Apr 01, 2015

TENTATIVE RULINGS

LAW & MOTION CALENDAR

Wednesday, April 1, 2015 at 3:30 p.m.

Courtroom 18 –Judge Nancy Shaffer

 

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) 521-6730 by 4:00 p.m. today, Monday, March 30, 2015. 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. MCV-226587; Creditors Trade Association, Inc. v. Qi Ultralounge, LLC
Defendants request for an order instructing the receiver, Michael Brewer, to refrain from proceeding with the sale of defendant Qi Ultralounge’s liquor license (no. 486028) is granted. Mr. Brewer is ordered to return the license to defendant.  On February 7, 2014, defendant fully paid the amount owned on the judgment. The judgment was for $5,518.93. By February 7, 2014, the judgment had earned $205.36 in interest. No other costs or fees were approved and Mr. Brewer had not yet been appointed receiver. Therefore, defendant’s check sent to plaintiff on February 7, 2014, in the amount of $5,833.60 fully covered the amount owed on the judgment.
Defendant is to submit a written order consistent with this ruling.
2. MCV-231624; Collectronics, Inc. v. Innova-Vernon LP, et al.  
Plaintiff’s motion to compel responses is granted.  Defendants are ordered to respond, without objection, to plaintiff’s First Set of Post Judgment Interrogatories and First Post Judgment Demand for Production of Documents and Tangible Things within 30 days of the date of service of the written order granting this motion.  Sanctions are awarded in plaintiff’s favor against defendants in the amount of $600 for attorney’s fees in bringing this motion and $90 for mandatory filing and reporter fees. (See CCP §§ 2023.010; 2023.020.)
Plaintiff is to submit a written order consistent with this ruling.
3. MCV-232326; Collectronics, Inc. v. Hyong Sok Hong, et al.
Plaintiff’s motion to compel responses to its Request for Production of Documents is continued to June 10, 2015 at 3:30 p.m. in Department 18.  Plaintiff must file proof of service of the notice, motion, and motion documents, including notice of the new date for the hearing, not later than May 10, 2015.
4. SCV-252561; USAA Federal Savings Bank v. Soldis
Plaintiff USAA Federal Savings Bank (“USAA”) demurs to the first, second, third, and sixth causes of action in the cross-complaint of defendant Joseph Soldis. Mr. Soldis has agreed to dismiss the second, third, and sixth causes of action. Therefore, the demurrer as to those causes of action is moot.
The first cause of action for breach of contract alleges that on January 3, 2013, through its counsel, USAA executed a settlement agreement to resolve the small claims action of Soldis v. USAA Mortgage (Super. Ct. Sonoma County, 2002, MSC-163078) (“Small Claims Action”).  (Cross-complaint, ¶ ¶ 10, 11, 25, Ex. A.) The settlement agreement is attached to the cross-complaint as Exhibit A.  It shows that Kristina Larese, “[a]s counsel for Cendant Mortgage Corporation d/b/a PHH Mortgage Services, Inc. and on behalf of USAA Federal Bank…” offered Mr. Soldis $5,000 (modified to $5,300) in exchange for a dismissal of the Small Claims Action. In the Small Claims Action, Mr. Soldis alleged that USAA was improperly claiming that Soldis owed it $4,214.30. (Cross-complaint, ¶ 10.) Thus, by settling the Small Claims Action, it was implicit that USAA would not thereafter claim that Mr. Soldis owed USAA said $4,214.30. (See cross-complaint, ¶ 27, Ex. A.)  The failure to refer to any later overdrafts on Mr. Soldis’s bank accounts is irrelevant.  Plaintiff has not provided authority that these allegations are insufficient. Therefore, the demurrer is overruled.
Defendant is to submit a written order consistent with this ruling.
5. SCV-253244; Danoff v. McCannell
Appearances required.
6. SCV-254772; Granzotto, et al. v. Howdy’s Drywall, Inc.  
Defendant Howdy’s Drywall, Inc. moves for leave to file a cross-complaint against plaintiff Patrick Granzotto’s employer, Earthtone Construction, Inc., and Roes 1-20.
This matter was originally set for hearing on January 28, 2015.  The court continued the hearing to April 1, 2015 in response to Defendant’s objection that he did not receive timely notice of the opposition.  The original proposed order granting the motion to amend was inadvertently signed on February 19, 2015.  That order is hereby vacated.
Defendant’s proposed cross-complaint seeks a Witt v. Jackson offset against plaintiff Patrick Granzotto’s employer.  Plaintiffs oppose the motion on the grounds that defendant may not pursue a Witt v. Jackson defense in a cross-complaint.
The purposes of the Workers' Compensation Law would be contravened by permitting a third party to require an employer to undertake the expense of participating in a civil lawsuit without its consent. The earlier cases cited in defendant’s moving papers “were decided long before workers' compensation costs became an important economic issue in California.” (Difko, supra, at 133, citing C.J.L. Construction, Inc. v. Universal Plumbing (1993) 18 Cal.App.4th 376, 392.)
Plaintiff Elizabeth Kershaw’s cause of action for loss of consortium does not change the outcome. The complaint in Dikfo, supra, also contained a cause of action for loss of consortium. (Difko, supra, at 128.)
The lien claim filed by Benchmark Insurance does not change the outcome.  A cross-complaint should not be allowed against an employer even if the employer or its insurer intervenes in the action.  (State v. Superior Court (Glovsky) (1997) 60 Cal.App.4th 659, 661, 664-665.)
Accordingly, Defendant’s motion for leave to file a cross-complaint against Earthtone Construction, Inc. is denied.
Plaintiffs are to submit a written order consistent with this ruling.
7. SCV-255388; Shear Builders v. Create More
Plaintiff’s motion pursuant to CCP §§ 435 and 436 to strike the answer of defendant Create More, Inc., and its request for judicial notice, are granted.  Defendant’s answer was not filed in conformity with the laws of this state as it was filed at a time when Create More, Inc. had forfeited its rights under Revenue and Taxation Code § 23301 and was thus disqualified from participating in litigation. (See Palm Valley Homeowners Ass'n, Inc. v. Design MTC (2000) 85 Cal.App.4th 553, 559-561.)
Plaintiff is to submit a written order consistent with this ruling.
8. SCV-255676; Adams v. Baker
Appearances required.
9. SCV-255818; Shear Builders v. Neel
Plaintiff’s motion is continued to the default calendar on April 21, 2015, in Department 18 at 4:00 p.m.
10. SCV-256056; Weiss v. Santa Rosa Police Department
Defendant City of Santa Rosa (erroneously sued here as Santa Rosa Police Department) demurs to plaintiff’s complaint on the grounds that it fails to plead a statutory basis supporting the conclusory allegations of duty and liability.
A public entity is not liable for an injury except as otherwise provided by statute. (Gov. Code, § 815.)  Direct tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care. (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.)
Plaintiff’s complaint does not allege a statutory basis for defendant’s liability.  Therefore, it is subject to demurrer.
Defendant’s demurrer is sustained with leave to amend.
Defendant is to submit a written order consistent with this ruling.

 

 

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