Oct 01, 2016

TENTATIVE RULINGS
LAW & MOTION CALENDAR
WEDNESDAY, SEPTEMBER 28, 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, September 27, 2016.  Parties in small claims cases and motions for claims of exemption are exempt from this requirement.

1. MCV-204623; Citibank v. Staub

Appearances required.

 

 

2. SCV-256030; Tic Westwind v. Core Realty

 DROPPED from calendar at the request of counsel for moving party.

 

 

3. SCV-257264; Meyers v. Drain

This case is on calendar for two motions.  First, Defendants Thomas A. Drain and Roy W. Loessin (“Defendants”) move to expunge a notice of pendency of action recorded on June 22, 2015 by Petitioner, Susan Meyers (“Susan”) against Defendants’ property, located at 615 B. St. in Santa Rosa, California.  Defendants make this motion pursuant to Code of Civil Procedure section 405.30, et seq. and primarily on the ground that Susan has failed to demonstrate the “probable validity” of a real property claim, as required by the Code.  Defendants also request an award of attorney’s fees and costs for the motion under section 405.38.  The second motion at issue is Respondent Laurie Meyers’ (“Laurie”) motion for an award of sanctions against Susan and her attorneys of record pursuant to Code of Civil Procedure section 128.7 and on the grounds that both of Susan’s actions are frivolous and without merit.  Susan opposes the motions.    

 

1.    Defendants’ Motion to Expunge Lis Pendens; Request for Attorney’s Fees

 

Defendants’ Request for Judicial Notice and Supplemental Request for Judicial Notice filed in support of their motion are granted.  Susan’s Request for Judicial Notice in opposition to the motion is granted.  Defendants’ motion is granted.

 

The Code of Civil Procedure states that “[a]t any time after notice of pendency of action has been recorded, any party, or any nonparty with an interest in the real property affected thereby, may apply to the court in which the action is pending to expunge the notice.”  (Code Civ. Proc. §405.30.)  Although Defendants rely primarily on section 405.32 for their motion, the Court finds that relief is also warranted under section 405.31. 

 

Under Code of Civil Procedure section 405.31, “the court shall order the notice [of pendency of action] expunged if the court finds that the pleading on which the notice is based does not contain a real property claim.”  (Code Civ. Proc. §405.31.)  In relevant part, the Code defines a “real property claim” as a cause of action in a pleading “which would, if meritorious, affect…title to, or the right to possession of, specific real property…”  (Code Civ. Proc. §405.4.)  “[T]he claimant who has recorded the lis pendens has the burden of proof to establish that the pleading on which the action is based alleges a real property claim.”  (Miller and Starr (4th ed.) 4 Cal. Real Est. § 10:154.)  “The issue is decided solely by analysis of the pleadings without the admission of extrinsic evidence because the lis pendens is expunged if the court finds that ‘the pleading’ does not set forth a real property claim.”  (Ibid; see also, Kirkeby v. Superior Court (2004) 33 Cal.4th 642, 650-651.)  This demurrer-like analysis should occur without the taking of evidence, other than possibly such evidence which may be judicially noticed as on a demurrer, and the evidentiary merit of the claim is entirely irrelevant.  (See, Park 100 Inv. Group II v. Ryan (2009) 180 Cal.App.4th 795, 808.) 

 

“If the court finds that the pleading on which the notice of pendency of action is based does not contain a real property claim, the lis pendens must be ordered expunged and no undertaking may be required as a condition to expungement on this ground.”  (Miller and Starr, 4 Cal. Real Est. § 10:154 (4th ed.).)

 

In this case, Susan has failed to demonstrate that any pleading in this case, in its current form, contains a viable “real property” claim upon which her Notice of Pendency of Action can reasonably be based.  Indeed, based on this Court’s August 12, 2016 Order which granted Laurie’s motion for judgment on the pleadings as to Susan’s entire quiet title action and the first three causes of action in her trust petition, without leave to amend, the only causes of action that remain are for removal of Laurie as co-trustee of the B Trust and for money damages for breach of trust.  Neither of these causes of action can reasonably be considered a “real property claim” that could “affect…title to, or the right to possession of, specific real property.”  Therefore, Defendants’ motion to expunge the lis pendens is granted pursuant to section 405.31.

