Dec 11, 2017

TENTATIVE RULINGS                                        UPDATED

LAW & MOTION CALENDAR

Wednesday, December 6, 2017, 3:00 p.m.

Courtroom 19 – Hon. Allan D. Hardcastle

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, December 5, 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 this calendar.  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.         MCV-239322, Inspired Senior Living Options, Inc. v. Anderson

 

            DROPPED from calendar at the request of counsel for moving party; notice of settlement filed 11/20/17.

 

 

2.         SCV-253343, GMAC Mortgage, LLC v. E*Trade Bank

 

            This matter is on calendar for Sylvain E. Barrielle’s (“Defendant”) demurrer to HSBC Bank USA, National Association as Trustee for Deutsche Alt-A Securities Mortgage Loan Trust, Series 2007-OA5’s (“Plaintiff”) Second Amended Complaint (“SAC”) and to each cause of action stated therein, including to Quiet Title, Declaratory Relief, Reformation of the parties Deed of Trust, Specific Performance, and Equitable Indemnity.  Defendant brings this demurrer under Code of Civil Procedure sections 430.10(e), 338(d) and 337, and on the grounds that Plaintiff’s complaint fails to state facts sufficient to constitute the respective causes of action and because the causes of action are barred by the applicable statutes of limitations. 

 

            Plaintiff opposes the demurrer on several grounds.  First, Plaintiff argues, as it did in opposition to Plaintiff’s prior motion for judgment on the pleadings, that the respective statutes of limitation were legally tolled during the automatic stay imposed by Federal Bankruptcy Statutes11 U.S.C. §362 and 11 U.S.C. §108(c) and the related California Code of Civil Procedure section 356 and therefore, Plaintiff’s action is timely.  Additionally, Plaintiff argues that the statute of limitations should be equitably tolled by the Court during the three month period between the time that Plaintiff and Defendant entered into a loan modification agreement and the time of Defendant’s subsequent failure to perform under that agreement.  Finally, Plaintiff contends that the SAC alleges sufficient facts to state valid causes of action.      

 

            Defendant’s Request for Judicial Notice of Exhibits 1-5 is GRANTED.  Plaintiff’s Request for Judicial Notice Paragraphs 1-12 is also GRANTED.  Defendant’s demurrer to the Second Amended Complaint is OVERRULED as to first four causes of action in the SAC, including Quiet Title, Declaratory Relief, Reformation of the parties Deed of Trust, Specific Performance.  The demurrer is SUSTAINED, with leave to amend, as to the fifth cause of action for equitable indemnity.  Plaintiff shall have ten (10) days from the Court’s final ruling on this demurer to file third amended complaint, to amend its cause of action for equitable indemnity only.  No additional amendments may be made without express leave from the Court.   

 

            The Court adopts its prior ruling with respect to Plaintiff’s argument that the applicable statutes of limitation were legally tolled for at least 203 days under 11 U.S.C. §362 and 11 U.S.C. §108, i.e., during the pendency of the bankruptcy, plus an additional “30 days after notice of the termination or expiration of the stay under section 362.”  As the Court held in its prior ruling, the effect of Defendant’s Chapter 13 bankruptcy filing was to toll the applicable statutes of limitation on Plaintiff’s respective causes of action for a total of 203 days, or until February 17, 2013.  Code section 11 U.S.C. §362 does not apply in this case because the statute of limitations did not expire during the pendency of the bankruptcy and therefore, the statue was not tolled for an additional 30 days.  Thus, because Plaintiff’s original action was not filed until March 11, 2013, it was untimely under the tolling statutes.  Plaintiff’s SAC does not add any new or different facts and its opposition to the demurrer does not raise any new or different arguments that would change the Court’s analysis or alter its conclusion on this issue. 

