated causes for Dr. Pope’s termination, it is undisputed that Dr. Pope was not provided the 30-day’s notice of termination and the opportunity to cure.


            In relation to the irreparable harm prong of the analysis, the court finds for Defendants.  Dr. Pope essentially seeks specific performance of the employment contract.  He argues this will ensure that patient healthcare is maintained, his reputation remains intact and Defendants honor the employment agreement. 


            However, the evidence does not establish that Defendants cannot continue to provide adequate medical care for Summit patients without Dr. Pope.  Based on the declaration of Dr. Michael Yang, the founder of Summit and a senior physician in the practice:


“All of the physicians at Summit are trained in the same sub-specialty, interventional pain management. After completing a four year medical residency, the Summit physicians completed an ACGME (Accreditation Counsel for Graduate Medical Education) accredited fellowship program which lasts an additional year. The entire group of Summit physicians, due to their specialized training and education, can (and do) fill in whenever needed for another Summit physician. (¶5.)


The entire group of Summit physicians, due to their specialized training and education, can fill in whenever needed for another Summit physician. The overwhelming majority of patients are referred from local community primary care physicians, orthopedic surgeons, neurosurgeons, general surgeons, universities and other doctors, to Summit as a clinic, and not to specific doctors. The patients are typically not referred to any specific physician. (¶6.)


Patients of Summit, a pain management clinic with multiple qualified doctors do cover for each other, and patents’ health are not put at risk when a doctor is unavailable. In fact, Dr. Hau, Dr. Yang and Dr. Eric Lee commonly cover for Dr. Pope when he travels or is out of the office. Dr. Pope has been, according to his schedule, out of the office for 43 full days out of 148 work days since the beginning of this year until the end of July, which is 29% of the time that Dr. Pope is clinically not available to patients. Nearly all patients who have been scheduled to see Dr. Pope have been seen by another Summit clinician, at one point or another. (¶7.)”


            While Dr. Pope has what appears to be admirably high standards for patient care, and he disagrees with the idea that he is replaceable at Summit, the court cannot conclude from all the evidence before it that Summit patients will suffer irreparable harm if Dr. Pope does not remain in the practice for another 30 days or until the end of the year.


            Dr. Pope is also the principal investigator (“PI”) for on-going clinical studies at Summit which is an additional responsibility to consider.  Dr. Pope has submitted evidence from three study sponsors.  They opine consistency in their clinical trials could be put at risk by the sudden departure of the PI at the site; that a 60 to 90 day transition period for a PI is preferred; patient safety could be compromised otherwise; and patients could quit the study prematurely.  (See Declarations of Deer, Brounstein and Diaz.)  These sponsors indicate a preference for Dr. Pope and state they will likely terminate their studies at Summit if he is no longer the PI.  While this may not be the ideal situation or outcome for the study sponsors, the court finds that Dr. Yang and Dr. Hau have adequately addressed the concerns from a clinical perspective.  (Yang Decl., ¶¶ 9-20; Hau Decl., ¶¶ 22-26.) The court concludes the loss of Dr. Pope as PI will not cause irreparable harm.


            Dr. Pope has not shown “that an award of monetary damages would not adequately compensate him for any loss of professional status flowing from [defendants’] purported breach of the contract.”  (Barndt v. County of Los Angeles (1989) 211 Cal.App.3d 397, 406.)  “It has long been established that a contract to perform personal services cannot be specifically enforced, regardless of which party seeks enforcement.”  (Id. at p. 403.)  “[T]he common law disfavored specific performance to avoid the friction and social costs that often result when employer and employee are reunited in a relationship that has already failed.  [Citations.]  This rationale is particularly applicable where the services to be rendered require mutual confidence among the parties and involve the exercise of discretionary authority.”  (Id. at p. 404, citations omitted.)


