Mar 31, 2015


TUESDAY, MARCH 24, 2015 - 8:30 a.m.

COURTROOM 19 –Judge Arthur 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 them 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, MARCH 23, 2015.  Any party requesting an appearance must notify all other parties of their intent to appear.


1.  SCV-255130 White v. Mayacama:

This is on calendar for Defendants Mayacama Golf Club, LLC and Jonathan Wilhelm’s (the Defendants) motion for summary judgment, or in the alternative, motion for summary adjudication (the Motion). The Defendants seek summary judgment on the grounds that the Plaintiff voluntarily assumed the risk that return of his deposit could take a considerable amount of time. In the alternative, the Defendants move for summary adjudication as to each of the separate causes of action on the grounds that one or more of the elements of those causes of action cannot be established.

Plaintiff Timothy White opposes the motion contending that disputed facts as to each of the causes of action preclude summary judgment, or adjudication. In particular, the Plaintiff relies on a provision in the agreements between the parties which provides:

The Club reserves the right to modify the Membership Plan Documents, provided that the modification, other than those which the Plan reserves or give the right of the Club to make or permits the Club to determine in its discretion, may not increase the maximum number of members or materially adversely affect use privileges or change members’ right to repayment of the membership deposit without the affected member’s consent or giving the affected members a right to rescind.


Defendant’s Exhibit A, pg. 3

Based on this language, the Plaintiff contends that a triable issue of fact exists as to whether his right to repayment of his deposit was “adversely affected.” The Defendants reply, arguing that the contract term relied on by the Plaintiff is not applicable to the creation of residential memberships, because the creation of the memberships was contemplated in the agreements made with the Plaintiff. Thus, the Defendants contend that the limiting language cited above does not apply when the Defendant Club created the residential memberships.

Summary Judgment – Assumption of Risk

The Defendants seek summary judgment on the basis of the assumption of risk doctrine, arguing that the Plaintiff was aware of the risks of losing his deposit. The Defendants’ argument is misplaced. The assumption of risk doctrine is an affirmative defense to a tort action. Under the assumption of risk doctrine, the defendant is relieved of a duty of care to protect the plaintiff from particular risks. (See generally Knight v. Jewett (1992) 3 Cal.4th 296.) Here, the Plaintiff contends that the Defendants breached provisions of the membership agreement—an action that would not be covered under the assumption of risk doctrine. Put another way, the Plaintiff cannot assume the risk that the Defendants will not honor their contractual obligations. The Defendants cite no controlling legal authority for their position that the assumption of risk doctrine would apply in a breach of contract action.

First Cause of Action for Breach of Contract

The gravamen of the Plaintiff’s case is that the Defendants have taken actions that have delayed his right to repayment of his deposit, and therefore “changed [his] right to repayment.” The Plaintiff cites to a single example of the actions taken by the Defendants—the creation of the residential memberships—that he contends breached his agreement because he was not asked to consent to the creation of this membership class, or provided an opportunity to rescind. The question, for purposes of this motion, becomes: whether the creation of the residential memberships changed the Plaintiff’s right to repayment? The Plaintiff offers evidence that once the Charter members rolls were full, deposits would be refunded on a 1:1 basis with newly minted Charter members. (Dec. White ¶ 1.) With the new Residential membership, the ratio is 1:10. (Id. at ¶ 3.)

Moreover, the undisputed facts establish that the Defendant Club had the contractual right to “offer other memberships and use privileges….” (UMF No. 7.) Further, the undisputed facts establish that when the Defendant Club had reserved “the right to…create a separate class of equity or non-equity membership….” (UMF 12.)