 

            However, the Court finds that Plaintiff has included sufficient additional facts in the SAC such that the application of equitable tolling to the statute of limitations is warranted.  As the Court previously explained, equitable tolling “is a rule of procedure adopted by the courts” that is “designed to prevent unjust and technical forfeitures of the right to a trial on the merits…”  (Hopkins v. Kedzierski (2014) 225 Cal.App.4th 736, 745, citing McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 99; see also, Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 659 [equitable tolling is a doctrine “which operates independently of the literal wording of the Code of Civil Procedure to suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness.”].)  The doctrine of equitable tolling does not implicate any “ordinary common-law rights cognizable in courts of law,” and is solely an equitable doctrine within the sound discretion of the trial court.  (C & K Engineering Contractors v. Amber Steel Co. (1978) 23 Cal.3d 1, 9; see also, Hopkins, supra, 225 Cal.App.4th at 745.) 

 

            “[T]he effect of equitable tolling is that the limitations period stops running during the tolling event, and begins to run again only when the tolling event has concluded…[a]s a consequence, the tolled interval, no matter when it took place, is tacked onto the end of the limitations period, thus extending the deadline for suit by the entire length of time during which the tolling event previously occurred.”  (Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 369.)  The three elements necessary for equitable tolling to apply are (1) timely notice of the claim to the defendant; (2) the defendant must not be prejudiced by the application of equitable tolling; and (3) reasonable and good faith conduct by the claimant, i.e., the situation must be the product of forces beyond claimant’s control and claimant must have diligently pursued its claim.  (San Pablo Bay Pipeline Co., LLC v. Public Utilities Comm’n (2015) 243 Cal.App.4th 295, 316; see also, Hull v. Central Pathology Serv. Med. Clinic (1994) 28 Cal.App.4th 1328, 1335; Addison v. State of California (1978) 21 Cal.3d 313, 316–317.)

 

            Here, when the new allegations alleged in the SAC are accepted as true for the purposes of this demurrer and when the SAC is read with a view to substantial justice between the parties, Plaintiff has alleged sufficient additional facts in Paragraphs 18-25 to satisfy the elements for equitable estoppel of the statute of limitations.  Accordingly, the Court finds that Plaintiff’s complaint was timely and the demurrer is overruled based on its statute of limitations argument. 

 

            With respect to the demurrer under Code of Civil Procedure section 430.10(e) for failure to allege facts sufficient to state a valid cause of action, Defendant fails to cite any law or make any argument to support this proposition.  Nonetheless, the Court has reviewing the SAC and each cause of action stated therein and finds that when the property pleaded facts alleged in the SAC are accepted as true for the purposes of this demurrer and when the SAC is read as a whole, with a view to substantial justice between the parties, Plaintiff has alleged sufficient facts to state valid causes of action for Quiet Title; Declaratory Relief; Reformation of the parties Deed of Trust; Specific Performance.  Therefore, the demurrer as to these causes of action under section 430.10(e) is also overruled. 

 

            However, with respect to Plaintiff’s fifth cause of action for equitable indemnity, Plaintiff has failed to allege sufficient facts to state a valid cause of action for equitable indemnity.  “Equitable indemnity is an equitable doctrine that apportions responsibility among tortfeasors responsible for the same indivisible injury on a comparative fault basis.”  (Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1176–1177.)   “A right of equitable indemnity can arise only if the prospective indemnitor and indemnitee are mutually liable to another person for the same injury.”  (Ibid; accord, BFGC Architects Planners, Inc. v. Forcum/Mackey Construction, Inc. (2004) 119 Cal.App.4th 848, 852 [the doctrine of equitable indemnity “applies only among defendants who are jointly and severally liable to the plaintiff”]; see also, Children’s Hospital v. Sedgwick (1996) 45 Cal.App.4th 1780, 1786 [“California common law recognizes a right of partial indemnity under which liability among multiple tortfeasors may be apportioned according to the comparative negligence of each.”].)   A necessary element for equitable indemnity is “...actual monetary loss through payment of a judgment or settlement.”  (Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital (1994) 8 Cal.4th 100, 108-109; see also City of San Diego v. U.S. Gypsum Co. (1994) 30 Cal.App.4th 575, 587.)   However, “[i]t is well-settled in California that equitable indemnity is only available among tortfeasors who are jointly and severally liable for the plaintiff’s injury.”  Stop Loss Ins. Brokers, Inc. v. Brown & Toland Medical Group (2006) 143 Cal.App.4th 1036, 1040 [“California law does not permit equitable apportionment of damages for breach of contract…”].) 

