Aug 21, 2014

LAW & MOTION TENTATIVE RULINGS

TUESDAY, AUGUST 19, 2014 - 8:30 a.m.

COURTROOM 19 – Judge Arthur A. Wick

3055 Cleveland Avenue, Santa Rosa, CA  95403

 

Court Call is now 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) 521-6730 by 4:00 p.m., MONDAY, AUGUST 18, 2014.  Any party requesting an appearance must notify all other parties of their intent to appear.

1.  SCV-253782 Alexeev v. DeMejia:

            Parties and/or counsel may appear telephonically or in person to argue Defendant’s Motion for Summary Judgment.

 

2.  SCV-254978 Leisy v. Safeway:

               Demurrer Sustained with leave to amend.

            Motion to Strike Granted with leave to amend.

            Request for judicial notice granted.

            Plaintiff has leave to amend within 20 days of the service of the notice of entry of this order.  Defendant is to serve the notice of entry of this order within 5 days of this order.

W&I Code section 15610.07 defines elder abuse as including “[p]hysical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.”

The Supreme Court in Delaney v. Baker (1999) 20 Cal.4th 23, at 31-32, ruled that elder abuse  under W&I Code section 15657 requires a culpability greater than mere negligence and is limited to acts of egregious abuse. 

W&I Code section 15610.57(a), defines “neglect” as either “(1) The negligent failure of any person having the care or custody of an elder... to exercise that degree of care that a reasonable person in a like position would exercise”; or “(2) The negligent failure of an elder... to exercise that degree of self care that a reasonable person in a like position would exercise.”  Subdivision (b) adds that

Neglect includes, but is not limited to, all of the following:  (1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter.(2) Failure to provide medical care for physical and mental health needs....

            (3) Failure to protect from health and safety hazards.(4) Failure to prevent malnutrition or dehydration.(5) Failure of an elder or dependent adult to satisfy the needs specified in paragraphs (1) to (4), inclusive, for himself or herself as a result of poor cognitive functioning, mental limitation, substance abuse, or chronic poor health.

“Neglect” does not require heightened culpability greater than negligence but it is limited to custodial situations as set forth in section 15610.57(a).  Plaintiff alleges neither the custodial circumstances required for “neglect” nor culpability greater than negligence and therefore fails to state a cause of action for elder abuse.

            The allegations as a result also provide no basis at this point for recovering attorney’s fees.

 

3.  SCV-255142 Ananda Partners v. 101 Houseco:

This case is on calendar for three motions: (1) Defendants’ Demurrer; (2) Defendants’ Motion to Strike; and (3) Plaintiff Ananda Partners I, LLC’s Motion to Compel Attendance at Deposition.

            With respect to the Demurrer and Motion to Strike, plaintiffs do not oppose the motions as long as they are allowed an opportunity file an amended complaint.  The Demurrer and Motion to strike are GRANTED and plaintiffs shall be allowed to file an amended complaint to correct the defects in the Complaint within 30 days of this ruling.

            Plaintiff’s unopposed Motion to Compel Attendance at a Deposition is GRANTED.  Defendant Houseco Investment Trust is ordered to produce its “Person Most Qualified” for deposition along with the requested documents.  Any 5th Amendment privileges that the individual designated as the “Person Most Qualified” may personally have in response to particular questions or over specific documents are to be asserted at the deposition.  The court is expressing no opinion at this time about the validity of any 5th Amendment privilege claim that may be asserted at the deposition.  Pursuant to CCP Sec.2025.450(c)(1), defendant Houseco Investment Trust is ordered to pay monetary sanctions of $1950.00 to plaintiff Ananda Partners 1, LLC.

            Plaintiffs shall draft orders consistent with this ruling.

 

4.  SCV-255309 Voight v. Garrett Hardware:         

            This matter has been dropped by the moving party as moot.  Defendant has filed a First Amended Answer.

 

5.  MCV-214229 GCFS v. Walsh:

            Judgment Debtor Sheila Walsh is to appear and produce all monthly income and expense documents for 2014.

 

6.  SCV-254730 Statham v. Sturgeon:

            This is on calendar for Plaintiff’s motion to file a First Amended Complaint (FAC). On December 9, 2013, acting in propia persona, the Plaintiff filed and served the Complaint. The Defendant answered and filed a Cross-Complaint.  On February 18, 2014, the Plaintiff retained an attorney, who substituted into the case on February 19, 2014. The Plaintiff’s attorney contends that she attempted to get a stipulation to allow her to file the proposed FAC, however, the Defendant refused to agree. This motion followed.

The Plaintiff argues that after her attorney reviewed the Complaint, she noticed deficiencies that needed to be addressed, including the addition of a cause of action for specific performance. The Plaintiff contends that the errors need to be addressed to insure that the case is decided on its merits. The Defendant opposes, arguing that the proposed FAC alleges facts that conflict with the Complaint. Further, the Defendant contends that she does not recall the allegations in the proposed FAC.

Under CCP section 473(a)(1), amendments are left to the sound discretion of the trial court.  Judicial policy favors amendment to allow resolution of all potential claims and disputes between parties, so such motions are examined liberally.  (Nestlé v. Santa Monica (1972) 6 Cal.3d 920, 939.)  As long as the motion is timely and will not prejudice a party, it is normally an abuse of discretion to refuse to allow amendment if the denial will deprive a party of a meritorious claim or defense.  (Morgan v. Sup.Ct. (1959) 172 Cal.App.2d 527, 530; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596.)

Here, the Plaintiff’s attorney made a timely motion to file the proposed FAC. Further, the declarations submitted with the motion provide the necessary foundation for the request. The Defendant’s opposition presents no evidence of prejudice. Further, the Defendant’s argument that allegations in the proposed FAC conflict with allegations in the Complaint is not well-taken.

Accordingly, the motion is granted. The Plaintiff is directed to file and served the proposed FAC within ten days of this ruling. The Plaintiff shall draft an order consistent with this ruling.

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