Proper interpretation of a contract is a legal issue decided by the court. Indeed, extrinsic evidence however, that amounts to “a statement of what [each witness] personally believed the agreement of the parties to be,” is “immaterial” to the proper interpretation of an agreement. (Brant v. California Dairies, Inc. (1935) 4 Cal.2d 128, 133; see Morrow v. Los Angeles Unified School Dist. (2007) 149 Cal.App.4th 1424, 1444 [witness's “opinion as to the meaning and legal effect of a contract” was inadmissible as to interpretation of contract]; Achen v. Pepsi–Cola Bottling Co. (1951) 105 Cal.App.2d 113, 123 [interpretation of contract is “not controlled in any sense by what either of the parties intended or thought its meaning to be”].) Where, as here, there is no conflict in competent extrinsic evidence, the interpretation of a contract “becomes solely a judicial function” (See Scheenstra v. California Dairies, Inc. (2013) 213 Cal.App.4th 370, 390 (Scheenstra )). Further, when interpreting a contract, the court must read the entire instrument together. (California National Bank v. Woodbridge Plaza LLC (2008) 164 Cal.App.4th 137, 143.)

Here, the provision cited by the Plaintiff, which precludes changes to the right to repayment, would only take affect if the Defendant Club took actions that it had not reserved a right to make. This is clear from the language of the provision. It is undisputed that the Defendant Club had reserved the right to create the Residential membership, and therefore did not have to garner the consent of the Plaintiff or provide the right to rescind. As a result, the Plaintiff’s contention that the Defendants’ breached this provision in the Membership Club Documents fails as a matter of law.  As such, summary adjudication is granted in Defendants’ favor as to this cause of action.

Second Cause of Action for Breach of the Covenant of Good Faith and Fair Dealing

As discussed above, the Defendant Club was within its rights to create the Residential memberships and, therefore this conduct cannot form the basis for a breach of the implied covenant of good faith and fair dealing. (Carma Developers (Cal.), Inc. v. Marathon Development California  (1992) 2 Cal.4th 342, 374. We are aware of no reported case in which a court has held the covenant of good faith may be read to prohibit a party from doing that which is expressly permitted by an agreement.)  As such, summary adjudication is granted in Defendants’ favor as to this cause of action.

Seventh Cause of Action for Unjust Enrichment

The Plaintiff premises his unjust enrichment claim on the same theory as he does his breach of contract and breach of the covenant of good faith and fair dealing. As discussed above, the Defendant Club has established that it had the right to create the Residential memberships, thus precluding a finding that the Defendant was unjustly enriched. Further, the Plaintiff has failed to present any evidence that the Defendants were unjustly enriched. As such, summary adjudication is granted in Defendants’ favor as to this cause of action.


The Defendants’ motion for summary adjudication of the three remaining causes of action is granted.  Accordingly, Defendants are entitled to Summary Judgment in their favor.  The Defendants shall draft an order consistent with this ruling.


2.  SCV-255299 Rapp v. A Plus Towing:

This is on calendar for Cross-Defendant CSAA’s demurrer to the First Amended Cross-Complaint (FACC). CSAA contends that the FACC fails to allege any causes of action against it as the Cross-Complainants were not insured under the policy of Cross-Defendant Roberson.

In opposition to the demurrer, A Plus contends that since the underlying complaint alleges that they owned the subject trailer, that they are therefore covered under Roberson’s CSAA insurance policy. Further, A Plus contends that CSAA failed to defend it in the First Action, and therefore has breached its duty to them. Citing Insurance Code § 11580.1, A Plus further contends that they were additional insured under Roberson’s CSAA policy. 

The request for judicial notice is granted.

First Cause of Action for Declaratory Relief[1]

A Plus contends that they fall under the rubric of “additional insured” under permissive use as “putative owners” of the subject trailer that was being used by Roberson. (Citing Insurance Code § 11580.1(b)(4).) A Plus, however, would only be considered an additional insured (under the theory where A Plus owns the trailer) if the CSAA policy covered non-owned vehicles. (See Croskey, Heeseman, Imre & Erlich, Cal. Prac. Guide: Insurance Litigation (The Rutter Group 2014), ¶ 7.1271 [“If the permissive user (driver) has separate liability insurance covering ‘nonowned vehicles’ … that policy may also cover the injured person's claims. (In this situation, the owner will be an ‘additional insured’ under the permissive user's insurance policy; see Ins.C. § 11580.1(b)(4).)”].)

