Civil Dept 19 - Law & Motion Calendar

May 24, 2013

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LAW & MOTION TENTATIVE RULINGS

TUESDAY, MAY 28, 2013 - 8:30 a.m.

COURTROOM 19 – Hon. Aurthur Wick

3055 Cleveland Avenue, Santa Rosa, CA 95403

Court Call is available for all Law and Motion appearances, EXCEPT parties in small claims cases and motions for claims of exemption which are mandatory appearances. To set up Court Call, please call 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, it will be necessary for you to contact Judge Wick’s Judicial Assistant by telephone at (707) 521-6729 by 4:00 p.m. today, FRIDAY, MAY 24, 2013. Any party requesting an appearance must notify all other parties of their intent to appear.

1. MCV-225227; Main Street HOA v. Kilpatrick:

This is a limited civil action, where the Plaintiff/Cross-Defendant Main Street HOA sued the Defendants/Cross-Complainants for past due assessments. In response, the Defendants/Cross-Complainants have filed a cross-action, alleging a variety of torts and statutory violations based on Plaintiff HOA attempting to collect on the alleged assessments.

Within the Cross-Complaint are claims for punitive damages. Plaintiff HOA has now moved to strike the punitive damages claims. Plaintiff HOA argues that the allegations do not form a factual basis for assessing punitive damages under CC §3294. The motion has drawn opposition. The Cross-Complainants argue that they have sufficiently pled entitlement to punitive damages under CC §3294.

To survive a motion to strike an allegation of punitive damages a plaintiff must (at a minimum) plead the ultimate facts showing an entitlement to such relief. See Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255; Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166. Under this standard, the allegations contained in the Cross-Complaint, consisting solely of the legal conclusion required by CC §3294, rather than any facts supporting that conclusion, are insufficient. See Grieves v. Superior Court, supra, 157 Cal.App.3d at p. 168; see also G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29 (pleading must contain facts to support claim of oppression, fraud or malice).

The Cross-Complaint simply avers that the Plaintiff/Cross-Defendant HOA rejected payments, and then takes the unsupported position that the actions of the HOA were oppressive, fraudulent, or malicious. Accordingly, the motion to strike is granted with leave to amend. The Defendant is to draft an order consistent with this ruling.

2. SCV-246810; Martinez v. Neema:

Motion to Quash Subpoena

On January 9, 2013 Defendant Quesenberry was served with a deposition subpoena by Plaintiff, commanding a deposition appearance on February 19, 2013.

Defendant Quesenberry has moved to quash the subpoena. Defendant objected to the subpoena on the grounds that it was not served on all parties that have appeared in the action. CCP §2025.240(a). Further, Defendant Quesenberry argues that the proposed date and length of the deposition is burdensome. Further, Defendant seeks a protective order based on Plaintiff Martinez’s alleged abuses of discovery in other cases involving the Plaintiff.

The Plaintiff has opposed, arguing that the other parties in the action have told him not to serve them with discovery documents related to Defendant Quesenberry. See Martinez Dec. Further, Plaintiff Martinez argues that Defendant Quesenberry has not supported his arguments regarding the proposed date and length. Plaintiff Martinez argues that subpoena commands attendance 53 days beyond the 10 day period enumerated in CCP §2025.270. The Plaintiff also seeks an undetermined amount of discovery sanctions.

Code of Civil Procedure §2025.240(a) is unequivocal, “[t]he party who prepares a notice of deposition shall give the notice to every other party who has appeared in the action.” CCP §2025.240(a) [emphasis added]. The Plaintiff’s argument that the other parties have waived service is not supported by admissible evidence.

Accordingly, Defendant Quesenberry’s motion to quash the subpoena is granted. Sanctions will not be issued. The Defendant is to prepare an order consistent with this ruling.

Demurrer to Answer

On March 15, 2013, the Defendant filed a Verified Answer to the Third Amended Complaint, which includes six separate affirmative defenses. The Answer was served on that same day by mail. The Plaintiff has filed a demurrer to the Answer. The Plaintiff argues that the Defendant’s responses are “uncertain” and that the affirmative defenses, save the Second, are boilerplate. The demurrer has not drawn opposition. The Plaintiff has requested judicial notice—which is granted.