 

            Here, Plaintiff’s cause of action for equitable indemnity fails because Plaintiff has not alleged an “actual monetary loss” and because Plaintiff is seeking equitable indemnity for what is alleged in the SAC as a breach of contract.  Accordingly, the demurrer on this cause of action is sustained, with leave to amend as stated above. 

 

            Plaintiff’s counsel shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule of Court, rule 3.1312.

 

 

3.         SCV-258550, Lopez v. Manley Honda

 

            This case is on calendar for Juan Lopez’s (“Plaintiff”) motion for final approval of a class action settlement and related request for attorneys’ fees.  Plaintiff brings this motion pursuant to Code of Civil Procedure section 382 and Rule of Court, rule 3.769.  Defendant Foreign Automotive dba Manly Honda (“Defendant”) has filed a Notice of Non-Opposition to the motion.

 

            Plaintiff’s motion for final approval of the class action settlement is GRANTED.  Plaintiff’s request for attorneys’ fees is also GRANTED. 

 

            1.         Final Approval of Class Action Settlement

 

            After preliminary approval, the Court determines whether a class action settlement is fair, adequate and reasonable in a final hearing, often referred to as a “fairness hearing.”  (Cal. R. Ct. 3.769(g); see also, Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1801.)  The purpose of this requirement is “the protection of those class members, including the named plaintiffs, whose rights may not have been given due regard by the negotiating parties” and to “prevent fraud, collusion or unfairness to the class…”  (Dunk, supra, 48 Cal.App.4th at 1800-1801, citing, Malibu Outrigger Bd. of Governors v. Superior Court (1980) 103 Cal.App.3d 573, 578-579; see also, Marcarelli v. Cabell (1976) 58 Cal.App.3d 51, 55.) 

 

            “The trial court has broad discretion to determine whether a class action settlement is fair and reasonable.”  (Chavez v. Netflix, Inc. (2008) 162 Cal.App.4th 43, 52, citing, Dunk, supra, 48 Cal.App.4th at 1801 [“Due regard should be given to what is otherwise a private consensual agreement between the parties” and “the court’s inquiry “must be limited to the extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion between, the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable and adequate to all concerned.”].)  “When the following facts are established in the record, a class action settlement is presumed to be fair: ‘(1) the settlement is reached through arm’s-length bargaining; (2) investigation and discovery are sufficient to allow counsel and the court to act intelligently; (3) counsel is experienced in similar litigation; and (4) the percentage of objectors is small.’”  (Chavez, supra, 162 Cal.App.4th at 52, quoting Dunk, supra, 48 Cal.App.4th at 1802.)  

 

            In this case, the aforementioned factors are met.  The settlement was reached after Plaintiff’s counsel performed sufficient investigation; conducted discovery; and engaged in arm’s-length negotiations with Defendant.  After weighing the expense, length, and uncertainty of continued litigation, as well as the likelihood of obtaining a better result after continued litigation, counsel determined that the settlement is in the best interests of the settling class.  The terms of the settlement include the following:

 

·         Defendant will stipulate to certification of a Class, for purposes of this settlement only;

 

·         The Class is defined as, “All individuals employed as Automotive Technicians by the entities doing business as Manly Honda and Manly Hyundai from March 23, 2012 until the date this settlement is approved by the Court.”

 

·         Defendant will pay a maximum to the Class Settlement of one hundred and Fifty thousand dollars ($150,000), which is referred to herein as the Gross Settlement Value (“GSV”), to be distributed to each class member based on the duration of his or her employment with Defendant;

 

·         Class Members will be paid unless they submit a valid Exclusion Form;

 

·         The Settlement Administration Costs will be paid out of the GSV.

 

·         Class Counsel will apply for, and Defendants will not oppose, attorneys’ fees and costs of up to fifty two thousand five hundred dollars ($52,500), which is thirty—five percent (35%) of the GSV; and

 

·         Class Counsel will apply for, and Defendant will not oppose an Incentive Payment of five thousand dollars ($5,000) for Plaintiff.

