Jul 24, 2014

Tentative Rulings
Law and Motion Calendar
Wednesday, July 23, 2014, at 3:30 p.m.
Courtroom 18 -- Hon. Nancy Case Shaffer
3055 Cleveland Avenue, Santa Rosa, CA

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 Judicial Assistant by telephone at (707) 521-6729, and all other opposing parties of your intent to appear by 4:00 p.m. today, Tuesday, July 22, 2014.  Parties in small claims cases and motions for claims of exemption are exempt from this requirement.


1. SCV-251468; Walker, et al. v. Sansome

The court entered an order approving service of this motion to withdraw by publication on April 21, 2014.  This motion has been continued twice since then to allow counsel to submit proof of service.  The Motion will denied unless attorney Michael Silvers files proof of publication, as allowed by this court’s April 14, 2014, order, by the time of the hearing on this motion.

2. SCV-251593; WestAmerica Bank v. Chamberlain Lake Park

Cross-defendant WestAmerica Bank demurs the Second Amended Cross-complaint and to the first through eighth causes of action on the ground that each fails to state facts sufficient to constitute a cause of action.

Cross-complainants oppose the motion.

The demurrer is overruled in its entirety.  Cross-complainants have sufficiently alleged facts supporting an exception to the requirement of tender and that the circumstances created a special relationship beyond that of a mere lender of money.  Additionally, the terms of the deed of trust and what constituted a breach thereunder are disputed.  The court must accept the allegations in the complaint as true for purposes of ruling on the demurrer.

Cross-complainants are to submit a written order consistent with this ruling.

3. SCV-252696; O’Hagins, Inc. v. O’Hagin

Motion to Quash (O’Hagin/Anderson) (7/23/14)

Cross-defendants’ Daniel O’Hagin and Brian Anderson (Anderson) (collectively the Movants) appear specially, moving to quash service of summons.  The motion to quash is granted.

The Movants argue that the Cross-Complainant Harry O’Hagin’s (HOH) attempted service of the First Amended Cross-Complaint (FACC) was defective, in that the FACC was served on a law firm that did not represent them Abbey, Weitzenberg, Warren & Emery (AWWE), as well as at a home where they did not reside, the Sebastopol California home of their mother, party Carolina Stollenwerk.

HOH contends that the relevant inquiry is whether the Movants received notice of the FACC.  HOH contends that strict compliance is not the standard in these cases. (Citing Gibble v. Car-Lene Research (1998) 67 Cal.App.4th 295, 313.)  HOH further contends that service was effective on the Movants via service on AWWE.  HOH argues that the Movants’ contention that AWWE was not their attorneys at the time lacks credibility in light of the stipulations that were entered into on behalf of Anderson and Daniel O’Hagin by AWWE. (See Exhibits A & B to the Patterson Dec.)  As a result, HOH argues that service on AWWE was effective. (Citing Warner Bros. Records, Inc. v. Golden West Music Sales (1974) 36 Cal.App.3d 1012, 1015.)

HOH further contends that the Movants were validly served at their place of employment pursuant to CCP § 415.20.  HOH argues that the Movants were both on OHI’s board of directors, and the FACC was sub-served on the residence of the Chairperson of the board of directors for OHI, Carolina.  Moreover, HOH contends that the Movants live at Carolina’s residence in Sebastopol and therefore service was effective pursuant to CCP § 415.20.  HOH points to Carolina’s deposition where she stated under oath that Anderson lived with her in Sebastopol, and that HOH drove past the Sebastopol home and saw DOH there on two occasions. (See Exhibit G to the Patterson Dec. and HOH Dec.)

Movants submitted declarations refuting the factual basis for service asserted by HOH.  The Movants contend that they are not employees of HOH, neither resides at the Sebastopol residence where substitute service was attempted, and, although both have served on the board of directors, neither is presently.  Daniel O’Hagin testified that he has not been on the board of directors for several years; Anderson that he has not been a member of the board since 2009.  The Movants further provide the declaration of Mr. Greenberg, to demonstrate that AWWE’s representation was limited to negotiating the stipulations in question—and the representation did not go beyond that limited representation.  The Movants’ evidentiary objections are overruled.

