Jul 31, 2014

Tentative Rulings
Law and Motion Calendar
Wednesday, July 30, 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 29, 2014.  Parties in small claims cases and motions for claims of exemption are exempt from this requirement.

 

1. SCV-245829; King v. Cruz 

Plaintiff must serve the Order to Show Cause personally on defendant Blumenfeld.  The motion is continued to August 20, 2014.

2. SCV-253635; Fannie Mae v. Marchesiello

The motion by Defendant and Cross-complainant Gianfranco Marchesiello for an order granting summary adjudication of the cause of action for declaratory relief in his cross-complaint is denied.

The motion for summary adjudication is procedurally improper because, even if granted, it would not completely dispose of a cause of action. (See CCP § 437c(f).) However, even if this court granted leave to amend the cross-complaint to separate the two issues raised in the declaratory relief cause of action into two separate cause of actions, the motion would still be denied.  Cross-complainant has not met his burden to show that the $61,294.43 owed pursuant to the Forbearance Agreement is an unenforceable penalty.  Pursuant to the Agreement, and in exchange for Fannie Mae’s forbearance from its right to proceed with its default remedies, Mr. Marchesiello agreed the trust owed Fannie Mae $178,572.46, of which $61,294.43 was Default Interest.  This is not the type of situation represented in the cited cases. In those cases, the penalty only arose upon default of the contract. Here, the amount was owed upon execution of the agreement. Accordingly, the motion is denied.

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

3. SCV-253864; Chamberlain v. Bankers Life and Casualty

Plaintiff’s motion to quash or modify the subpoena served on third-party Trincero Family Estates is granted in part.  The court modifies the subpoena to limit it to records reflecting:

1.        All documents regarding, referring, or relating to complaints of sexual harassment made by Plaintiff Danielle Chamberlain against any employee, customer, vendor, or independent contractor of Trincero Family Estates, during Plaintiff’s employment with Trincero Family Estates.  

2.        All documents regarding, referring, or relating to investigation into complaints of sexual harassment made by Plaintiff Danielle Chamberlain during her employment with Trincero Family Estates.  

3.        All documents regarding, referring, or relating to complaints of sexual harassment made by or against Plaintiff Danielle Chamberlain against any employee, customer, vendor, or independent contractor of Trincero Family Estates, during Plaintiff’s employment with Trincero Family Estates.  

4.        All documents regarding, referring, or relating to communications from or to the Employment Development Department, the Department of Fair Employment & Housing, or any other state or federal agency regarding complaints of sexual harassment by or against Danielle Chamberlain.

Sanctions are denied.

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

4. SCV-255200; Cupp v. State of California 

Defendant Superior Court of California, County of Sonoma demurs to the complaint on the ground that it fails to state facts sufficient to constitute a cause of action.  The complaint contains no factual allegations against the defendants, thus it fails to state any cause of action against defendants.  There has been no opposition filed.  Plaintiff has not demonstrated that the complaint could be amended to state a cause of action.  The demurrer is sustained without leave to amend.

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

5. SCV-255685; 8270 Holdings LLC v. Aronow

Preliminary Injunction:

Plaintiff’s motion for a preliminary injunction to enjoin Gerald Aronow from accessing the property at 8270 Petaluma Hill Road is granted. The motion is denied as to the remaining requests.  Plaintiffs shall post a bond. Appearances are required for the court to hear argument on the amount of the bond.

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

Appointment of a Receiver:

Defendant’s motion for the appointment of a receiver is denied.

6. SPR-84785; In re Mazzaferri Living Trust

Petitioners Edith Mazzaferri, Gina Parisi, and William Parisi (together “Petitioners”) move to expunge the notices of pending action recorded against properties owned by Edith  Mazzaferri as trustee of the bypass trust under the Mazzaferri Living Trust on the grounds that they are invalid and contemptuous; to expunge the mechanic’s liens recorded against Petitioner’s properties; to enjoin Ronald Mazzaferro from encumbering Mazzaferri Trust properties or interfering with the currently pending sales; to consolidate SCV-255256 with Petitioners’ action to quiet title and for slander of title; and for attorney fees and costs.

The motion to expunge the notices of pending action is granted. While the complaint in SCV-255256 states a real property claim, Ronald Mazzaferro has not established the “probable validity” of his claim. (See CCP § 405.32.)

Appearances are required to determine the amount of attorney fees awarded.

The motion to expunge the mechanic’s liens is granted. A claim that is recorded too late also is unenforceable. (Civ. Code, §§ 8412, 8414) It is clear from the established facts that the liens were not timely recorded.

Petitioners have not provided authority for the issuance of an injunction to enjoin Mr. Mazzaferro from encumbering Mazzaferri Trust properties or from interfering with the currently pending sales.

The motion to consolidate this action with SCV-255256 is granted/denied.

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

 

 

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