“Ownership” for purposes of permissive use liability is not determined by the ordinary rules governing ownership of personal property. It is controlled by the registration record and transfer procedures prescribed by the California Vehicle Code. (See Durbin v.Fletcher (1985) 165 Cal.App.3d 334; Laureano v. Christensen (1971) 18 Cal.App.3d 515, 519.) As a result, there may be several “owners” at the same time: “One or more persons may be an ‘owner’ and thus liable for the injuries of a third party, even though no such ‘owner’ possesses all of the normal incidents of ownership.” (Stoddart v. Peirce (1959) 53 Cal.2d 105, 115.) Note that for purposes of permissive use liability, the transferor of a vehicle continues to be an “owner” until they comply with the Vehicle Code transfer procedures. (See Veh.C. § 5602; see also California State Auto. Ass'n v. Foster (1993) 14 Cal.App.4th 147, 152; Spangle v. Farmers Ins. Exch. (2008) 166 Cal.App.4th 560, 575-576.) Moreover, a buyer is “owner” after the sale of a vehicle.

Looking to the case at hand, the FACC alleges that the CSAA policy covers utility trailers owned by Roberson, and for the trailer “involved in the subject accident.” (FACC ¶ 9.) A Plus’ broad allegation of coverage of so-called non-owed utility trailers is consistent with Roberson’s CSAA policy, which is attached to the FACC. (See FACC, Exhibit A pg. 4.)  Here, the FACC alleges that A Plus sold the subject trailer to Roberson, who, while driving it away, allegedly harmed the Plaintiff. The FACC does not allege that A Plus complied with the Vehicle Code transfer procedures prior to the accident. Therefore, reading the allegations broadly, as the court must on a demurrer; A Plus has stated a cause of action for declaratory relief with respect to their coverage as an additional insured as “owner” of the subject trailer and Roberson as the “permissive user” under the CSAA policy.

Third and Fifth Cause of Action for Breach of Contract and Bad Faith

As explained above, A Plus has pled sufficient facts to outline a case of being an “additional insured” under the CSAA policy. An additional insured has standing to sue an insurer for breach of contract and breach of the implied covenant. (Royal Surplus Lines Ins. Co., Inc. v. Ranger Ins. Co. (2002) 100 Cal.App.4th 193, 200 citing  Croskey, Heeseman, Imre & Erlich, CAL. PRAC. GUIDE: INSURANCE LITIGATION (The Rutter Group 2014), ¶ 12:56; and San Diego Housing Com. v. Industrial Indemnity Co. (1998) 68 Cal.App.4th 526, 536.) Therefore, the allegations are sufficient to plead causes of action for breach of contract and insurance bad faith against CSAA.

Fourth Cause of Action for Negligence

CSAA demurs to this cause of action on the grounds that an insurer is not generally liable on a negligence theory. CSAA’s argument is well-taken. Negligence is not among the theories of recovery generally available against insurers. Delay or failure to pay policy benefits may be actionable as a breach of contract or bad faith, not negligence. (See Sanchez v. Lindsey Morden Claims Services, Inc. (1999) 72 Cal.App.4th 249,254; and Benavides v. State Farm Gen. Ins. Co. (2006) 136 Cal.App.4th 1241, 1253-1254.)


Accordingly, and for the foregoing reasons, CSAA’s demurrer is sustained without leave to amend as to the Fourth Cause of Action, and overruled as to the balance of the causes of action. CSAA shall draft an order consistent with this ruling.


3.  SCV-256361 Wakim v. Vassilakis:

This is on calendar for Defendants’ demurrer to the Complaint. The Defendants contend that the Complaint fails to allege facts sufficient to support either the fraud cause of action, or the intentional infliction of emotional distress claim.