The California Supreme Court has adopted a “liberal construction” of California statutes governing service of process. (Pasadena Medi–Center Associates v. Superior Court (1973) 9 Cal.3d 773, 778; Summers v. McClanahan (2006) 140 Cal.App.4th 403, 410 (Summers ).)  So long as the defendant receives actual notice of the lawsuit, substantial compliance with the California statutes governing service of summons generally will be held sufficient. (Pasadena Medi–Center Associates v. Superior Court, at p. 778; Gibble v. Car–Lene Research, Inc. (1998) 67 Cal.App.4th 295, 313 ( Gibble ); Dill v. Barquist Construction Co. (1994) 24 Cal.App.4th 1426, 1436–1437 ( Dill ); Summers, at pp. 407–411.)

Even liberally construing the California statutes, however, it is established that actual notice of the action is not a substitute for proper service and is insufficient to confer jurisdiction. As recognized by the Court of Appeal in Summers, “no California appellate court has gone so far as to uphold a service of process solely on the ground the defendant received actual notice when there has been a complete failure to comply with the statutory requirements for service.” (Summers, supra, 140 Cal.App.4th at p. 414.) Further, a defendant is under no duty to respond in any way to a defectively served summons.  It makes no difference that defendant had actual knowledge of the action.  Such knowledge does not dispense with statutory requirements for service of summons. (See Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1466; Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808.)

Here, HOH has not established that he properly served the FACC on the Movants. The substitute service on the Sebastopol residence is rebutted by the Movants declarations that they do not reside there. Similarly, the substitute service on OHI was defective in that the Movants are not employed by OHI.  Further, HOHO is attempting service of agents that do not have authority to accept service on behalf of the Movants, notable AWWE and Carolina. (See Summers, supra, at 406-407.)  Once AWWE limited scope representation ceased, so did any authority to accept service. (See Summers, supra, at 414.)

Accordingly, and for the foregoing reasons, the motion to quash is granted. The Movants are to draft an order consistent with this ruling.

Motion to Quash (Morson) Continued for argument on tentative ruling (posted 7/16/14):

Cross-Defendant Geoffrey Morson’s (“Morson”) moves to quash service of summons of the First Amended Cross-Complaint (FACC).  Morson contends that he does not have sufficient contacts with California to form the basis for personal jurisdiction.  Morson’s Declaration states that he has not resided in California since 1991 and he has not visited the state since 1997; he is a member of the California and New York state bar associations but he does not practice law in either state and he does not maintain an office in California.  Presently, Morson testified that he maintains an office in Cambridge England where he practices international law.

Defendant/Cross-Complainant Harry O’Hagin (HOH) opposes the motion, contending that Morson’s contacts are sufficient to exercise jurisdiction.  HOH seeks an opportunity to conduct discovery in the event that the court is inclined to grant the motion.   HOH’s request for judicial notice is granted.  HOH argues that Morson counts O’Hagin’s Inc. (OHI) as among his clients, and that he provides legal counsel to OHI, which is a California business.  HOH further contends that Morson’s contacts with California and OHI are sufficient to subject him to the jurisdiction of this court.  HOH contends that OHI’s business does not have an international scope, and Morson’s argument that his advice was limited to international tax issues is not credible.  

Morson concedes that he is a member of the California bar and that he provides limited legal advice to OHI on discrete international law issues.  Morson’s reliance on Crea v. Busby [(1996) 48 Cal.App.4th 509] for the proposition that his maintenance of a law license in California is insufficient to subject him to the jurisdiction of the California court is misplaced.   Crea stands for the proposition that the maintenance of a bar license alone does not provide enough nexus to the forum state—absent other circumstances—to warrant a finding of jurisdiction.  In this case, other relevant circumstances are present.  Morson’s client, OHI, is a California business entity, which manufactures sells and markets its products from California.  The allegations against Morson do not deal directly with Morson’s provision of international legal advice, but rather his involvement with the business entities that HOH contends have taken over the business operations and intellectual property rights of OHI—in essence the beneficiaries of the alleged fraudulent transfers. (FACC ¶¶ 12 & 60.)

