Aug 11, 2020
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TENTATIVE RULINGS

LAW & MOTION CALENDAR

Wednesday August 5, 2020, 3:00 p.m. via Zoom

Courtroom 18 – Hon. Jennifer V. Dollard

In accordance with the Addendum to First Amended Omnibus Order of the Presiding Judge issued May 27, 2020, only those persons with court hearings in criminal actions shall enter a Sonoma County Superior Court facility. Until further notice, all matters set for hearing in this courtroom shall be heard remotely through Zoom. No party or representative of a party may appear personally in Courtroom 18. CourtCall is not permitted for this calendar.

 

If the tentative ruling is accepted, no appearance is necessary via Zoom unless otherwise indicated.  
 
TO JOIN “ZOOM” ONLINE,
D18 – Law & Motion 3pm Wednesday
MeetingID: 886-6552-6099
Password: 579510
 
TO JOIN “ZOOM” BY PHONE,
By Phone (same meeting ID and password as listed for each calendar):
+1 669 900 6833 US (San Jose)

 

 Guide for participating in court proceeding via Zoom D18

-After joining the meeting and checking in with the clerk, please mute your audio when not speaking. This helps keep background noise to a minimum.

-Be mindful of background noise when your microphone is not muted. Avoid activities that could create additional noise, such as shuffling papers.
-Position your camera properly if you choose to use a web camera. Be sure it is in a stable position and focused at eye level, if possible. Make sure everything visible in the frame is appropriate for an appearance in court.
-If a confidential session becomes necessary it is incumbent on you to ensure you are able to participate from a private location so that unauthorized people cannot overhear or see the proceedings.
-Chat is enabled for the sharing of documents among participants and the court and to allow attorneys to communicate individually with each other or their clients only. No chat messages should be sent privately to the court as it would amount to an unauthorized ex parte communication. Neither should chat messages be sent to all participants unless directed by the court.
-The recording function has been disabled. Remember, the prohibition against recording court proceedings, even remote ones, remains.
-Be patient. Check in will take more time and the experience from those who have tried this before is that proceedings are a little slower generally.
  
 
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- 6730 and all other opposing parties of your intent to appear by 4:00 p.m. today, Tuesday, August 4, 2020. 
 
PLEASE NOTE: The court WILL provide a court reporter for this calendar. If there are any concerns, please contact the court at the number provided above.
 
 

 

 

 

  
  
 
1.         MCV-195865, Unifund CCR Partners v. Vanhouten
 
This matter is set for an Order to Show Cause why defendant/judgment debtor Kenneth W. Vanhouten’sinterest in the real property, located at 175 Mountain Avenue, Sonoma, CA 95476-3438,should not be sold to satisfy the judgment in this matter, in favor of judgment creditor’s assignee NDS, LLC.
 
            Per NDS, LLC’s application for order for sale of dwelling, the balance due on the judgment as of the date of the signing of March 12, 2020 is $37,698.35 ($26,901.30 in principal plus $10,797.05 in post judgment interest through March 12, 2020 plus interest after March 12, 2020, at the per diem rate of $7.37 plus costs and attorney fees in an as of yet undetermined amount).
 
            A number of senior liens or encumbrances exist on the dwelling as of November 25, 2019 and are listed in the application.  NDS, LLC asserts the fair market value of the real property is $450,000 based on an appraisal completed by NDS, LLC on December 16, 2019.
 
            There is no homestead or disabled veteran exemption recorded with the county tax assessor and pursuant to CCP § 704.780(1), therefore, the burden is on the judgment debtor to establish the existence and amount of a homestead exemption to which he is entitled.
 
