Oct 19, 2017



Wednesday, October 4, 2017, 3:00 p.m.

Courtroom 18 – Hon. René Auguste 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) 521-6730, and all other opposing parties of your intent to appear by 4:00 p.m. today, Tuesday, October 3, 2017.  Parties in small claims cases and motions for claims of exemption are exempt from this requirement.


PLEASE NOTE:  The court no longer provides Court Reporters for motion hearings.  If they wish, the parties may confer and arrange for one of the parties to bring a privately retained Certified Shorthand Reporter to serve in the matter.



1.         SCV-251555, Elie v. JPMorgan Chase Bank, N.A.


            Plaintiff’s motion to continue trial is denied.


            Defendants shall submit an order consistent with this ruling.



2.         SCV-258184, Hardister v. Bayview Loan Servicing, LLC


            DROPPED from calendar; dismissal of entire action filed 9/22/17.



3.         SCV-258979, A.G. v. Summerfield Waldorf School and Farm


            Motion granted, in part.


            Defendant moves to compel an independent medical examination of the minor Plaintiff, A.G.  A.G. was allegedly sexually abused at age four in a school bathroom at Defendant Summerfield Waldorf School and Farm.  Plaintiff contends she has sustained significant physical, mental and emotional injuries from the incident which will have lasting, lifelong effects.


            Code of Civil Procedure section 2032.020 sets forth three categories of persons subject to mental examinations.  Specifically, the Code states that “[a]ny party may obtain discovery, subject to the restrictions set forth in Chapter 5…by means of a physical or mental examination of (1) a party to the action, (2) an agent of any party, or (3) a natural person in the custody or under the legal control of a party, in any action in which the mental or physical condition…of that party or other person is in controversy in the action.  (Code Civ. Proc. § 2032.020(a).)  Here, there is no dispute that Plaintiff’s mental condition is in controversy in this action and that Defendant should be permitted to conduct an independent mental examination of Plaintiff.  (See, Vinson v. Superior Court (1987) 43 Cal.3d 833, 839 [“a party who chooses to allege that he [or she] has mental and emotional difficulties can hardly deny his [or her] mental state is in controversy.”].)  Therefore, Defendant’s motion is granted, in part.


            However, to the extent that Defendant seeks an order compelling Plaintiff’s parents, caregivers, and/or teachers to submit to an interview and/or complete questionnaires as part of that process, the motion is denied.  (See, Roe v. Superior Court (2015) 243 Cal.App.4th 138, 145 “[Nothing in section 2032.020 contemplates a ‘collateral interview’ of a minor’s parents as part of a mental examination of a party who is a minor.”]; see also, Reuter v. Superior Court (1979) 93 Cal.App.3d 332, 342-343 [“many different parties may be the main influence in any particular person’s mental state--his parent, his priest, his teacher, his Little League coach” and [former] Section 2032 does not create a power broad enough to allow the court to order all these parties to submit to a battery of tests to determine the extent of their influence on a child’s mental state merely on a psychiatrist’s declaration that he needs them.”].)


            Additionally, pursuant to Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 270, fn. 9, the exam shall be limited to the following testing specified in Dale Siperstein’s declaration, unless the parties agree otherwise:


·         Wechsler Abbreviated Intelligence Scale or Wechsler Intelligence Scale for Children V

·         Trauma Symptom Check-List for Young Children

·         Children’s Depression Inventory

·         Robert’s Apperception Test

·         Rorschach Performance Based System

·         Projective Drawing Tasks

·         Children’s Sentence Completion Technique


            If any of the above tests can only completed with the input of parents, teachers, and/or caregivers, those tests shall not be allowed.


            Based on the foregoing, the court has limited the scope of the examination to specific tests and has prohibited the questioning/interviewing of the parents, caregivers, and teachers.  Furthermore, in light of A.G.’s age and the nature of the examination, the court finds A.G.’s mother is permitted to attend, but not participate in the examination of A.G.  (Golfland Entertainment Centers, Inc. v. Superior Court (2003) 108 Cal.App.4th 739, 748.)  Therefore, the court finds it unnecessary to obtain a more specific description of the nature and scope of the “clinical interview” of A.G.


            As Defendant has already proposed in the stipulation, pursuant to Code of Civil Procedure section 2032.530(a), “[t]he examiner and examinee shall have the right to record a mental examination by audio technology.”  And, Plaintiff shall have a right to the documents and reports as set forth in Code of Civil Procedure section 2032.610.


            Defendant shall submit an order consistent with this ruling.



4.         SCV-259232, Morris v. Marshall


            DROPPED from calendar at the request of counsel for moving party.



5.         SCV-259963, Rodriguez v. Moga Transport, Inc.


            CONTINUED to Wednesday, November 1, 2017, 3:00 p.m., at the request of the Discovery Facilitator.



6.         SCV-260814, County of Sonoma v. Gustely


            The court finds the County has established a prima facie case entitling it to entry of default judgment pursuant to Code of Civil Procedure section 585(b) and a permanent injunction.  The County’s request for judicial notice of court records in this case is granted.


