Feb 01, 2015


TUESDAY, JANUARY 27, 2015 - 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, JANUARY 26, 2015.  Any party requesting an appearance must notify all other parties of their intent to appear.

1.  SCV-254201 Golub v. US Security Associates:

            The hearing in this matter has been continued to the Law and Motion calendar on February 24, 2015 in Department 19.  A tentative ruling on this motion will be posted on the court’s website by 2:00pm on Monday, February 23rd.


2.  SCV-254302 Trejo v. COE:

This is on calendar for Defendant Strategic Restaurants Acquisition Co. II, LLC’s  (the Defendant) demurrer to the Amended Complaint (the Complaint). The Defendant argues that the instant Complaint is barred by the applicable statute of limitations and therefore should be dismissed. The Defendant contends that the allegations on the face of the Complaint establish that the negligence cause of action, based on the ingestion of an allegedly tainted hamburger, is barred by the two year statute of limitations. The Complaint alleges that the hamburger in question was consumed on October 28, 2010, the original complaint was not filed until September 17, 2013—a little under three years later.

The Plaintiff concedes that the original complaint was not filed within the applicable statute of limitations. The Plaintiff, however, argues that the statute of limitations was tolled because he lacked the legal capacity to make decisions, pursuant to CCP § 352. The Defendant replies, arguing that the Complaint fails to allege facts sufficient to support tolling under CCP § 352.

CCP § 352(a) provides, in pertinent part:  “If a person entitled to bring an action… is, at the time the cause of action accrued … lacking the legal capacity to make decisions, the time of the disability is not part of the time limited for the commencement of the action.”

Here, the dates alleged in the Complaint establish that it would be barred by the two year statute of limitations for personal injury actions. That being said, the Complaint sufficient alleges facts that when construed liberally, demonstrate that the statute may have been tolled due to his lacking the legal capacity to make decisions. The Complaint alleges that he was a near invalid for nine months after allegedly consuming the subject hamburger. (See Complaint, para. V.) The Plaintiff further alleges that his disability[1] continued until “within a month or two of the filing of this action….” (Id. para. XV.) In determining whether litigant was lacking capacity so as to prevent running of statute of limitations, the question to be resolved is whether the Plaintiff was sufficiently aware of nature or effects of his acts to be able to comprehend such business transactions as the hiring of an attorney and instigation of legal action, and if he was so aware then statute would begin to run against him. (See e.g. Feeley v. Southern Pacific Transportation Co. (1991) 234 Cal.App .3d 949.) Further, this tolling provision is applicable when the plaintiff's disability is caused by wrongful act of defendant, and tolling continues until plaintiff is restored from his disability. (Id.) Thus, the Defendant’s contention that CCP § 357 bars reliance on CCP § 352 tolling is misplaced. Note, in determining whether litigant was so lacking the legal capacity to make decisions so as to prevent running of statute of limitations, is a question of fact to be resolved by the fact finder. (See Hsu v. Mt. Zion Hospital (1968) 66 Cal.Rptr. 659.)

The Complaint alleges that the Plaintiff was rendered incapable of caring for himself, and lacked capacity to make decisions regarding the instant lawsuit. The allegations are construed liberally in favor of the Plaintiff, and support CCP § 352 tolling.

The Defendant also contends that the Complaint fails to allege facts to indicate liability on behalf of the moving Defendant. The court disagrees. The Complaint alleges facts sufficient to place the Defendant on notice of the negligence claim against it.

Accordingly the Defendant’s demurrer is overruled. The Plaintiff shall draft an order consistent with this ruling.


3.  SCV-255835 David v. St. Joseph Health System:

            This is on calendar for the Defendants’ demurrer to the Complaint. The Defendants contend that the Plaintiff has failed to alleged facts sufficient to support his claim under the CC § 56.36(b), the Confidentiality of Medical Information Act (the CMIA). In particular, the Defendants argue that the Complaint fails to allege facts with particularity, as required when pleading a statutory cause of action. Further, the Defendants argue that the negligence cause of action fails to allege any actual injury or causation. The Defendants also attack the constitutional privacy claims, arguing that the Plaintiff has not alleged an egregious breach of privacy—rather the Complaint only provides conclusory allegations related to the alleged breach. Lastly, the Defendants contend that the Plaintiff has failed to allege facts sufficient to support a public disclosure of a private fact. The Defendants seek judicial notice of two documents In support of the instant demurrer: (1) a document submitted by St. Joseph’s to the Attorney General with respect to data breaches; and (2) a news report relating to a data breach.

