May 06, 2016

TENTATIVE RULINGS
LAW & MOTION CALENDAR
Wednesday, MAY 4, 2016, 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) 521-6547, and all other opposing parties of your intent to appear by 4:00 p.m. today, Tuesday, MAY 3, 2016.  Parties in small claims cases and motions for claims of exemption are exempt from this requirement.

 

1. SCV-249443; Herman v. Walker

Appearance required.

 

 

2. SCV-255638; Hernandez-Collado v. Amy’s Kitchen

This is on calendar for the Plaintiffs’ motion for preliminary approval of the class action settlement.  The Plaintiffs argue that the settlement, which provides for a $1,500,00 non-reversionary settlement fund is fair in light of the arms-length negotiations which included mediation.  The settlement terms also provide for attorney fees in an amount up to 35%, and $30,000 in costs.  Further, the lead Plaintiffs will receive enhancement awards of up to $10,000 each under the current settlement. 

 

A party to the settlement agreement may bring a noticed motion for preliminary approval.  CRC Rule 3.769(c) states, in full, “[a]ny party to a settlement agreement may serve and file a written notice of motion for preliminary approval of the settlement.  The settlement agreement and proposed notice to class members must be filed with the motion, and the proposed order must be lodged with the motion.”  Preliminary approval is appropriate as long as the proposed settlement falls within the range of possible final approval.  At the preliminary stage, the court considers general settlement terms.  It reviews information on the arms-length nature of the negotiation, any obvious signs of collusion, presence or absence of conflicts within the class, and possible preferential treatment within the class.  The court also determines whether the settlement is likely to be approved at the hearing to be scheduled after notice.

 

The court has reviewed the settlement agreement, the moving papers, and the declarations in support thereof.  The parties estimate that the total class contains 3,026 members.  (See MPA at 5:20; but see Dec. Oliver ¶ 15 [identifying 820 settlement class members]; but also see Dec. Oliver ¶ 16 [identifying 3,026 “putative class members”].) The Plaintiffs estimate that the total claims that would have been presented at trial (absent the instant settlement) would have been approximately $6,000,000.  (See Dec. Oliver ¶¶ 6-10).  Thus, the total settlement value of $1,500,000 is a quarter of the potential claim; however, the amount available to the class, $925,000 ($1,500,000 less attorney fees, costs and enhancement s, is approximately 15% of the claims identified by the Plaintiffs.

 

Standing alone, this settlement would not appear to be in the best interests of the class, and would not appear to be “fair” as that term is used in the class action arena. However, “there is a presumption of fairness when: (1) the settlement is reached through arm's-length bargaining; (2) investigation and discovery are sufficient to allow counsel and the trial court to act intelligently; (3) counsel is experienced in similar litigation; and (4) the percentage of objectors is small.”  Reed v. United Teachers Los Angeles (2012) 208 Cal.App.4th 322.  (See also Chavez v. Netflix, Inc. (2008) 162 Cal.App.4th 43; Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1801.)

 

The court is concerned about the actual net amount of the settlement fund that will be available to the class members given the amount of attorney fees and costs, and the Plaintiffs inability to accurately determine whether there are 3,026 members or 820. (See MPA at 5:20; but see Dec. Oliver ¶ 15 [identifying 820 settlement class members]; but also see Dec. Oliver ¶ 16 [identifying 3,026 “putative class members”].) Furthermore, the declaration in support of the motion is replete with generalized statements regarding the conduct of the case and settlement negotiations that are not particular enough to esbablish proper foundation of the case and the negotiations.  (See e.g. Dec. Oliver ¶ 2.)  The analysis of the damages seems adequate.  (See Dec. Oliver ¶¶ 6-10.)

 

The notice provisions are not adequate.  The notice is five pages long, using arcane, legalistic, and technical language (e.g. “donned or doffed” “putative class members” etc.) that may be beyond the understanding of the settlement class.  Moreover, the Oliver Declaration does not indicate that the notice will be provided in Spanish (although the MPA states that it will be translated).  Further §5 of the notice is misleading, in that it does not provide an estimate of the net settlement proceeds that will be available to the settling class members, nor does it provide the formula for calculation of a possible award—which is also complicated by Plaintiffs’ counsel’s failure to nail down the number of class members.  Also, the notice references Judge Daum, a judge who is not hearing the instant motion.

 

The motion also seeks preliminary approval of $10,000 in enhancement awards.  The motion however provides no evidence that the named Plaintiffs participated at all in the case or the settlement.  The MPA cites to paragraph 12 of the Oliver Declaration as evidence of the named Plaintiffs’ participation, but that paragraph does not address that issue at all.