            The cases Dr. Pope relies on to argue otherwise involve doctors losing hospital privileges without due process under the hospital bylaws.  “The nature of a physician's right to practice medicine within a hospital is not merely a personal right; it is a property interest which directly relates to the pursuit of his livelihood.  [Citation.]  Such interest is clearly a fundamental right [Citation].  It is a generally accepted principle that a hospital's refusal to permit a physician to conduct his practice in the hospital, as a practical matter, may well have the effect of denying him the right to capably practice his profession.  [Citation.]”  (Volpicelli v. Jared Sydney Torrance Memorial Hosp. (1980) 109 Cal.App.3d 242, 248, citations omitted.)  “Recent California decisions establish that before a public or private hospital may deny a doctor the right to practice his profession at that hospital, either by termination of existing staff privileges or by the denial of an initial application for such privileges, the hospital must provide a fair procedure which affords the doctor an opportunity to answer the ‘charges’ upon which the exclusion rests.  [Citation.]”  (Id. at p. 249, citation omitted.)  In contrast, this case involves a contractual agreement between Dr. Pope and a corporate medical practice.  Dr. Pope does not contend that he will be unable to practice medicine if the injunction is denied.


            Dr. Pope argues that in the employment contract the parties recognize his services are “special and unique” and “monetary damages in action at law may not provide an adequate remedy in the event of a breach.”  This term appears to primarily address Summit’s remedies in the event of any breach by Dr. Pope.  Regardless, the term does not establish, as a matter of law, that monetary damages are inadequate here. 


            Defendants, for their part, argue they will suffer irreparable harm if injunctive relief is granted.  They provide examples of Dr. Pope’s conduct which they believe has directly and negatively impacted the practice and patients.  (See Dr. Yang’s Declarations.)  They also assert that the impact of Dr. Pope’s continued presence is far-reaching and negative to Summit’s reputation, goodwill and patient care.  Regardless of whether or not Defendants can prove the purported causes of Dr. Pope’s termination, it is clear to the court from the declarations of the parties that a severe rift has occurred in the parties’ working relationships.  As in Abrams v. St. John's Hospital & Health Center, supra, 25 Cal.App.4th 628, 636, the court finds “that [Dr. Pope] and defendant[s] would all suffer harm if the court forced a relationship between the two sides and that [Dr. Pope] would not be irreparably harmed if denied a preliminary injunction because [his] legal remedies are adequate.”


            Accordingly, the court denies the motion for preliminary injunction.


            Defendants shall submit an order consistent with this ruling.



6.         SPR-76161, Matter of Theresa Louvar Trust


            Respondent/Objector Russell Messana’s motion for summary judgment or summary adjudication is denied.


            Respondent’s unopposed request for judicial notice of court documents and orders filed in this action is granted.


            A court trial was held in this case in January 2016.  Respondent prevailed on many claims but was removed as trustee of the Separate Share Trust for Charles J. Messana (“Jody”).  Deborah Wagner was appointed by the court as the successor trustee.  Jody’s separate share trust is his 1/3 share of the Louvar Trust that benefits him.  Trustee Wagner recently petitioned this court for instructions re: administration of the Louvar Trust pursuant to Probate Code section 17200.  She contends Respondent has breached his duty to Jody by failing to keep him reasonably informed of the Louvar Trust and its administration.  The petition alleges various accounting and distribution issues regarding the Louvar Trust, as well as communication problems with Respondent, which impact administration of Jody’s Trust.


            Russell Messana now moves for summary judgment or adjudication of Trustee Wagner’s petition claiming she lacks standing to pursue the petition for instructions on Jody’s behalf; that the Louvar Trust has terminated as a matter of law; and that the petition is barred by res judicata/collateral estoppel because it seeks adjudication of issues already decided by this court.




            The court finds that Wagner, as trustee of Jody’s Trust, is the real party in interest with standing to bring the petition.  As stated in Saks v. Damon Raike & Co. (1992) 7 Cal.App.4th 419, 427:


“In general, the person who has the right to file suit under the substantive law is the real party in interest. (4 Witkin, Cal.Procedure, Pleading, supra, § 103, at p. 138.) At common law, where a cause of action is prosecuted on behalf of an express trust, the trustee is the real party in interest because the trustee has legal title to the cause. (Thorpe v. Story (1937) 10 Cal.2d 104, 114, 73 P.2d 1194; Powers v. Ashton, supra, 45 Cal.App.3d at p. 787, 119 Cal.Rptr. 729; 4 Witkin, Cal.Procedure, Pleading, supra, § 117, at p. 153.) The corollary to this rule is that the beneficiary of a trust generally is not the real party in interest and may not sue in the name of the trust. A trust beneficiary has no legal title or ownership interest in the trust assets; his or her right to sue is ordinarily limited to the enforcement of the trust, according to its terms. (Botsford v. Haskins & Sells (1978) 81 Cal.App.3d 780, 784, 146 Cal.Rptr. 752.) “[B]ecause an ordinary express trust is not an entity separate from its trustees, action may not be maintained in the name of the trust. [Citation.] Thus, absent special circumstances, an action prosecuted for the benefit of a trust estate by a person other than the trustee is not brought in the name of a real party in interest and is demurrable.” (Powers, supra, 45 Cal.App.3d at pp. 787–788, 119 Cal.Rptr. 729.)