            Per the evidence, Defendant was served with the summons and complaint but failed to file a responsive pleading.  His default was therefore entered on August 8, 2017.  Additionally, the court granted the County’s motion for preliminary injunction on July 11, 2017, which required Defendant to correct within 30 days the alleged violations of county building, drainage, grading, encroachment and nuisance codes and to remove all travel trailers from the property.  Defendant has removed the travel trailers but has failed to correct the other violations.


            The County has proved it is entitled to damages based on the Abatement Order already in place against Defendant for costs incurred by the County before the injunction.  However, the court finds the complaint fails to specifically allege, and therefore put Defendant on notice of the additional $1,752 in abatement costs incurred since the Abatement Order issued. 


            Per Code of Civil Procedure section 580(a), “[t]he relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint.”  “The courts have consistently held section 580 is an unqualified limit on the jurisdiction of courts entering default judgments.  As a general rule, a default judgment is limited to the damages of which the defendant had notice.  Further, the courts have reaffirmed the language of section 580 is mandatory.  Therefore, ‘in all default judgments the demand sets a ceiling on recovery.’” (Finney v. Gomez (2003) 111 Cal.App.4th 527, 534, footnotes omitted.)


            Here, the complaint generally alleges the County is seeking abatement costs pursuant to the County Code but fails to state or estimate the specific amount of damages sought.  Defendant was on notice of the costs identified in the Abatement Order but the complaint fails to allege at least an estimate of the amount of additional abatement costs the County anticipated it would incur as damages for the nuisance.  Therefore, the $1,752 in abatement costs is in excess of this court’s jurisdiction to award.


            In addition, the County seeks a total of $20,852.50 in attorney fees based on a total of 69.75 hours at $254 per hour and 12.25 hours at $256 per hour.  The court finds 33 hours is a more reasonable amount of time expended in this action.  The facts and arguments in this case have remained essentially the same throughout therefore the motion practice did not require extensive or novel research and writing.  The County did not provide a breakdown of hours spent on each task or identify those incurring the increased hourly rate, but the court has applied its knowledge and experience to assign the following hours to the tasks: (1) 5 hours drafting the complaint; (2) 12 hours for the ex parte application for the TRO; (3) 6 hours for the motion for preliminary injunction; (4) 5 hours for this motion; and (5) 5 hours for miscellaneous tasks such as drafting notice letters, investigation, etc.  Accordingly, the court will award $8,392 in attorney fees based on 28 hours at $254 per hour and 5 hours at $256 per hour.


            The Abatement Order also imposed penalties accruing at $45 per day, which the County seeks to add to the default judgment.  Based upon the facts of the case as described in Plaintiff’s moving papers, the court exercises its discretion and reduces the amount of penalties to $20 per day.  Therefore, the total amount in monetary penalties awarded is $5,020.


            The court finds the following changes shall be made to the proposed default judgment and permanent injunction submitted by the County:


·         Page 1, line 18: June 28 shall be changed to June 23.

·         ¶2 shall state: “Defendant, and/or his successors in interest, and each of their agents, servants, employees, and persons acting on their behalf or in concert with them, shall abate all violations of the building, grading and drainage, and encroachment code regulations as described in Paragraph 1 above, and as set forth in the Sonoma County Code Chapters 7, 11, 15,and 19 by:” [The court deleted the “within 30 days of the mailing of the Notice of Entry of Default Judgment” requirement. This appears to conflict with ¶2 G., which gives defendant 30 days from obtaining the permit to complete the work.].

·         ¶2C. shall state: “A complete permit application to abate each of the violations must be filed within ten (10) days from the mailing of Notice of Entry of Default Judgment.” [This is correcting what appears to be a typographical error.].

·         Delete ¶5 [The court finds no basis for imposing an indemnity clause in the judgment.].

·         ¶7, line 24 shall reflect a revised total in costs awarded of $17,153.79.

·         Delete subdivision (b) of ¶7.

·         ¶7(d) shall state: “County Counsel’s reasonable attorney fees in the amount of $8,392.00.”

·         ¶8 shall be revised to reflect penalties of $20/day totaling $5,020.

·         ¶9, line 11 shall reflect a revised total amount of $22,173.79.

·         ¶10, shall state: “If the County does not receive payment as set forth in paragraphs 7-9, interest shall accrue at the legal rate of ten percent (10%) per annum. In addition, if the County does not receive payment as set forth in paragraph 7, any of the above identified costs (excluding penalties) may be assessed against the Property and may be collected in the same manner as taxes, as provided by Government Code section 25845 and Sonoma County Code section 1-7(b).” [County Code section 1-7.1 does not provide for penalties to be collected as a special assessment against the property.].

·         Delete ¶11 [CCP §664.6 does not apply since this is a default judgment not a stipulated judgment.].

·         Delete ¶12 [The County will need to separately establish its right to any such fees and costs in those later proceedings if they occur.].


The County shall submit an order consistent with this ruling.



7.         SCV-260980, Wray v. U.S. Bank, N.A.


            Motion granted.