            A judgment debtor may show entitlement to a homestead exemption amount by his declaration under penalty of perjury and is not required to submit other evidence, such as tax returns or bank statements. (See, Tarlesson v Broadway Foreclosure Invs., LLC (2010) 184 CA4th 931, 939.) CCP § 704.730 governs the amount of the homestead exemption and provides as follows:
 
            (a) The amount of the homestead exemption is one of the following:
(1) Seventy-five thousand dollars ($75,000) unless the judgment debtor or            spouse of the judgment debtor who resides in the homestead is a person described in paragraph (2) or (3).
(2) One hundred thousand dollars ($100,000) if the judgment debtor or spouse of the judgment debtor who resides in the homestead is at the time of the attempted sale of the homestead a member of a family unit, and there is at least one         member of the family unit who owns no interest in the homestead or whose only interest in the homestead is a community property interest with the judgment debtor.
            (3) One hundred seventy-five thousand dollars ($175,000) if the judgment debtor            or spouse of the judgment debtor who resides in the homestead is at the time of the attempted sale of the homestead any one of the following:
            (A) A person 65 years of age or older.
            (B) A person physically or mentally disabled who as a result of that disability is    unable to engage in substantial gainful employment. There is a rebuttable      presumption affecting the burden of proof that a person receiving disability    insurance benefit payments under Title II or supplemental security income        payments under Title XVI of the federal Social Security Act satisfies the             requirements of this paragraph as to his or her inability to engage in substantial gainful employment.
            (C) A person 55 years of age or older with a gross annual income of not more than twenty-five thousand dollars ($25,000) or, if the judgment debtor is married, a gross annual income, including the gross annual income of the judgment debtor's spouse, of not more than thirty-five thousand dollars ($35,000) and the sale is an involuntary sale.
            (b) Notwithstanding any other provision of this section, the combined homestead             exemptions of spouses on the same judgment shall not exceed the amount          specified in paragraph (2) or (3), whichever is applicable, of subdivision (a),       regardless of whether the spouses are jointly obligated on the judgment and           regardless of whether the homestead consists of community or separate property    or both. Notwithstanding any other provision of this article, if both spouses are entitled to a homestead exemption, the exemption of proceeds of the homestead             shall be apportioned between the spouses on the basis of their proportionate       interests in the homestead.
 
            Based on the application, and if defendant debtor does not request to appear and present evidence to the contrary, the court finds the dwelling is not subject to an exemption and grants NDS, LLC’s application for sale of the property.
 
            Any evidence must be filed prior to the hearing or the debtor must be prepared to share the documents with the other party and court through the file sharing function on chat which is enabled.
 
 
2.         MCV-251142, Looney v. B K Khinda, Inc., a California Corporation
 
This breach of contract action is on calendar for Defendants’ unopposed motion to change venue to Los Angeles County. Defendants bring the motion under Code of Civil Procedure section 395(a) and on the grounds that defendant B K Khinda, Inc. is a California Corporation with its principal place of business in Los Angeles County and individual defendant Balwinder Kaur is a resident of Los Angeles County. On June 29, 2020, Plaintiff filed a notice of non-opposition to the motion, stating in part that Plaintiff “does not oppose [Defendants’] Motion for Transfer of [the] Action to Los Angeles.”   
 
Where an action is brought against both corporate and individual defendants, venue is proper in a county where the individual defendants reside or where the corporation has its principal office, i.e., its “residence” for venue purposes. (Code Civ. Proc. §395(a), et seq.) “Where a defendant has made a proper showing of nonresidence, plaintiff has the burden to show that the case comes clearly within one of the statutory exceptions to the general rule that actions are triable in the place of the defendant’s residence.”  (California State Parks Foundation v. Superior Court (2007) 150 Cal.App.4th 826, 833.) Here, Defendants have sufficiently shown they “reside” in Los Angeles County and therefore, Los Angeles County is the proper venue. Moreover, Plaintiff does not oppose the request to transfer venue to Los Angeles.     
 
Accordingly, Defendants’ unopposed Request for Judicial Notice is GRANTED and Defendants’ unopposed Motion to Transfer Venue is GRANTED.  
 
Defendants’ counsel shall submit a written order to the Court that is consistent with this tentative ruling and in compliance with Rule of Court 3.1312.
The matter is calendared on January 5, 2021 at 3:00 p.m. in Department 18 on the case management calendar for confirmation of venue transfer. If the transfer has been completed the hearing date will be vacated. All other future dates are vacated at this time.
 