 

            Plaintiff’s counsel retained an experienced class administrator to effect publication of the Notice of Pendency of the Class.  Notice of the settlement was provided to all class members pursuant to the Court’s October 6, 2017 Order providing preliminary approval.  (See, Strickland Dec. at Ex. 6.)  Specifically, the class administrator mailed seventy-five (75) class member notices and as of November 13, 2017, only four (4) had been returned; one (1) additional notice was requested; and all five (5) were re-mailed.  (Ibid.)  As of November 13, 2017, there have been no opt-outs and zero objections to the settlement.  (Ibid.) 

 

            Because the factors articulated in Dunk and Chavez are met; because there is no indication of fraud, collusion or unfairness; and because the terms of the settlement appear to be fair and reasonable, Plaintiffs’ motion for final approval of the settlement agreement is granted. 

 

            2.         Request for Award of Attorneys’ Fees and Costs    

 

            Under the “substantial benefit” rule, when a class action results in the conferral of substantial benefits to the defendant (either pecuniary or nonpecuniary in nature), the defendant may be required to yield some of those benefits in the form of an award of attorneys’ fees to the successful plaintiff.  (Mandel v. Hodges (1976) 54 Cal.App.3d 596, 620–621, citing, Fletcher v. A. J. Industries, Inc. (1968) 266 Cal.App.2d 313, 318-325.)  However, “[b]ecause of the potential for fraud, collusion or unfairness, thorough judicial review of fee applications is required in all class action settlements and the fairness of the fees must be assessed independently of determining the fairness of the substantive settlement terms.  (In re Consumer Privacy Cases (2009) 175 Cal.App.4th 545, 555, citing, Dunk, supra, 48 Cal.App.4th at 1808–1809.)  In reviewing an attorney fee award in a class action settlement agreement, the trial court has an independent duty to determine the reasonableness of the award.  (Garabedian v. Los Angeles Cellular Telephone Co. (2004) 118 Cal.App.4th 123, 128; see also, Dunk, supra, 48 Cal.App.4th at 1801.) 

 

            The “reasonableness” of any fee award centers on fixing the lodestar number, which is based on a “careful compilation of the time spent and reasonable hourly compensation for each attorney ... involved in the presentation of the case.”  (See, Serrano v. Priest (1971) 20 Cal.3d 25, 48; see also, Ketchum v. Moses (2001) 24 Cal.4th 1122, 1134; Serrano v. Unruh (1982) 32 Cal.3d 621, 625.)  That figure may then be increased or reduced by the use of a “multiplier” after the trial court has considered other factors concerning the lawsuit.

 

            In this case, Plaintiff is seeking an award of fees and expenses of $52,500, which is 35% of the total GSV and is an amount negotiated and agreed to by the parties.  This amount is based on 145 hours billed by Plaintiff’s counsel at a rate of $400 per hour.  (See, Strickland Dec. at ¶¶ 43-44.)  Under the lodestar calculation, these hours equate to a fee of $58,000.  Plaintiff appears to have applied an approximate .09 negative multiplier to reach their fee request of $52,500.  Plaintiff is not seeking to recover any costs incurred in pursuing this litigation, independent of the attorneys’ fees.  Based on all the factors discussed above, the agreed to amount of $52,500 is fair and reasonable and therefore, the request for fees is also granted.

 

            Plaintiff’s counsel shall submit a written order addressing both motions to the Court that is consistent with this tentative ruling and in compliance with Rule of Court, rule 3.1312.

 

 

4.         SCV-259844, Chase v. Castillo

 

            This matter is on calendar for Defendant’s motion to vacate the trial and mandatory settlement conference dates and for leave to conduct a neuropsychological examination of Plaintiff.  Plaintiff’s motion to vacate the trial and mandatory settlement conference dates is brought pursuant to Code of Civil Procedure section 128(a)(5) and California Rule of Court, rule 3.1332(c)(3) and (4) and on the grounds that the law firm representing Defendant in this case is closing in December 2017 and new counsel will be assigned within “the next two weeks.”  Additionally, Defendant contends that Plaintiff will suffer little or no prejudice if the trial date is vacated while Defendant will incur substantial prejudice if it is not.  Defendant’s motion for leave to conduct a neuropsychological examination of Plaintiff of made pursuant to Code of Civil Procedure section 2032.310 and on the grounds that Plaintiff’s claims of post-concussion symptoms, memory loss, and his history of battling a degenerative brain condition establish “good cause” for a neuropsychological examination so that Defendant can evaluate the conditions resulting from the injury at issue here, as opposed to those that preceded the injury.

