Feb 08, 2016

Wednesday, FEBRUARY 3, 2016, 3:00 p.m.
Courtroom 18 – Judge Rene 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, February 2, 2016.  Parties in small claims cases and motions for claims of exemption are exempt from this requirement.


1. MCV-233186; Investment Retrievers v. Donan:

Plaintiff’s motion to vacate and set aside the default and default judgment entered against Defendant Francisco Donan aka Francisco Donan Herrera is granted.  The judgment and default are hereby set aside and vacated.  As requested by Plaintiff, the action is dismissed with prejudice.



2. MSC-185876; Bonner v. Plevney:

Plaintiff must bring his process server to court or present other evidence that proves the Defendant was properly served.



3. SCV-253611; Xenos v. Park:

Defendants’ motion for summary judgment is denied.  A triable issue of material fact remains regarding whether the Floor Service Reps retained a supervisory role over defendants’ dealers, and thus were “agents” of the employer as defined in Labor Code § 350. (See Kellner dec., ¶ 3, 5-7; Scott dec., ¶¶ 4-6; Faison dec., ¶¶ 5,6.)  A second triable issue of fact is whether Plaintiff dealer is affected by Defendants’ inclusion of FSRs in the tip sharing pool.


A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.  (CCP §437c(c),(f)(1).)  As at least one triable issue remains with respect to the PAGA claim, the court may not summarily adjudicate the alleged Labor Code violations that also form the basis of that cause of action. 


Defendants have not met their burden to establish that the Plaintiff may not bring a PAGA claim against all of the Defendant entities.


All of Defendants’ objections are overruled except as to Vialpando Material Fact No. 1.


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



4. SCV-255127; Bourque v. Midstate Construction:

Cross-Defendant Frazier Masonry Corporation’s motion for summary judgment or, in the alternative, summary adjudication is denied for two reasons: 1. In order to fully oppose this motion, Midstate Construction Corporation should first have an opportunity to depose Frazier’s Person Most Knowledgeable.  2. Frazier has a broad duty to Defendant Midstate as to any claim arising out of the “Project,” regardless of whether Frazier is negligent.  This duty to defend extends until it is determined that the injury is due to the sole active negligence of Midstate.  (Bell v. Superior Court (2013) 220 CalApp.4th 236, 251.)  This determination has not yet been made.


Frazier’s objection to Ex. B of the declaration of Norine Busser is sustained.


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



5. SPR-88295; Winsby Trust:

On January 27, 2016, this court issued an OSC RE why a Preliminary Injunction should not be issued enjoining Respondent Walter Winsby from evicting Erika Winsby from the premises located at 385/389 Ferguson Road, Sebastopol, CA, and from selling or attempting to sell property located at 385/389 Ferguson Road and 707 Ferguson Road.


In balancing the potential harms and considering the petitioners’ probability of prevailing on the merits, the court will grant the motion in order to maintain the status quo until the issues in the petition can be resolved.


Petitioners are to submit a written order consistent with this ruling


© 2016 Superior Court of Sonoma County