Trust Termination


            Respondent argues the Louvar Trust terminated pursuant to Probate Code section 15407(a)(3) because the trust purpose has been fulfilled and all the trust assets were distributed before the instant petition was filed.  Therefore, according to Respondent, Petitioner’s claims fail to the extent they seek court orders directing the Trustee to distribute any trust assets.


            Probate Code section 15407(b) provides: “On termination of the trust, the trustee continues to have the powers reasonably necessary under the circumstances to wind up the affairs of the trust.”  As stated in CEB, CA Trust Administration, §16.49: “The trustee is not immediately relieved of the responsibility to administer trust assets even though the process of distribution has begun. The trustee's duties and powers continue until all the affairs of the trust are completed.  Prob C §15407(b).  Botsford v Haskins (1978) 81 CA3d 780; Restatement (Third) of Trusts §89 (2007).”  And, as reasoned in In re Scrimger's Estate (1922) 188 Cal. 158, 168-69, “[i]t was the duty of trustees to care for the trust estate, even after the trust terminated, where there was a dispute as to the rights of the beneficiaries, until the matter was settled by the court having jurisdiction over the settlement of their final account.”  


            Here, it is unclear whether $3,200 remains in the trust or not.  (See Respondent’s Fact No. 20, citing Respondent’s declaration, ¶ 11.)  Additionally, disputes exist as alleged in the petition for instructions, including issues with the accounting provided after the trial.  (See Petitioner’s Additional Undisputed Material Facts, Nos. 1-5; and Petition for Instructions, Respondent’s RJN, Ex. 1.)  Respondent retains his duty as Trustee of the Louvar Trust to address these issues even if the trust is terminated.  Therefore, the court finds Respondent has failed to demonstrate his affirmative defenses related to trust termination are complete defenses entitling him to summary adjudication.


Res Judicata/Collateral Estoppel


            As to Respondent’s affirmative defense of res judicata/collateral estoppel, the court finds Respondent has failed to establish that Petitioner seeks to relitigate issues already decided at the trial of the previous petition.


            “[T]he rule of res judicata extends only to the facts and conditions as they existed at the time the judgment was rendered, or more correctly speaking, at the time the issues in the first action were made, and to the legal rights and relations of the parties as fixed by the facts determined by that judgment. When other facts or conditions intervene before the second suit, furnishing a new basis for the claims and defenses of the respective parties, the issues are no longer the same and the former judgment cannot be pleaded in bar of the second action.”  (Lord v. Garland (1946) 27 Cal.2d 840, 849.)  Similarly, for collateral estoppel to apply, the issue of the earlier action must be identical to that in which the application is sought.  (Eichler Homes, Inc. v. Anderson (1970) 9 Cal.App.3d 224, 233.)  “If ‘anything is left to conjecture as to what was necessarily involved and decided’ there can be no collateral estoppel.”  (Id. at p. 234.)

Respondent’s argument fails because it is based on the erroneous conclusion that the issues are static.  However, the instant petition alleges on-going acts and omissions – ones which occurred after trial, including an accounting which was not before the court at the time.  For instance, Respondent’s Fact No. 39 states that at the close of trial in January 2016 the court found Respondent’s compensation of $72,000 per year was justified.  However, the petition seeks instructions based on Respondent’s compensation of $108,900 for the period of May 1, 2015 through July 31, 2016. (Petition, ¶ 14.)  


            Based on the foregoing, the motion for summary judgment or adjudication is denied.


            Petitioner shall submit an order consistent with this ruling.



7.         SPR-88825, Estate of Thomas Richard Post


            Appearances are required.  Gregory Post shall bring to the hearing the written accounting of the Reva Post Family Living Trust, which was ordered by the court to have been produced by May 4, 2017.  (See February 8, 2017 Order.)




© 2017 Superior Court of Sonoma County