The determination of whether an answer states a defense is governed by the same principles that apply in determining if a complaint states a cause of action. South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732. A demurrer to an answer applies only to the contents of the answer and to matters subject to judicial notice. For purposes of a demurrer, the allegations of the answer as true. Id., at 732. A demurrer to an answer admits all material facts pleaded in the answer and eliminates all allegations of the complaint denied by the answer. Id. at 733.

First, the Amended Answer contains twenty nine affirmative defenses. The determination of the sufficiency of the Answer requires an examination of the Complaint because its adequacy is with reference to the complaint it purports to answer. South Shore, supra, at 733.

Defendant's Answer has denied (for the most part) the allegations in the complaint, and thus for purposes of the subject affirmative defense, eliminated the allegations made by the Plaintiff.

Note that the answer must set forth facts supporting any affirmative defense “as carefully and with as much detail as the facts which constitute the cause of action and which are alleged in the complaint.” FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384. Here, the affirmative defenses are basically legal conclusions. However, whether they do state a defense in light of the factual allegations in the complaint is not specifically discussed. In any event, it appears that the First and Second Affirmative Defenses are sufficiently alleged. The Plaintiff’s documents, attached to the request for judicial notice, do not alter this conclusion. The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable. See Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 605.

Accordingly, the court will sustain the demurrer as to the Third, Fourth, Fifth, and Sixth affirmative defenses with leave to amend. The balance of the Plaintiff’s demurrer is overruled.

The Plaintiff is to draft an order consistent with this ruling.

3. SCV-250892; Cropsey v. Ensign Group:

The Plaintiff is moving for judgment on the pleadings with respect to the First, Third through Seventh, Ninth through Twelfth, Fourteenth through Sixteenth, and Eighteenth through Twentieth affirmative defenses (the Motion). The Plaintiff contends that these affirmative defenses fail to allege facts sufficient to constitute a defense to her claims. See CCP §438(c)(1)(A). The Plaintiff’s motion lists each attacked affirmative defense, and provides reasons as to why it is not supported by either the facts alleged in the operative complaint, or the facts alleged in the answer.

The Plaintiff has also requested judicial notice of the operative complaint, the date she filed her charging complaint with the Department of Fair Employment and Housing, when she received her right to sue letter, and Fair Employment and Housing Commission found it unlawful for an employer to request an employee to sign a waiver to the right to reasonable accommodation. The court grants the request as to Nos. 1-4, 7, and 9; the balance of the request is denied.

The Defendant has filed a notice of non-opposition and has asked that the subject motion be granted with leave to amend. The opposition argues that the Answer was filed prior to discovery, and prior to facts to support the Answer were discovered.

The Plaintiff responds, contending that the Defendant should be sanctioned under CCP §128.7 for pleading affirmative defenses without a factual basis. Further, the Plaintiff argues that the Defendant’s request for leave to amend fails to comply with CCP § 473(a)(1) and CRC Rule 3.1324.

There is no substantive opposition to the motion, and as such it should be granted with leave to amend. The Defendant shall have 30 days to file an amended pleading. Further, the court will deny the Plaintiff’s request to issue sanctions.

The Plaintiff is to draft an order consistent with this ruling.

4. SCV-251243; Sarasota CCM v. Western Pacific:

Moving party has failed to file a Proof of Service on the instant Application for Writ of Attachment and it is therefore dropped from the calendar. If, at the hearing, the Plaintiff can produce a Proof of Service indicating a service date that complies with CCP §1005, the hearing will be continued to a later date. See also CRC Rule §3.1300(c).

5. SCV-251605; Umpqua Bank v. Schaefer:

The Receiver’s unopposed motion to approve final report and account, discharge, exonerate bondsman and approve compensation of Receiver’s counsel is granted.

The Receiver is to draft an order consistent with this ruling.