            Defendant Bank of America, N.A (“BANA”) moves to strike Plaintiffs’ complaint pursuant to Code of Civil Procedure section 425.16.  Defendant U.S. Bank, N.A., individually and as Trustee, of and for, BCAT 2016-18TT joins in the motion.


            Plaintiffs have not filed any opposition, but after BANA filed its anti-SLAPP motion, Plaintiffs filed an amended complaint.  However, allowing Plaintiffs’ amended complaint to stand “ ‘would completely undermine the statute by providing the pleader a ready escape from section 425.16's quick dismissal remedy.  Instead of having to show a probability of success on the merits, the SLAPP plaintiff would be able to go back to the drawing board with a second opportunity to disguise the vexatious nature of the suit through more artful pleading. This would trigger a second round of pleadings, a fresh motion to strike, and inevitably another request for leave to amend.’ [Citation.]” (Salma v. Capon (2008) 161 Cal.App.4th 1275, 1294.)  Accordingly, the court strikes the amended complaint and proceeds to rule on the unopposed special motion to strike the original complaint.


            This is Plaintiffs’ third action in this court regarding their home foreclosure.  The two underlying actions were both dismissed at the demurrer stage.  Plaintiffs appealed both dismissals.  The appellate court affirmed the trial court in one case and dismissed the appeal as untimely in the second case.  Plaintiffs now allege eleven causes of action in this new case.  The allegations all flow from Plaintiffs’ assertion that the Defendants never obtained any right or interest in Plaintiffs’ property in the first place. Plaintiffs allege BANA intentionally mislead the court in the two prior cases by requesting judicial notice of false, recorded instruments that purported to demonstrate BANA’s interest in title to the subject property.  According to Plaintiffs, Defendants’ dishonesty perpetrated a fraud on Plaintiffs, denied them a fair adversarial hearing and resulted in the foreclosure sale. 


            “In evaluating an anti-SLAPP motion, the trial court first determines whether the defendant has made a threshold showing that the challenged cause of action arises from protected activity. [Citation.] Under Code of Civil Procedure section 425.16 ‘[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech ... shall be subject to a special motion to strike ....’ (Code Civ. Proc., § 425.16, subd. (b)(1).) ‘A cause of action “arising from” defendant’s litigation activity may appropriately be the subject of a section 425.16 motion to strike.’ [Citation.]” ‘Any act’ includes communicative conduct such as the filing, funding, and prosecution of a civil action. [Citation.]” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056, citations omitted.) “If the court finds the defendant has made the threshold showing, it determines then whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Ibid.)


            Here, the court finds BANA has made the threshold showing that the causes of action arise from protected petitioning activity.  Plaintiffs’ claims are based on BANA’s court filings and its alleged acts during litigation in the two underlying cases.  The court further finds that Plaintiffs have failed to demonstrate a probability of prevailing on the merits.  First, Plaintiffs have not filed any opposition to this motion.  Second, based on the allegations in the complaint and BANA’s arguments, Plaintiffs cannot meet their burden because their claims are barred by the litigation privilege (Civ. Code § 47).


            As explained in JSJ Ltd. Partnership v. Mehrban (2012) 205 Cal.App.4th 1512, 1522:


“The litigation privilege under section 47 is ‘ “an ‘absolute’ privilege, and it bars all tort causes of action except a claim of malicious prosecution.” [Citation.]' (Flatley [v. Mauro,] supra, 39 Cal.4th p. 322 [46 Cal.Rptr.3d 606, 139 P.3d 2].) ... [¶] The privilege in section 47 is ‘relevant to the second step in the anti-SLAPP analysis in that it may present a substantive defense plaintiff must overcome to demonstrate a probability of prevailing. [Citations.]’ [Citation.]” (Rohde v. Wolf, supra, 154 Cal.App.4th at p. 38, 64 Cal.Rptr.3d 348.)


            Defendants’ filing of pleadings with the trial court and court of appeal and the oral arguments they made before the courts are absolutely privileged under Civil Code section 47.  Plaintiffs have failed to overcome this substantive defense to their claims.  Furthermore, Plaintiffs have submitted no evidence showing Defendants acted with malice in recording the notice of default, notice of trustee’s sale, etc. during the non-judicial foreclosure process.  Therefore, the common interest privilege under Civil Code section 47(c)(1) defeats any claims relying on the recording of those documents.  (Kachlon v. Markowitz (2008) 168 Cal.App.4th 316, 341.)


            The allegations against BANA are barred by res judicata, which provides another basis for concluding that Plaintiffs are unable to demonstrate probability of prevailing on their claims against BANA.  Plaintiffs’ claims are an attempt to re-litigate those claims already dismissed with prejudice in the previous case (“Case No. 1,” SCV-253008).  BANA was a party to Case No. 1 and argues the instant action focuses on the same property, involves the same underling loan, and attempts to generally invalidate the rights of the foreclosing parties to foreclose on Plaintiffs’ property.


            In sum, Plaintiffs’ first amended complaint filed 9/21/17 is stricken and Defendants’ anti-SLAPP motion is granted.


            Defendants shall submit an order consistent with this ruling.



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