 

Additionally, under section 405.32, “the court shall order that the notice [of pendency of action] be expunged if the court finds that the Claimant has not established by a preponderance of the evidence the probable validity of the real property claim.”  (Code Civ. Proc. §405.32.)  When expungement is sought under this provision, the claimant who filed the lis pendens has the burden of proof of showing by a preponderance of the evidence the “probable validity” of their real property claim.  (Code Civ. Proc. §§405.30 and 405.32.)  The resolution of this issue, unlike the “failure to plead” grounds for expungement in section 405.31, requires the court to examine the factual merits of the claim and the court may allow the parties to conduct discovery, offer written evidence or declarations, and the court may permit oral testimony.  (Miller and Starr (4th ed.) 4 Cal. Real Est. § 10:154.)  “It is not sufficient for the Claimant merely to make a prima facie showing of probable validity; the demonstration of ‘probable validity’ requires a determination that it is more likely than not that the Claimant will obtain a judgment against the Defendant on the claim.”  (Ibid.)  The court is required to weigh the evidence and make a preliminary determination based on the evidence submitted, of whether it is more probable than not, that the claimant will prevail on its real property claim.  (Mix v. Superior Court (2004) 124 Cal.App.4th 987, 995-995.)

 

Here, Susan again fails to meet her burden of demonstrating, by a preponderance of the evidence, the “probable validity” of any real property claim.  To start, and as explained above, based on the Court’s August 12, 2016 order granting Laurie’s motion for judgment on the pleadings, without leave to amend, the Court finds that there are no causes of action remaining in this case that include a “real property claim” and therefore, Susan has not and cannot demonstrate the “probably validity” of such a claim.  Indeed, the Court granted Laurie’s motion for judgment on the pleadings, without leave to amend, expressly because these claims, on their face, were not valid.  Furthermore, in her opposition to this motion, Susan fails to present any new or different evidence to establish the substantive merits of her claims and instead, merely restates the same arguments made in opposition to Laurie’s motion for judgment on the pleadings – arguments which this Court previously rejected. 

 

Accordingly, the Court finds that Susan has failed to meet her burden and demonstrate the “probable validity” of any viable “real property” claim in this case.  Therefore, Defendants’ motion is also granted under section 405.32.

 

Finally, Code of Civil Procedure section 405.38 provides that the trial court “shall” make an award of attorney fees and costs to the party prevailing on a motion to expunge a lis pendens “unless the court finds that the other party acted with substantial justification or that other circumstances make the imposition of attorney’s fees and costs unjust.”  (Code Civ. Proc. §405.38; see also, Castro v. Superior Court (2004) 116 Cal.App.4th 1010, 1018.)  Here, the Court finds that Susan has not acted with substantial justification and the circumstances of this case do not make the imposition of attorney’s fees and costs unjust, in particular because Susan failed to voluntarily expunge the lis pendens following this Court’s ruling on the motion for judgment on the pleadings.  As a result, Susan left Defendants no choice but to file this motion and incur the attorney’s fees and costs for doing so.  Accordingly, Defendants’ request for sanctions is granted and counsel for Defendants shall file an updated declaration to the Court regarding the fees and costs incurred to pursue this motion. 

 

Defendants’ counsel shall also submit a written order to the Court consistent with this tentative ruling and in compliance with Rule of Court 3.1312.

 

2.    Laurie’s Motion for Sanctions Under Code of Civil Procedure Section 128.7

 

“Under Code of Civil Procedure section 128.7, a court may impose sanctions for filing a pleading if the court concludes the pleading was filed for an improper purpose or was indisputably without merit, either legally or factually.”  (Peake v. Underwood (2014) 227 Cal.App.4th 428, 440.)  “A claim is factually frivolous if it is not well grounded in fact and it is legally frivolous if it is not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.”  (Ibid.)  “In either case, to obtain sanctions, the moving party must show the party’s conduct in asserting the claim was objectively unreasonable.”  (Ibid.)  “A claim is objectively unreasonable if ‘any reasonable attorney would agree that [it] is totally and completely without merit.’” (Ibid, quoting In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) 

 

However, Code of Civil Procedure section 128.7 “must not be construed so as to conflict with the primary duty of an attorney to represent his or her client zealously” and “[f]orceful representation often requires that an attorney attempt to read a case or an agreement in an innovative though sensible way.”  (Guillemin v. Stein (2002) 104 Cal.App.4th 156, 167-168.)  Because “[o]ur law is constantly evolving…effective representation sometimes compels attorneys to take the lead in that evolution.”  (Ibid.) 