6. SCV-252638; Gale v. Moretto:

On March 8, 2013, this Court sustained the demurrer of the Defendants as to the entire Complaint. On March 22, 2013, the Plaintiffs filed a First Amended Complaint alleging six causes of action related to the easement granted to them by the Defendants. The granted easement in question was a result of a settlement agreement entered into by the parties. The settlement called for the Plaintiffs to purchase an easement from the Defendants for approximately $14,000. The settlement was entered into in January, 2012. The Defendants provided an easement, which the Plaintiffs recorded.

Sometime after recording the easement, the Plaintiffs discovered that there was a deed of trust, held by Defendant Bank of America, which was in a superior position to the deeded easement—meaning that a foreclosure of the Deed of Trust would, theoretically, wipe out the easement. This is problematic, because the easement represents the only point of ingress and egress from the Plaintiffs’ property. The Plaintiffs allege that they have had two potential buyers walk away from offers on their property as a direct result of the easement issue.

Defendants Morretto and Conti have made a general demurrer to the First Amended Complaint on the grounds that it is completely barred by the doctrines of either res judicata and/or collateral estoppel. The Defendants argue that the previous lawsuit, which was settled, bars the instant lawsuit—as it deals with the same parties and claims which were finally decided. Plaintiffs have opposed, arguing that the lawsuit involves a new party, Defendant Bank of America, and deals with new claims related to the efficacy of the easement granted under the previous settlement.

Defendants have filed a “general demurrer” as a result any valid cause of action overcomes it. If the essential facts of some valid cause of action are alleged, the general demurrer must be overruled. See Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998 (general demurrer may be sustained “only if the complaint fails to state a cause of action under any possible legal theory.”) Indeed, “(E)rroneous or confusing labels attached by the inept pleader are to be ignored if the complaint pleads facts which would entitle the plaintiff to relief.” Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.

The First Amended Complaint alleges facts sufficient to entitle them to some relief. The gravamen of their claim is that the settlement entitled them to an easement, and the Defendants granted them an encumbered easement from an undisclosed deed of trust; whereas the gravamen of the first action was to determine the existence of the easement in the first place. Further, the Plaintiffs’ allegations that the Defendants concealed material facts, or did not properly perform under the terms of their settlement are sufficient to overcome the general demurrer. Moreover, the Plaintiffs have alleged damages that flow directly from the alleged concealment of the deed of trust. Accordingly, Defendants’ demurrer is overruled. Plaintiffs are to draft an order consistent with this ruling.

7. SCV-252746; Molica v. Amazon.Com:

Plaintiff has filed three discovery motions, with hearing dates of May 28, 2013, June 18, 2013, and July 16, 2013. Ms. Delphine Adams was appointed as the discovery facilitator. Ms. Adams reports that the Plaintiff has received supplemental and second supplemental responses, which has resolved two of the disputes.

Accordingly, the court will drop the May 28, 2013 and June 18, 2013 hearings. The court thanks Ms. Adams for her service.

8. SCV-252853; Llopis v. First Franklin:

Plaintiff has filed suit alleging six causes of action related to the purchase, financing and ultimate foreclosure of property located in Santa Rosa. Defendants have demurred arguing, that the suit is barred by res judicata and collateral estoppel. The Defendants have requested that the court take judicial notice of documents related to the underlying foreclosure, and the cases and orders which dismissed the Plaintiff’s previous lawsuits. The court will take notice as requested. The Plaintiff has not filed an opposition.

Plaintiff is attempting to revive claims that were dismissed in April 2012, and November 2010 (Sonoma County Cases SCV-250751 and SCV-247743). The instant case does not materially differ from these earlier cases, in that the facts, parties and circumstances are identical. This court sustained a demurrer without leave to amend in SCV-247743, and a dismissal was entered. The court again dismissed the Plaintiff’s claims, via demurrer, in SCV-250751 on the grounds of res judicata. Here, the same material facts were pled in both actions against the same parties. Accordingly, Defendants’ demurrer is sustained without leave to amend.

The Defendants are to draft an order consistent with this ruling.

9. SCV-252954; Harrison v. Hubrel:

The hearing on demurrer is continued to July 23, 2013 by request of the parties.

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