 

Accordingly, the motion is denied.  The Plaintiffs shall draft an order consistent with this ruling pursuant to CRC Rule 3.1362.

 

 

3. SCV-257264; Meyers v. Drain

Respondent Laurie Meyers as Trustee of the Meyers Family Living Trust’s Motion to Compel Susan Meyers to appear for deposition and for monetary sanctions, and Defendants’ Thomas Drain and Roy Loessins’ joinder in that motion are denied.

 

Defendants Drain and Loessins’ concurrent motion to increase travel limits for taking Susan Meyers’ deposition pursuant to CCP §2025.260 is also denied.

 

Respondent Laurie Meyers’ objections to Eberts’ declaration are sustained. Additionally, Eberts’ late-filed supplemental declaration was considered, but raises no issues the court need consider in resolving these motions.

 

Petitioner/Plaintiff Susan Meyers (“Petitioner”) served a notice of objection to deposition pursuant to CCP §2025.410.  Petitioner’s objection specified she is an Oregon resident and the deposition location in California is outside the range authorized by CCP §2025.250(a). 

 

Thereafter, numerous communications occurred between counsel, but the parties were unable to resolve their differences.  Consequently, Respondent and Defendants now seek orders compelling Petitioner to appear for deposition in Sonoma County pursuant to CCP §2025.260.

 

Respondent and Defendants argue that after the Petitioner served her objection notice, she agreed to be deposed in California and cannot now renege on that agreement.  The court is urged to piece together this purported agreement from numerous email communications between the parties.  However, CCP §2016.030 provides: “Unless the court orders otherwise, the parties may by written stipulation modify the procedures provided by this title for any method of discovery permitted under Section 2019.010.”  Here, there is no such written stipulation and the court declines to find there was any agreement to depose petitioner in California.

 

The court additionally finds Petitioner did not waive her objection to the deposition based on CCP §1989 simply because she did not expressly cite that code section in her objection notice.

 

Turning to the substantive legal issue, this court is persuaded by the reasoning in Toyota Motor Corp. v. Superior Court (2011) 197 Cal.App.4th 1107.  The Toyota Motor Corp. court engaged in extensive analysis, including review of the relevant legislative history and consideration of the contrary opinion in Glass v. Superior Court (1988) 204 Cal.App.3d 1048, before concluding that CCP §1989 prohibits the trial court from compelling a witness residing outside of California to travel to California for deposition.  (Id. at p. 1125.)   Additionally, the court found CCP §2025.260 does not vest the trial court with the discretion to compel a nonresident witness to travel to California for deposition. (Id. at pp. 1113-14.) 

 

Accordingly, Respondent’s and Defendants’ motions and request for monetary sanctions are denied.

 

Petitioner/Plaintiff Susan Meyers is to submit a written order consistent with this ruling. 

 

 

4. SCV-257273; State of Calif v. Moran

Plaintiff’s (“City’s”) motion for modification of preliminary injunction is granted.

 

The City’s request for judicial notice is granted.

 

This action involves the abatement of a public nuisance located at 15904 Healdsburg Avenue in Healdsburg, California.  The City previously obtained a preliminary injunction in relation to the subject property and now moves to modify that injunction pursuant to CCP §533.  No opposition has been filed.

 

CCP §533 provides: “In any action, the court may on notice modify or dissolve an injunction or temporary restraining order upon a showing that there has been a material change in the facts upon which the injunction or temporary restraining order was granted, that the law upon which the injunction or temporary restraining order was granted has changed, or that the ends of justice would be served by the modification or dissolution of the injunction or temporary restraining order.”

 

The City seeks to modify the preliminary injunction to allow it to demolish and remove structures as part of the abatement process.  Upon inspection of the property pursuant to the injunction, the City discovered a material change in facts warranting modification. Specifically, the mobile home, three storage sheds and an animal pen were found to be structurally unsound, unpermitted, unsanitary, dilapidated and unfit for human habitation.  (See Miller Declaration and exhibits thereto.)  The City concluded it would need to repair more than 75% of the dwelling in order to ensure the property does not create further hazards to the community’s health and safety.  (Miller Declaration, ¶13; Cal. Health and Safety Code §17980(c)(1)(C)(2).)  Additionally, the City asserts demolition of the structures on the property will serve the ends of justice by better serving the health and safety of the City and its residents.

 

The court finds the City has met the showing required under CCP §533 and therefore grants the motion to modify the preliminary injunction as requested.

 

The City is to submit a written order consistent with this ruling.

 

 

5. SPR-87643; Matter of Otto G & Arletta M. Altes Family Trust

Respondents’ Motion for Summary Judgment is granted.