The Plaintiff opposes, arguing that the CMIA claim does not need to be plead with particularity. Further, the Plaintiff argues that Complaint adequately alleges a cause of action for negligence. With respect to the common law privacy claim, the Plaintiff contends that he need not allege an “egregious” breach, and that the allegations in the Complaint properly plead a breach. The Plaintiff objects to the Defendants’ request for judicial notice.

The Defendants request for judicial notice is denied. A news article and the Defendants’ own documents are not the proper subject of judicial notice.

With respect to the Second Cause of Action, the Plaintiff has failed to allege the CMIA claim with the requisite particularity. The Plaintiff’s contention that he need not plead this statutory claim with particularity because it is not claimed against a governmental entity is misplaced. As a general rule a statutory cause of action must be pleaded with particularity, regardless of the identity of the defendant. (See Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790; see also Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 809.) Therefore, general allegations will not suffice. The Complaint in question does not meet the heightened pleading standard. The Complaint simply restates the elements of a CMIA cause of action, but provides no particularity.

The Defendants’ demurrer to the negligence cause of action does not fare as well. It is well-settled that a negligence cause of action may be generally pled. While this lax pleading standard does not excuse reliance on legal conclusions (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527), it does permit broad factual allegations. Here, the Complaint does allege facts sufficient to allege a negligence claim, including facts that he was injured and suffered “emotional distress.”  

With respect to the common law privacy claims contained in the First Cause of Action, the allegations within the Complaint are not sufficient to support that cause of action. To state a cause of action for an invasion of privacy in violation of the state constitutional right to privacy the Plaintiff must establish each of the following: (1) a legally  protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy. Further, an invasion of privacy must be one that would be offensive and objectionable to a reasonable person. With respect to the seriousness of the invasion: “[A]ctionable invasions of privacy must be sufficiently serious in their nature, scope, and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right. The extent and gravity of the invasion is an indispensable consideration in assessing an alleged invasion of privacy.” (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 37.) The Complaint simply fails to present any facts that would allow a reasonable analysis of the nature, scope, and actual or potential impact of the alleged breaches. The Complaint alleges that the breach involved the unauthorized viewing of private health and medical information—but fails to allege facts that indicate the “extent and gravity.” While it is unnecessary to allege such facts with particularity, it is necessary to allege facts to support this element.

Further, a public disclosure of private facts requires that the disclosure be to “the public in general or to a large number of persons as distinguished from one individual or a few.” (See Porten v. University of San Francisco (1976) 64 Cal.App.3d 825, 828 citing Schwartz v. Thiele (1966) 242 Cal.App.2d 799, 805.) The Complaint fails to allege that the private medical records were so viewed.

Accordingly the demurrer to the First and Second Causes of Action are sustained, with leave to amend. The demurrer to the Third Cause of Action is overruled. The Defendant is to draft an order consistent with this ruling.


4.  SCV-256413 Serkes v. TD Service Company:

            The hearing in this matter has been continued to the Law and Motion calendar on March 10, 2015 in Department 19.  A tentative ruling on this motion will be posted on the court’s website by 2:00pm on Monday, March 9th.


5.  MCV-230834 Campbell v. Davis:

            This is on calendar for Plaintiff’s motion to set aside the judgment for costs against her. The Plaintiff contends that the Defendants did not provide enough time for her to file a motion to tax or strike the costs prior to the Defendants starting collection efforts.

The Defendants oppose, arguing that the Plaintiff failed to file a motion to tax costs within 15 days of the service of the memorandum of costs, and therefore the judgment cannot be set aside. The Defendants requests for judicial notice is granted.

On May 12, 2014 the case was voluntarily dismissed with prejudice by the Plaintiff. There is no indication whether a notice of dismissal was served on the Defendants, however, the file reflects a memorandum of costs filed on June 4, 2014. The Plaintiff contends that she was not provided the requisite amount of time to file a motion to strike or tax the costs prior to it becoming a judgment.

CRC Rule 3.1700(b)(1) provides: “Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013.” Assuming that the Plaintiff was served the memorandum of costs, her failure to file a timely motion is fatal to her attempt to have that judgment set aside. That being said, the Defendants have not provided proof that the memorandum of costs was actually served on the Plaintiff.