 

            Plaintiff’s motion to vacate the trial date and mandatory settlement conference is GRANTED.  Defendant has demonstrated sufficient “good cause” under Rule of Court, rule 3.1332(c)(3) and (4) based on the unavailability of Defendant’s trial counsel and the anticipated substitution of new counsel.  Thus, it is in the interests of justice that the present trial date be vacated and rescheduled once Defendant’s new counsel has been retained.   Accordingly, the January 12, 2018 trial is hereby VACATED.  A trial setting conference is scheduled on the Case Management Conference of Thursday, January 11, 2018 at 3:00 p.m. in Department 19.  Case Management Statements are due 15 calendar days prior.

 

            Plaintiff’s motion for leave to conduct a neuropsychological examination of Plaintiff is DENIED, without prejudice.  The Code provides that “[a]n order granting a physical or mental examination shall specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination.”  (Code Civ. Proc. §2032.320(d).)  Here, while the Court is generally inclined to grant the motion, in light of the fact that Defendant will be obtaining new counsel in the “next two weeks,” as well as the fact that the trial date is now vacated, any motion for a compelled neuropsychological examination under section 2032.310 should be filed on regular notice by Defendant’s new counsel.  The Court believes it is in the interests of efficiency and judicial economy for Defendant’s new counsel to determine and articulate in its motion, after meeting and conferring with Plaintiff’s counsel, the “time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination…”  (Code Civ. Proc. §2032.310(b).)

 

            Defendant’s counsel shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule of Court, rule 3.1312. 

 

5.         SCV-260678, Wise v. O’Brien

 

            CONTINUED to Friday, January 19, 2018, 1:30 p.m., pursuant to stipulation and order filed December 1.

 

 

6.         SCV-261391, Endsley v. Mr. Cooper

 

CONTINUED TO WED., JAN. 10, 2018, 3:00 P.M., COURTROOM 19, PURSUANT TO STIPULATION AND ORDER FILED DEC. 6, 2017

 

            This matter is on calendar for an Order to Show Cause why a Preliminary Injunction should not issue to extend the Temporary Restraining Order (“TRO”), which the Court granted on October 23, 2017, and to enjoin Defendant from selling the subject Real Property located at 208 Vista Court, Sebastopol, California, 95472, or attempting to sell it, or causing it to be sold, either under the power of sale in the trust deed or by foreclosure action; any other conduct adverse to Plaintiff regarding his residence and real property; or hindering Plaintiff’s ability to enjoy the fruits of their Real Property during the pendency of this action.  (See, October 23, 2017 Order to Show Cause Re: Preliminary Injunction and Temporary Restraining Order.)  Additionally, the Court ordered Defendants to appear and show cause, if any, why this preliminary injunction should not issue.  Finally, the Order stated that any opposition papers shall be filed and served no later than November 15, 2017 and any reply papers shall be served no later than November 29, 2017.  Although Defendant First American Title Insurance Company filed a Disclaimer of Interest, no other Defendant has filed an opposition addressing the issuance of the preliminary injunction. 

 

            Accordingly, based on the good cause demonstrated in Plaintiff’s ex parte application and the supporting declarations and exhibits, and because Defendant has failed to demonstrate any reason why the preliminary injunction should not issue, Plaintiff’s request for a preliminary injunction is GRANTED.  Upon Plaintiff’s posting of a $1,000 bond, a Preliminary Injunction will issue extending the TRO during the pendency of this action.  (See, Code Civ. Proc. § 529.) 

 

            Plaintiff’s counsel shall submit a written order to the Court consistent with this tentative ruling and in compliance with California Rule of Court, rule 3.1362. 

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