 

Respondents’ evidentiary objections to the Declaration of Robert Altes are sustained as to Nos. 1, 4, 8, 9 & 11, and overruled as to the rest.  Respondents’ request for judicial notice is granted.

 

Respondents move for summary judgment on the ground that the entire action is barred by laches, and the statute of limitations, because Petitioner knew or should have known, in the 1990s, about the claims alleged in his petition.  The verified petition includes claims for recovery of trust assets, breach of trust, aiding and abetting, accounting, petition for instructions and elder abuse.

 

“When a defendant moves for summary judgment on the ground there is an affirmative defense to the action, the burden shifts to the plaintiff to show there is one or more triable issues of material fact regarding the defense after the defendant meets the burden of establishing all the elements of the affirmative defense.”  (Jessen v. Mentor Corp. (2008) 158 Cal.App.4th 1480, 1484.)

 

Based on the admissible evidence, allegations in the verified petition, the exhibits attached thereto, and Petitioner’s declaration filed in support of an earlier motion, Petitioner had “knowledge of facts sufficient to make a reasonably prudent person suspicious” by 1998 of the claims he now brings in this action.  (Vega v. Jones, Day, Reavis & Pogue (2004) 121 Cal.App.4th 282, 298.)

 

Specifically, the 1995 and 1996 letters from the predecessor trustee, Wesley Altes (“Wes”) to Petitioner, as well as the hand-written memo detailing trust assets and liabilities demonstrate Petitioner was aware, by 1998, of trust assets and liabilities, including the proposed distribution of those assets and liabilities.  (Petition, ¶27 & Ex. G; Respondents’ Facts, No. 60.)  Petitioner further alleges he knew both his parents were not capable of managing their financial affairs as of 1994.  (Petition, ¶¶11&18, Respondents’ Facts, No.13.)  During that same year, Wes told Petitioner he had “personally ‘changed the Trust.’”  (Petition ¶15, Respondents’ Facts, No. 12.) Additionally, in his declaration filed in support of opposition to an earlier demurrer, Petitioner states he received distribution checks from Wes from rental properties he knew his parents owned during their lives.  (Robert Altes Declaration, attached as Ex. 2 to Beam Declaration, Respondents’ Facts, No. 22.)

 

The above facts are sufficient to demonstrate Petitioner had knowledge of facts sufficient to make a reasonably prudent person suspicious by 1998 of the claims alleged in the petition.  There is no genuine dispute as to these facts and Petitioner has not identified any additional disputed facts in his separate statement.  CCP §437c(b)(3) requires Petitioner’s separate statement to respond to each of the material facts followed by a reference to the supporting evidence.  Petitioner’s declaration is the only supporting evidence, but it does not directly respond to respondents’ facts.

The statute of limitations for all petitioner’s claims, including those to recover trust property under Probate Code §850, begins to run when the trustee “knew or should have known” of the facts underlying those claims.  (CCP §338(d).)  Respondents have therefore established this action is barred by any applicable statute of limitations since this action was not filed until 2015. 

 

Alternatively, Respondents have demonstrated the doctrine of laches applies to bar this action on similar grounds. “‘The defense of laches requires unreasonable delay plus either acquiescence in the act about which Plaintiff complains or prejudice to the Defendant resulting from the delay.’ [Citation.]” (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 68, citation omitted.) “The first element of laches is delay, as measured by the period ‘from when the plaintiff knew (or should have known) of the allegedly infringing conduct.’” (Drake v. Pinkham (2013) 217 Cal.App.4th 400, 407, citation omitted.) 

 

As explained above, Petitioner unreasonably delayed in bringing this action.  His delay was also prejudicial because the causes of action are primarily based on Wes’ conduct, but Petitioner did not file this action until after Wes’ death.  (See Drake v. Pinkham, supra, 217 Cal.App.4th 400, 409.)  Moreover, the undisputed facts demonstrate Petitioner acquiesced in the conduct he now challenges.  As stated above, Petitioner was aware of trust assets and liabilities, and the proposed distribution of those assets in the 1990s. He also accepted distributions for rental properties and reviewed the check book Wes used for the trust (Petitioner’s Declaration, ¶16).  He does not directly dispute these facts, nor does he provide any additional facts demonstrating he did anything but acquiesce in Wes’ actions in relation to the trust.

 

In sum, Petitioner’s action is barred, as a matter of law, under both the statute of limitations and the doctrine of laches.  Respondents’ Motion for Summary Judgment is therefore granted.

 

Respondents are to draft a written order consistent with this ruling.

 

© 2016 Superior Court of Sonoma County