Oct 22, 2014




WEDNESDAY, OCTOBER 22, 2014, 3:30 P.M.

Courtroom 18 –Honorable Nancy Shaffer

3055 Cleveland Avenue, Santa Rosa


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 will need to contact the Judicial Assistant by telephone at (707) 521-6729 by 4:00 p.m. today, Tuesday, October 21, 2014.  Any party requesting an appearance must notify all other opposing parties of their intent to appear.  Parties in small claims cases and motions for claims of exemption are exempt from this requirement.


CourtCall is available for all Law and Motion appearances, EXCEPT parties in small claims cases and motions for claims of exemption which are mandatory appearances.  CourtCall can be reached directly at (888) 882-6878.



1. SCV-244728; Luther Burbank Savings v. 620 Third Street, et al.   

Plaintiffs/Cross-complainants Paul and Kathleen Thompson (“Plaintiffs”) move for summary adjudication against defendant/cross-defendant TD Service Company (“TD”) that TD owed Luther Burbank Savings (“LBS”) the duty to announce a bid of only $1,767,000 on behalf of LBS at the December 16, 2009, trustee’s sale; that defendant owes LBS, and its assigns, the duty to indemnify them for all damages, losses, etc., caused by TD’s false credit bid and failure to read LBS’s instructions prior to the trustee’s sale.

First, TD opposed the motion on procedural grounds, as untimely. However, as the trial was recently continued to November 21, 2014, the motion is timely and will be heard more than thirty days prior to the trial.  (See CCP § 437c(a))  The granting of a continuance of the trial date or the hearing date may cure an objection based on lack of  notice or violation of the 30-day rule.  (See, Soderberg v. McKinney (1996) 44 Cal.App.4th 1760, 1765, fn. 4; see also, Lackner v. North (2006) 135 Cal.App.4th 188, 2109 .)  Here, the trial was continued to accommodate the schedule of TD’s new counsel.  The hearing will be heard more than thirty days before the continued trial date.

The motion is granted with respect to TD’s duty to announce the bid amount given to it by LBS. Normal and customary contractual performance obligations are “duties” under Code Civ. Proc., § 437c, subd. (f), and the existence and scope of a duty under § 437c, subd. (f), is a question of law for the court. (Linden Partners v. Wilshire Linden Associates (1998) 62 Cal.App.4th 508, 518-519.) Plaintiffs have established that TD contracted with LBS and that pursuant to the agreement LBS instructed TD to announce a bid of $1,767,000.00 on behalf of LBS at the December 16, 2009, trustee’s sale. (UMF, Nos. 1-5.) Therefore, TD had a duty to announce a bid of $1,767,000.00.

The motion is denied with respect to TD’s duty to communicate that its employee did not open the electronic document containing LBS’s bid amount. Plaintiffs’ authority does not establish that TD had a duty to disclose a mistake it did not know occurred until after the trustee’s sale, as there is no showing that this mistake is either a) material (no showing of the materiality of disclosing why the bid was not announced as requested) or b) that this unforeseeable mistake would have affected the judgment of the principal (LBS) in giving its consent to enter into this particular transaction with TD.

The motion is granted with respect to TD’s duty to indemnify LBS’s assigns for any damages and reasonable attorney fees caused by TD’s breach of the Agreement between LBS and TD.

Here, the service agreement between TD and LBS states that TD “agrees to defend, indemnify and hold [LBS] and its employees, officers, directors, agents, partners, affiliates, successors and assigns harmless from and against any and all claims, liabilities, damages, demands, suits, actions, judgments, losses and reasonable attorney’s fees which [LBS] may incur, to the extent caused by [TD’s] breach of this Agreement or by the negligence or willful misconduct of [TD], its agents or subcontractors.” (Exhibit A, ¶ 4, Ex. E.)

Pursuant to the Agreement, LBS instructed TD to announce a bid of $1,767,000.00. (UMF No. 3.) TD announced a bid of $4,476,028.46. (UMF No. 5.) Thus, TD breached the agreement and must indemnify LBS, and Plaintiffs as the assignees of LBS, for any losses and reasonable attorney fees caused by the breach.

Plaintiffs are to submit a written order consistent with this ruling.

2. SCV-248197; Khuwaja v. Ali, et al.

Cross-defendant Fatma Khuwaja demurrers to the cross-complaint of defendant Ashraf Hussain Ali, which was filed on April 3, 2014, on the grounds that it fails to state facts sufficient to constitute a cause of action.  The documents subject to judicial notice show that Fatma Khuwaja was not a party to the written partnership agreement.  (Complaint, EXs. A, B.) Therefore, there can be no cause of action against her to dissolve that partnership.  Additionally, there are no facts demonstrating the formation of a confidential relationship between cross-defendant Khuwaja and cross-complainant  Ali.  The cross-complaint alleges that Fatma Khuwaja was a “silent and unknown partner” of Ali (XC., ¶ 9).  These allegations are insufficient to support a cause of action for breach of a fiduciary duty by Khuwaja. (See Richard B. LeVine, Inc. v. Higashi (2005) 131 Cal.App.4th 566, 586 [A fiduciary relationship is created where a person reposes trust and confidence in another and the person in whom such confidence is reposed obtains control over the other person's affairs.” (emphasis added).  The cross-complaint does not allege facts sufficient to explain how it was that cross-defendant allegedly reposed trust and confidence in someone unknown to him.  The demurrer is sustained with leave to amend.

Cross-defendant is to submit a written order consistent with this ruling.

3. SCV-252108; McGuire v. Superior Court of Sonoma County

This motion was continued to January 14, 2015 by stipulation of the parties.

4. SCV-253901; Christensen v. Archer, et al.  

Matter dropped from calendar. Issues resolved through Discovery Facilitator Program.

5. SCV-254074; Badger Assets, LLC v. O’Brien, et al.  

Plaintiff Badger Assets, LLC, moves for judgment on the pleadings.

The last remaining defendant is Fort Sutter Company. The only remaining cause of action is for quiet title. A complaint alleging a cause of action for quiet title must be verified and requires: 1) a description of the property; 2) plaintiff's title or interest and the basis; 3) defendant’s assertion of an adverse claim or antagonistic property interest; 4) the date as of which the determination is sought; and 5) a prayer for the determination of title. (CCP §761.020.) The complaint meets these requirements. (C., ¶¶ 18, 19, 22, EXs. A, C.)

On September 30, 2013, defendant Fort Sutter Company filed a Disclaimer of Interest which states that it disclaims any interest or estate in the property described in Ex. A of the complaint and “any right to exclusive uses that would restrict the use of the Property described in Exhibit A except as provided by the recorded documents noted in item 9 of Exhibit C…”. (RJN, Ex. B.)

Accordingly, the complaint states facts sufficient to constitute a cause of action against the defendant and “the answer does not state facts sufficient to constitute a defense to the complaint.” (CCP § 438(c).) Therefore, the motion is granted.

Plaintiff is to submit a written order consistent with this ruling.

6. SCV-255513; People of the State of California v. Paul Hobbs Winery, et al.

Appearances required.

7. SPR-76161; In Re Matter of Theresa Louvar Trust

At the request of the parties, the motions on calendar for October 22, 2014 were continued to January 21, 2015 at 3:30 p.m. in Dept. 18.


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