3.         SCV-265188, Noll v. Santa Rosa Convalescent Hospital
 
Santa Rosa Postacute Care, LLC’s (“SRPC”) motion to stay the case pending a ruling on its petition to compel arbitration is GRANTED. The action is hereby STAYED as to SRPC pending a ruling on its petition for arbitration. 
 
The Code provides in part that the Court “shall” stay the action “until the application for an order to arbitrate is determined and, if arbitration of such controversy is ordered, until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies.” (Code Civ. Proc. §1281.4; see also, 9 U.S.C. §3, et seq.) “If the issue which is the controversy subject to arbitration is severable, the stay may be with respect to that issue only.” (Ibid.) Thus, while the Code requires the trial court to stay the action as to issues subject to the arbitration agreement, the Code gives the trial court “discretion” to sever certain issues not subject to arbitration. (Federal Ins. Co. v. Superior Court (1998) 60 Cal.App.4th 1370, 1375; see also, Madden v. Kaiser Found. Hosps. (1976) 17 Cal.3d 699, 714 [“the trial court is not required to stay all proceedings against the defendants who are not entitled to arbitration; the court may, in its discretion, sever the action as to [parties not entitled to arbitration] or limit any stay to those issues subject to arbitration.”], citing, Code Civ. Proc. §1281.4 and Cook v. Superior Court (1966) 240 Cal.App.2d 880, 885.)
 
Here, SRPC’s motion seeks a stay in the proceedings pending a ruling on its petition to compel arbitration. Plaintiff does not oppose the requested stay as to defendant SRPC but opposes any stay that would include defendant Santa Rosa Convalescent Hospital (“SRCH”) because such a stay would “unfairly prevent Plaintiff from filing a motion to have [SRPC] deemed an alter ego of [SRCH].” (Opp. at 3:22-25.) In its reply, SRPC clarifies that the requested stay is as to SRPC only and explains that SRCH is a separate entity and separate defendant which thus far has not appeared in this case and is in default. (Reply at 2:5-9.) The Court agrees that a stay is warranted as to SRPC pending a ruling on its petition to compel arbitration and therefore, the unopposed motion is granted.      
 
            In light of the stay pending a ruling on the petition to compel arbitration, the court continues Plaintiff’s request to re-set the trial date to September 23, 2020 to be heard concurrently with the Petition to Compel Arbitration.
 
SRPC’s counsel shall submit a written order to the Court that is consistent with this tentative ruling and in compliance with Rule of Court 3.1312.
 
 
 
4.         SCV-266165, Bojorquez v. Duran
 
Plaintiff’s Request for Judicial Notice of Exhibit 3 (Plaintiff’s Verified Complaint) is GRANTED and the Request for Judicial Notice of Exhibit 1 (Certificate of Title) and Exhibit 2 (Defendant’s original Answer) is DENIED. With respect to the Certificate of Title, Evidence Code section 452(h) allows the Court to take judicial notice of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code §452(h).) Here, the parties’ respective ownership interest in the manufactured home is disputed and is not capable of “immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” Thus, judicial notice is not proper. (See, Herrera v. Deutsche Bank Nat’l Tr. Co., 196 Cal.App.4th 1366, 1374 [trial court could not take judicial notice of disputed facts in recorded documents.].) With respect to Defendant’s original answer, the Court notes that Defendant filed a first amended and verified answer on May 21, 2020 and therefore, the original answer is superseded and has no relevance here. (See, People ex rel. Strathmann v. Acacia Research Corp. (2012) 210 Cal.App.4th 487, 506 [the filing of an amended verified answer “supersede[d] the original one, which cease[d] to perform any function as a pleading.”]; see also, State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1131.) 
 
            Plaintiff’s Objections to Evidence 1-7 are OVERRULED. The unverified statements of fact in Defendant’s opposition are not “evidence” and therefore, are not properly the subject of evidentiary objections.
 
Plaintiff’s Motion for an Interlocutory Judgment of Partition is DENIED. 
 