Morson’s reliance on Edmunds v. Superior Court (1994) 24 Cal.App.4th 221, 228 is also misplaced.  In Edmunds, the nonresident attorney's contact with California was limited to traveling to California to defend a deposition in connection with litigation filed and litigated in Hawaii. Here, Morson is a California attorney advising a California company regarding matters related to its business—which directly affects the forum state. Edmunds is distinguishable in that the attorney there was representing a California client in Hawaii.  

Morson’s connections to the state, as presented to the court for purposes of this motion, may at a minimum provide the basis for specific jurisdiction, which would be sufficient to prevent Morson from quashing service.  By acting as legal counsel for OHI Morson has engaged in conduct potentially subjecting him to jurisdiction in California.  Further the relationship between Morson and California, with respect to the allegations in the FACC, show a nexus between the causes of action and Morson’s contacts.  HOH alleges that Morson facilitated the fraudulent transfers in question—thereby divesting OHI of any value.  These alleged activities allegedly occurred in California.  The jurisdictional issue is an evidentiary one—HOH provides little in the way of evidence of Morson’s connections with California but also seeks an opportunity to obtain limited discovery regarding jurisdiction.  HOH relies on the verified FACC, but it provides no proof beyond the allegations that Morson facilitated the alleged fraudulent transfers.   Under the circumstances it is appropriate to continue the motion to allow for HOH to conduct limited discovery into Morson’s contacts with California and facts relating to the jurisdictional criteria.  (See HealthMarkets, Inc. v. Sup.Ct. (Berman) (2009) 171 Cal.App.4th 1160, 1173; Goehring v. Superior Court (Bernier) (1998) 62 Cal.App.4th 894 [A plaintiff is generally entitled to conduct discovery with regard to a jurisdictional issue before a court rules on a motion to quash].)

Accordingly, the motion is continued to November 12, 1014, to allow HOH to conduct discovery regarding the jurisdictional issues.  Any supplemental opposition and reply briefs are to be filed within the statutory times based on the continued hearing date.  Morson is to submit a written order in accordance with this ruling.

4. SCV-254567; Chandler v. Zappelli Body Shop, Inc.

Continued for argument on Tentative Ruling posted 7/16/14:

The motion of Defendant Zappelli Body Shop, Inc. for judgment on the pleadings as to the first, second and fourth causes of action on the ground that they fail to state sufficient facts to constitute a cause of action is granted in part and denied in part.

The motion with regard to the first cause of action for Violation of the Consumer Legal Remedies Act is granted with leave to amend. Civ. Code § 1770(a) applies to “unfair methods of competition and unfair or deceptive acts or practices undertaken by any person in a transaction intended to result or which results in the sale or lease of goods or services to any consumer… .” The complaint alleges that the misrepresentation was made after the repair—not as an inducement to sell services. (Complaint, ¶ 42.)

The motion with regard to the second cause of action is granted without leave to amend. The Beverly-Song Act applies to the sale of consumer goods—not repair services. (See Civ. Code § 1791.)

The motion with regard to the fourth cause of action for Violation of Bus. & Prof. Code § 17200 is denied. Defendant has not met its burden to establish that this cause of action fails to state facts sufficient to constitute a cause of action.

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

5. SCV-254959; Reynolds v. Ford Motor Company


Defendant Ford Motor Company’s demurrer to the first through fifth causes of action Plaintiff’s first amended complaint (“FAC”), on the grounds they fail to allege facts sufficient to constitute a cause of action, is granted with leave to amend.

The FAC alleges that plaintiff purchased his vehicle on April 15, 2006.  Claims for fraud and claims based upon the Consumer Legal Remedies Act both have a three year statute of limitations. (CCP § 338(d), Civ. Code § 1783.) This action was filed on January 31, 2014—over 7 years after plaintiff purchased the vehicle.   Plaintiff relies on the “discovery rule” to avoid a statute of limitations defense.  The complaint does not specifically plead facts that show (i) the time and manner of discovery, and (ii) plaintiff's inability to have made an earlier discovery despite reasonable diligence. (Fox v. Ethicon Endo–Surgery, Inc. (2005) 35 Cal. 4th 797, 808; E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal. App. 4th 1308, 1324; Czajkowski v. Haskell & White, LLP (2012) 208 Cal. App. 4th 166, 174–175.)  These facts must be alleged with particularity; legal conclusions are not sufficient. (Weinstock v. Eissler (1964) 224 Cal.App.2d 212, 228-229.)