 

In this case, the Court finds that Laurie has failed to meet her burden to demonstrate that Susan’s claims, either the trust action or the quiet title action, were filed for an improper purpose or were indisputably and objectively unreasonable and without any legal or factual merit.  Accordingly, Laurie’s motion for sanctions under section 128.7 is denied.   

 

Susan’s counsel shall submit a written order to the Court consistent with this ruling and in compliance with Rule of Court 3.1312.

 

 

4. SCV-258343; Mendocino Wine v. Hurst

This case is on calendar for two motions.  First, Plaintiff Mendocino Wine Group, LLC (“Plaintiff”) moves for a protective order to postpose all depositions in this case until the Court rules on Plaintiff’s motion to consolidate, which is set to be heard in a related case, Case No. SCV-257358, on November 30, 2016 in Department 17.  Second, Plaintiff moves to vacate the trial date in this case pending a ruling on its motion to consolidate.  Defendants Philip L. Hurst (“Hurst”) and H.D.D., LLC (“HDD”), collectively (“Defendants”) oppose both motions.

 

As an initial matter, it appears that Plaintiff’s motions were never officially filed with the Court because the Clerk mistakenly returned the motions and filing fee to Plaintiff on September 13, 2016.  Accordingly, Plaintiff shall file his motions, including all supporting papers, nunc pro tunc, prior to the hearing on these motions.       

 

1.    Plaintiff’s Motion for a Protective Order to Postpose Depositions

 

Plaintiff’s motion for a protective order to postpone all depositions in this action until the Court in Department 17 rules on Plaintiff’s motion to consolidate is denied.

 

The Code of Civil Procedure provides that for “good cause shown,” the Court may “make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.”  (Code Civ. Proc. §2025.420(a)-(b).)  “[T]he burden is on the party seeking the protective order to show good cause for whatever order is sought.”  (Nativi v. Deutsche Bank Nat’l Trust Co. (2014) 223 Cal.App.4th 261, 317, citing Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)  In determining whether the moving party has established “good cause,” the trial court should balance the competing needs and interests of parties affected.  (Ibid.) 

 

In its motion, Plaintiff argues that Defendants have noticed the depositions of Plaintiff’s principals and Plaintiff anticipates that both depositions will last several days; will require substantial time; and Plaintiff will incur significant costs to prepare for and attend the depositions.  Plaintiff argues that if the two cases are consolidated, the requested protective order will eliminate the necessity for these time consuming and costly depositions to be taken twice.  Thus, Plaintiff contends that the protective order is warranted under section 20205.420 to avoid undue burden and expense.   

 

In their opposition, Defendants argue that Plaintiff’s motion is simply a delaying tactic based on Plaintiff’s failure to diligently pursue this action and prepare for the January 27, 2017 trial date.  Defendants argue that HDD is an operating LLC of a publicly traded company which must disclose this ongoing litigation to its shareholders and potential investors.  Defendants contend that any unnecessary delay to this case will unjustly reward Plaintiff for its failure to diligently pursue the action and will unfairly prejudice Defendants by requiring the continued disclosure of this pending litigation; force Defendants to incur ever-increasing attorney’s fees; and reduce Defendants’ ability to obtain accurate evidence of the relevant facts, which allegedly occurred between 3 and 10 years ago. 

 

Based on the parties’ moving and opposition papers, as well as the Court’s own records, the Court finds that Plaintiff has failed to demonstrate the necessary “good cause” for the requested protective order.  As California courts have consistently recognized, the Plaintiff has “a duty to prosecute his case in a diligent manner.”  (Lyons v. Wickhorst (1986) 42 Cal.3d 911, 921, citing Oberkotter v. Spreckels (1923) 64 Cal.App. 470, 473; see also, Asia Inv. Co. v. Borowski (1982) 133 Cal.App.3d 832, 843 [plaintiff has “the duty to diligently prosecute its case at every stage of the proceedings.”]; Gray v. Bybee (1943) 60 Cal.App.2d 564, 570 [“It is the duty of a plaintiff to expedite the trial of his case and to diligently prosecute it to a final determination.”].)  Here, Plaintiff has an obligation to diligently pursue this action and Defendants have a right to a prompt resolution of this case.  Moreover, by pursuing its claims against the various Defendants in separate actions, and then delaying its motion to consolidate for nearly five months, Plaintiff certainly must have been aware that the depositions of its principals, as well as all depositions, would likely be taken twice.  Thus, the present circumstances are a direct result of Plaintiff’s own strategic litigation decisions and Defendants should not suffer the consequences. 