“[P]artition is ‘the procedure for segregating and terminating common interests in the same parcel of property.’”  (Summers v. Superior Court (2018) 24 Cal.App.5th 138, 142, quoting, 14859 Moorpark Homeowner’s Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396, 1404-1405.)  It is a “remedy much favored by the law.” [citation.]  “The original purpose of partition was to permit co-tenants to avoid the inconvenience and dissension arising from sharing joint possession of land.” [citation.]  “An additional reason to favor partition is the policy of facilitating transmission of title, thereby avoiding unreasonable restraints on the use and enjoyment of property.”  (Ibid, citing, Cummings v. Dessel (2017) 13 Cal.App.5th 589, 596.) 
 
The rules governing an action for partition are stated in Code of Civil Procedure section 872.710, et seq. As relevant here, the Code states that “[a]t the trial, the court shall determine whether the plaintiff has the right to partition.” (Code Civ. Proc. §872.710(a).) Thereafter, the Code states that “[i]f the court finds that the plaintiff is entitled to partition, it shall make an interlocutory judgment that determines the interests of the parties in the property and orders the partition of the property and, unless it is to be later determined, the manner of partition.” (Code Civ. Proc. §872.720(a).) “[A]lthough the action of partition is of statutory origin in this state, it is nonetheless an equitable proceeding.”  (Cummings, supra, 13 Cal.App.5th 596–597, citing, Elbert, Ltd. v. Federated Income Properties (1953) 120 Cal.App.2d 194, 200.) 
 
In this case, while Plaintiff may ultimately be entitled to partition of the property, material facts are in dispute and Plaintiff has not presented sufficient evidence to show he is entitled to partition in this summary proceeding. Indeed, Defendant’s amended and verified answer denies that Plaintiff is the “owner of an undivided fifty percent (50%) interest in the Mobile Home.” (See, Defendant’s May 21, 2020 First Amended Answer at ¶2.) “A verified answer, filed in an action, is presumed to contain facts which from the nature of the matter under investigation are within the knowledge or belief of the adversary party, whether they be in the form of denials or affirmative allegations.” (Lindemann v. San Joaquin Cotton Oil Co. (1936) 5 Cal.2d 480, 500.) “Proof of the allegations of the complaint, which are denied, is necessary before plaintiff may recover judgment.” (Barasch v. Epstein (1957) 147 Cal.App.2d 439, 443 [reversing judgment on the pleadings in favor of the plaintiff where the defendant’s answer set up a good defense and denied the complaint’s material allegations].) 
 
Here, Plaintiff has failed to submit sufficient proof at this time for the Court to determine that Plaintiff is the owner of an undivided fifty percent interest in the mobile home. Thus, the Court cannot determine the parties’ interests in this summary proceeding and the motion is denied.
 
Additionally, because the Court cannot make a finding on this motion that Plaintiff is entitled to a right of partition, the Court cannot reach the question of the other relief sought. An appointment of a referee pursuant to Code of Civil Procedure section 873.010 is authorized only after the court has made an “interlocutory judgment that determines the interests of the parties in the property and orders the partition of the property and, unless it is to be later determined, the manner of partition.” (Code Civ. Proc. §872.720; see also Richardson v. Loupe (1889) 80 Cal. 490, 500-501.) Thus, the motion is denied in its entirety.
 
Defendant shall submit a written order to the Court that is consistent with this tentative ruling and in compliance with Rule of Court 3.1312.
 
 
 
5.         SPR-092028, Estate of Edward Callahan Lohr
 
This matter is on calendar for attorney R. James Fisher’s motion to be relieved as counsel for petitioner Dianna Kay Williams. Mr. Fisher contends that Ms. Williams has not cooperated in signing and returning a substitution of attorney and has not complied with the terms of their agreement. (See, Fisher Dec. at ¶2(1)-(2).) The motion is not opposed. The hearing was originally scheduled for July 22, 2020 but was continued to August 5, 2020 by stipulation of the parties and order of the Court.
Mr. Fisher’s unopposed motion is GRANTED. Unless oral argument is requested, the Court will sign the proposed order lodged with the Court.
 
 
 
 
 
           
            *This is the end of the Tentative Rulings* 
 
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