The allegations regarding discovery of Plaintiff’s claims are not pled with sufficient particularity.  The FAC alleges that plaintiff experienced numerous problems but it does not indicate when these problems began or how frequently they occurred.  

Further, the complaint only contains the date of two specific instances when the vehicle required repair.   No specific dealerships are named.  As against a defendant corporation plaintiff must allege the name of the person who spoke, his authority to speak, to whom he spoke, what he said or wrote, and when it was said or written. (Mason v. Drug, Inc. (1939) 31 Cal.App.2d 697, 703.)  Although this requirement is relaxed when the allegations indicate that the defendant must necessarily possess full information concerning the facts of the controversy (Tarmann v. State Farm Mut. Auto. Ins. Co.(1991) 2 Cal.App.4th 153, 158), the allegations here are still insufficient.

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

Motion to Strike:

Defendant Ford Motor Company’s motion to strike certain portions of the FAC alleging violation of the implied warranty under the Song-Beverly Act on the ground that it is untimely as a matter of law is denied.

The motion is brought pursuant to Civ. Code § 1791.1(c), Comm. Code § 2725, and CCP §§ 435 and 436.   An action for breach of warranty accompanying the sale of “goods” (Comm'l C. § 2105(1)), including an action under the Song–Beverly Consumer Warranty Act (Civ.C. § 1790 et seq.) for breach of warranty pertaining to “consumer goods” (Civ.C. § 1791(a)), must be brought within 4 years after the cause of action accrues. (Comm'l C. § 2725(1); Mills v. Forestex Co. (2003) 108 Cal. App. 4th 625, 642; Krieger v. Nick Alexander Imports, Inc. (1991) 234 Cal. App. 3d 205, 215; Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal. App. 4th 1297, 1307.)

“A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.” (Comm'l C. § 2725(2); see Cardinal Health 301, Inc. v. Tyco Electronics Corp. (2008) 169 Cal. App. 4th 116, 129.)

The “future performance” exception is narrowly construed. Accrual is delayed beyond delivery only when the “seller has expressly agreed to warrant its product for a specific and defined period of time.” (Cardinal Health 301, Inc. v. Tyco Electronics Corp., supra, at 130.) In addition, the circumstances must be such that “discovery of the breach must await” the time of the promised future performance. (Comm'l C. § 2725(2); see Cardinal Health 301, Inc., supra, at 133.)

A promise to repair defects that occur during a future period, such as a written warranty that all defects would be repaired for a period of 36 months or within the first 36,000 miles of use, is the very definition of express warranty of future performance. (Krieger v. Nick Alexander Imports, Inc., supra, 234 Cal.App.3d at 217.)

Thus, in the case of Mexia, v. Rinker, supra, 174 Cal.App.4th at 1301, the appellate court reversed the trial court’s ruling which sustained a demurrer without leave to amend based on a finding that the cause of action under the Song-Beverly Act was barred by the statute of limitations.  The failure to discover the defect within the one year duration of the warranty period did not bar the action where it was possible that the defect may have occurred during the warranty period.  In that case, the latent defect was not covered by the future performance exception so the cause of action accrued at the time of the delivery of the goods. (Id. at 1302, 1305.) As the action was brought within four years of accrual, it was timely. (Ibid.)

Ford’s reliance on  Cardinal Health 301, Inc. v. Tyco Electronics Corp., supra,169 Cal.App.4th at 134, citations omitted, is misplaced.  The appellate court in Cardinal Health held that “[b]ecause an implied warranty is one that arises by operation of law rather than by an express agreement of the parties, courts have consistently held it is not a warranty that “explicitly extends to future performance of the goods ....”  Unlike this case, Cardinal Health did not involve an express warranty that warranted the product for a defined period of time. (Cardinal, supra, at 131.)