 

Thus, in balancing the competing needs and interests of the parties, the Court finds that the certain prejudice to Defendants by postponing the noticed depositions and indefinitely delaying trial clearly outweighs the potential inconvenience and possible additional expenses Plaintiff will incur if the motion to consolidate is granted and duplicative depositions are required.  Additionally, if the motion to consolidate is denied, Plaintiffs will incur no prejudice.  Accordingly, the Court concludes that Plaintiffs have failed to demonstrate the necessary “good cause” for the requested protective order and therefore, Plaintiff’s motion is denied. 

 

2.    Plaintiff’s Motion to Vacate or Continue the Trial Date

 

Plaintiff’s motion to vacate or continue the January 27, 2017 trial date is denied.

 

A trial court has the inherent power to efficiently manage its calendar.  (See, Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967 [“courts have fundamental inherent equity, supervisory, and administrative powers, as well as inherent power to control litigation before them”]; see also, Walker v. Superior Court (1991) 53 Cal.3d 257, 267 [“courts have inherent authority to control their own calendars and dockets”]; Freeman v. Sullivant (2011) 192 Cal.App.4th 523, 527 [courts have broad discretion in deciding whether to grant continuances].)

 

Although Plaintiff is seeking to vacate the trial date, as opposed to continue it, Plaintiff cites to California Rule of Court 3.1332 as support for its request.  Rule of Court 3.1332 states in relevant part that “[t]o ensure the prompt disposition of civil cases, the dates assigned for a trial are firm” and “[a]ll parties and their counsel must regard the date set for trial as certain.”  (Cal. R. Ct. 3.1332(a).  Although continuances are disfavored, the court may grant a continuance “only on an affirmative showing of good cause requiring the continuance.”  (Cal. R. Ct. 3.1332(c).)

 

“Circumstances that may indicate good cause include: (1) [t]he unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances; (2) [t]he unavailability of a party because of death, illness, or other excusable circumstances; (3) [t]he unavailability of trial counsel because of death, illness, or other excusable circumstances; (4) [t]he substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice; (5) [t]he addition of a new party if: (A) [t]he new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or (B) [t]he other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party's involvement in the case; (6) [a] party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or (7) [a] significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.”  (Ibid.)

 

None of the circumstances stated in Rule 3.1332(c) are applicable to the present case.

  

Other factors that the Court may consider in ruling on such a motion include: “(1) [t]he proximity of the trial date; (2) [w]hether there was any previous continuance, extension of time, or delay of trial due to any party; (3) [t]he length of the continuance requested; (4) [t]he availability of alternative means to address the problem that gave rise to the motion or application for a continuance; (5) [t]he prejudice that parties or witnesses will suffer as a result of the continuance; (6) [i]f the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; (7) [t]he court’s calendar and the impact of granting a continuance on other pending trials; (8) [w]hether trial counsel is engaged in another trial; (9) [w]hether all parties have stipulated to a continuance; (10) [w]hether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and (11) [a]ny other fact or circumstance relevant to the fair determination of the motion or application.”  (Cal. R. Ct. 3.1332(d).)  In consideration of all the relevant factors stated above, the Court concludes that Plaintiff has failed to demonstrate the necessary “good cause” to vacate or continue the trial date.  Plaintiff is correct that if its pending motion to consolidate is granted, this action will be consolidated with the lead case in Department 17 and the trial date in this case will effectively be vacated.  However, if the motion to consolidate is denied, this case should proceed to trial on January 27, 2017.  As stated above, the Court finds that the certain prejudice to Defendants by postponing the depositions and delaying the trial outweighs any potential burden or additional expense to Plaintiff caused by multiple depositions.  Accordingly, Plaintiff’s motion to vacate or continue the trial date is denied.  

Defendants’ counsel shall submit a written order to the Court consistent with this ruling and in compliance with Rule of Court 3.1312.

 

 

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