Accordingly, if by the time of the hearing the Defendants provide a copy of their proof of service of the memorandum of costs on the Plaintiff to the court, the instant motion will be denied. If however, the Defendants fail to produce a copy of the proof of service of the memorandum by the time of the hearing, the motion will be granted. The parties are ordered to appear.


6.  SCV-247137 Capri Creek v. Etter & Sons:

This is on calendar for Defendant/Cross-Defendant/Cross-Complainant AAA Energy Systems’ (AAA) motion to compel the depositions of Mark Haddix, Janine Johnson, Nicole Koski, Belinda Ramirez, Kirby Sack, Dana Sack, and individuals identified in those depositions pertaining to Mark Haddix’s involvement at the subject Property, and to reopen discovery for that limited purpose. This motion arises out of the alleged representations by Plaintiff’s counsel regarding Mr. Haddix’s relationship with the Plaintiff prior to his engagement by Plaintiff’s counsel in 2011. AAA contends that Plaintiff’s counsel misrepresented to it that Mr. Haddix was a retained consultant between 2008-2011—this representation, AAA alleges, was incorrect. AAA argues that it treated Mr. Haddix (and derivative discovery) as privileged based on the Plaintiff’s representations. AAA contends that it was not fully advised of Mr. Haddix’s role until November 2014. Despite meet and confer efforts, the parties were not able to resolve the instant dispute.

AAA requests judicial notice of this court’s trial order. The unopposed request is granted.

The Plaintiff opposes, arguing that AAA’s failure to obtain the requested discovery is its own fault on account of its failure to diligently pursue discovery. The Plaintiff argues that the parties AAA seeks to depose have been known for years, and that it has already produced the documents sought by AAA. The Plaintiff further contends that the parties have been deposed regarding Mr. Haddix’s role, and that AAA will not be prejudiced.

On motion a court may allow discovery after the “cut-off.” (See CCP § 2024.050(a).) In exercising its discretion to grant or deny the motion, the court must take into consideration any relevant matter, including the following: (1) The necessity and reasons for the additional discovery sought; (2) The diligence or lack of diligence by the party seeking discovery, and the reasons why the discovery was not completed or the discovery motion heard earlier; and (3) Whether permitting the discovery or granting the discovery motion will likely prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar or prejudice any party.

Here, the Plaintiff fails to address the salient issue—namely that AAA was led to believe that Mr. Haddix was a retained expert between 2008-2011. This belief was a direct result of the Plaintiff’s representations, which were apparently incorrect. It is troubling that the Plaintiff allowed AAA to act under this impression and then once the fact came out that Mr. Haddix was not actually retained between 2008-2011 that the Plaintiff did not seek to ameliorate the resulting prejudice. Instead, the Plaintiff relies on a diligence argument—one that rings hollow given AAA’s misapprehension which was guided by the Plaintiff. It appears that AAA relied on the Plaintiff’s representations, and that reliance has prejudiced its discovery efforts. In particular, it felt compelled not to invade the privilege that would be attendant to the claimed retention of Mr. Haddix.

Accordingly, the court does find that there is good cause to reopen discovery to allow AAA to depose the individuals identified in its notice. The reopened discovery is limited in scope to Mr. Haddix’s involvement in the project prior to becoming a retained expert. Further, discovery is only reopened until February 20, 2015. The parties are ordered to meet and confer to arrive at mutually acceptable dates to have the proposed deponents sit for deposition.  Given the limited time frame and scope of discovery, the court finds that it should not prevent the case from going to trial as scheduled. Further, AAA is awarded discovery sanctions in the amount of $2,160.  AAA is to draft an order consistent with this ruling.


7.  SCV-254794 Weeck v. Stewart:

            This is on calendar for  Cross-Defendant Weathertight USA’s (Weathertight) motion to determine that its settlement with the Plaintiffs was in “good faith” pursuant to CCP § 877.6. By terms of the settlement, Weathertight will pay the Plaintiffs $ 3,500 in exchange for a full release.

Defendant/Cross-Complainants/Cross-Defendants Stewart & Sachs opposes the motion, arguing that the settlement does not meet the so-called Tech-Bilt factors. Further, Stewart contends that the notice and motion are deficient pursuant to CRC Rule 3.1382. Stewart contends that the notice fails to “list each party and each pleading or portion thereof affected by the settlement, including the date on which the affected pleading was filed.”