Defendant’s reliance on Atkinson v. Elk Corp. of Texas (2006) 142 Cal.App.4th 212 is also misplaced.  There, the breach occurred after expiration of the one year warranty period. (Id. at 256, 230, 232 [appellate court confirmed trial court’s decision regarding breach of implied warranty that the breach occurred after the warranty’s one-year duration period.])

The case of Krieger v. Nick Alexander Imports, Inc., supra, 234 Cal.App.3d 205, is controlling as it applied the “future performance” exception.   In Krieger, the cause of action did not accrue until the plaintiff discovered that defendant would not repair the vehicle within the warranty period.  (Id. at 209, 211.) Plaintiff had an express warranty to repair the vehicle within 36 months of its purchase or during the first 36,000 miles of its use. (Id. at 211.)  The car was repaired five times, the last time being on May 30, 1984.  (Id. at 209.)  The court held the cause of action for breach of the implied warranty pursuant to the Song-Beverly Act accrued no later than May 1985. (Id. at 211.)

Here, the complaint alleges that “the vehicle was delivered with serious latent defects and non-conformities to warranty, including, but not limited to, defects in turbo charger systems, fuel injection systems, head gasket, EGR valves, electrical systems, transmission systems, and cooling systems and coolers plugging.” (FAC, ¶ 327; see also FAC, ¶ 332.)  These alleged latent defects are alleged to have manifested within the express warranty period.  (FAC, ¶ 328.)  The FAC alleges the existence of an express warranty for engine repair for 5 years or 100,000 miles. (FAC, ¶ 48.)  Thus, the future performance exception applies and the cause of action did not accrue until plaintiff did, or should have, discovered the breach.

The same lack of specificity in the pleading that is the basis for sustaining the companion demurrer without leave to amend, compels the court to deny the motion to strike.  FORD has not established that the face of the complaint, in its present form, shows that the cause of action under the Song-Beverly act is barred by the statute of limitations.  The motion to strike is denied.

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

6. SCV-255198; Barnett v. Jonas

Plaintiffs James R. Barnett and Terri L. Barnett move for a preliminary injunction enjoining defendants from digging, excavating and constructing improvements on a common driveway easement. No opposition has been received.

First, plaintiffs have failed to file proof of service of the motion. However, the court having considered the merits denies the motion. Plaintiffs have failed to establish irreparable injury and probability of success on the merits in acquiring a permanent injunction against improvements in the Driveway Easement.

7. SPR-76411; Matter of Fred Demattei Trust

Respondent Nancy McKean’s demurer and motion to strike the Petition for Report, Accounting, and Determination as to the Internal Proceedings of a Trust, filed on April 16, 2014, on the ground that petitioner David Demattei does not have standing to bring the Petition is sustained with leave to amend.   Therefore, the motion to strike is moot.

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

8. SPR-86281; In the Matter of The Lawrence A. Bertolini and Roseann Bertolini Revocable Trust

Continued from 7/16/14–Appearances required

Petitioner Deborah DeBruin moves to compel Norton & Ingersoll, P.C. (N&I) to produce certain documents identified as attorney work product in a privilege log served in responsive to the deposition subpoena issued to N&I on January 9, 2014.  Petitioner requests sanctions.

Moving parties contend the production of attorney Theresa Norton’s October 23, 2013 Memorandum to file resulted in a waiver of the attorney work-product privilege with respect to the other documents identified as work-product attorney notes, in the privilege log.

N&I contend that the October 23, 2013 Memorandum was prepared to document Ms. Norton’s impressions as to Roseann Bertolini’s testamentary capacity for the express purpose of allowing Ms. Norton to testify adequately if Ms. Bertolini’s testamentary capacity at that time was ever challenged.

Appearances are required to address possible in camera review of the other notes to determine whether the privilege has been waived on the ground that the other notes are related to the same subject matter as the voluntarily disclosed October Memo. (See Sony Computer Entertainment America, Inc. v. Great American Ins. Co. (N.D. Cal. 2005) 229 F.R.D. 632.).   The court also requests argument as to whether the work product privilege may be asserted in the context of this case.  (See Evid. Code §§ 957, 960.)


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