Stewart’s objection to the defective notice is sustained. CRC Rule 3.1382 provides that: “The notice of motion must list each party and each pleading or portion thereof affected by the settlement, including the date on which the affected pleading was filed.” The use of the term “must” implies that this is a mandatory requirement. Weathertight’s notice in this matter was not drawn in conformity with the mandatory requirements of CRC 3.1382.

Accordingly, Weathertight’s motion is denied without prejudice. Stewart shall draft an order consistent with this ruling.


8.  SCV-255353 Mueller v. Shacklett:

            Defendant’s motion for evidentiary sanctions, attorney fees, and order to show cause is dropped. On December 2, 2014 the entire action was dismissed. As a result of the dismissal, the court no longer has jurisdiction to rule on the instant motion.   

9.  SCV-255449 Sonoma v. NCA Capital:

            Attorney Sax’s motion to be relieved as counsel is granted.


10.  SCV-255891 Frazier v. Mace:

            This is on calendar for Plaintiffs’ motion for protective order. By this motion, the Plaintiffs are seeking a protective order to prevent the Defendant from deposing and demanding documents from the civil engineering firm employed by the Plaintiffs to help them obtain permits from the County of Sonoma. The Plaintiffs contend that the discovery sought by the Defendant will not lead to admissible evidence, and will result in an unreasonable burden.

The Defendant opposes, arguing that the subject subpoena will potentially lead to admissible evidence that is relevant to the allegedly defamatory statements. The Defendant claims that the discovery is relevant to establishing the truth of the allegedly defamatory statements, and therefore should not be blocked by a protective order. Further, the Defendant contends that the discovery may lead to evidence to support a cross-complaint for nuisance.

The gravamen of the instant action involves allegedly defamatory statements made by the Defendant, specifically: (1) Frazier brings in trout illegally; (2) Frazier erects deadly fencing in the approach path for an airport; (3) Frazier does not like that he cannot put people in harm’s way; (4) Frazier acts with reckless disregard for public safety by erecting of a fence across a runway’s safety overrun. The Complaint alleges that these statements were made on various internet outlets including Facebook and Craigslist. The discovery subject to this dispute is a subpoena to Huffman Engineering & Surveying seeking PMK depositions and documents related to work performed by the firm for the Plaintiffs.

Here, the discovery is relevant and directly relates to both the allegations in the Complaint, and the allegations in the Cross-Complaint. The proposed deponent and the documents may lead to admissible evidence regarding the legality of the fly fishing operation and/or the placement of the fence. This is consistent with the policy to apply the “relevance to the subject matter” and “reasonably calculated to lead to discovery of admissible evidence” standards liberally. Any doubt is generally resolved in favor of permitting discovery, particularly where the precise issues in the case are not yet clearly established. (See Colonial Life & Acc. Ins. Co. v. Sup.Ct. (Perry) (1982) 31 Cal.3d 785, 790, fns. 7–8.)

Further, a deponent seeking a protective order will be required to show that the burden, expense, or intrusiveness involved in the discovery procedure clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. (Emerson Elec. Co. v. Grayson (1997) 16 Cal. 4th 1101, 1110.) Here, the Plaintiffs have not made such a showing—indeed the deponent has not objected to the subpoenas in question. The Plaintiffs present no evidence of the burden or expense of complying with the subpoena. The only evidence submitted by the Plaintiffs in seeking this protective order is a declaration from Mr. Zeldin, co-counsel for the Plaintiffs, which does not provide any evidence in support. Notably absent is any evidence from the deponents themselves indicating the burden the subpoena would have on them.

Accordingly, the motion is denied in its entirety. Since neither party seeks sanctions, the court will not impose them. The Defendant shall draft an order consistent with this ruling.


11.  MSC-183034 Autumn Hills v. Moran:

            First, defendant requested to continue the “trial” in this matter, which request was granted.  Technically, the request was to continue the hearing on plaintiff’s Motion to Enforce Small Claims Agreement and for Entry of Judgment thereon.  If plaintiff timely paid its filing fee of $120, the motion is granted.  If timely payment was not made, the filing of the motion is ordered stricken.  Plaintiff’s request for judicial notice is granted.  Sufficient evidence has been submitted to this court to sustain a finding of a breach of the subject settlement agreement.  Judgment is ordered in favor of plaintiff.

[1]The past version of CCP § 352 tolled causes of action based on “insanity.” The most recent version substitutes the phrase “lacking the legal capacity to make decisions” in place of “insanity.” When the court uses the term “disability” it is referring to “lacking the legal capacity to make decisions.”

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