In support of the demurrer the Defendants seek judicial notice of five separate documents. The Plaintiff has objected to the request for judicial notice as to Exhibits 2 and 4. The Plaintiff’s objections are sustained. Further, the court cannot take judicial notice of Exhibit 5, a purported transcript of an interview with Ms. Souraya Baker. The court does take judicial notice of Exhibits Nos. 1 and 3.

The Defendants argue that the instant case is a “probate matter” filed in the wrong court. As a result, the Defendants contend that the court is without jurisdiction to hear the matter. Further, the Defendants argue that the fraud cause of action is time barred, as any challenge to the disbursement of the estate would have to have been made within a year of the decedent’s passing. The Defendants attack the IIED claim on the same grounds.

The Plaintiff has not alleged facts to support either cause of action. The gravamen of the First Cause of Action for fraud alleges that the Defendants defrauded Joseph Milano. The Plaintiff does not have standing to bring a fraud cause of action on behalf of another person.

Further, the Plaintiff’s causes of action involve a promise for testamentary distribution. An action to enforce a decedent's oral (or written) promise for distribution of property from an estate or trust must be filed within 1 year of the decedent's death, instead of the limitations period otherwise applicable to the promise. (CCP § 366.3(a); Estate of Ziegler (2010) 187 Cal.App.4th 1357, 1363.) Pursuant to CCP § 366.3(a) the 1-year limitations period “shall not be tolled or extended for any reason.”  Ms. Baker died on January 3, 2009, and Mr. Milano died on May 26, 2013. The present Complaint was filed on November 17, 2014. Therefore, the causes of action are time-barred.

Accordingly, the demurrer is sustained, without leave to amend. The Defendants are to draft an order consistent with this ruling.


4.  SCV-252583 Deering v. Warren:

            The hearing on Plaintiff’s Motion to Vacate Dismissal will be heard on the Law and Motion Calendar on April 7, 2015 at 8:30am in Department 19.


5.  SCV-253644 Verbish v. Verbish:

            Attorney Steven Taxman’s motion to be relieved as counsel is denied.  There is no proof of service filed indicating that the plaintiff and defendant have been served with the motion. (CRC Rule 3.1362.)


6.  SCV-254659 Pacific Bell v. Cole:

            This is on calendar for the Plaintiffs’ motion for attorney fees. The Plaintiffs contend that as the prevailing party in their wage and hour dispute, they are entitled to an award of reasonable attorney fees. (See Labor Code § 98.2(c).) The Plaintiffs seek $368,531.25.

The Defendant opposes, arguing that the amount sought by the Plaintiffs is unreasonable. The Defendant contends that the Plaintiffs’ attorneys’ descriptions of the work they performed are too vague and inadequate to support the award. Further, the Defendant argues that the Plaintiffs’ attorneys are impermissibly attempting to bill for duplicative work. The Defendant also argues that the claimed hourly rate of $500 for Mr. Herron is unreasonable and unsupported. Lastly, the Defendant contends that the Plaintiffs are not entitled to a 1.5X multiplier.

The Plaintiffs’ request for judicial notice is denied. Note that the request asks for judicial notice of Cropsey v. Ensign Group; however, the request includes a ruling from De la Cruz v. Cal-Pac Sonoma, LLC.

Any fee award analysis centers on the reasonability of the Plaintiff’s request—which in turn centers on fixing the lodestar number. Serrano III requires the trial court to first determine a “touchstone” or “lodestar” figure based on a “careful compilation of the time spent and reasonable hourly compensation for each attorney ... involved in the presentation of the case.” (Serrano v. Priest (1971) 20 Cal.3d 25, 48; Serrano v. Unruh (1982) 32 Cal.3d 621, 625 (“Serrano IV”).) That figure may then be increased or reduced by the application of a “multiplier” after the trial court has considered other factors concerning the lawsuit.

Here, Plaintiff’s attorneys are seeking hourly rates as follows: (1) J. Wynne Herron, $500.00 per hour; (2) Laura Herron Weber, $325.00 per hour. Counsel's own billing rates carry some weight of reasonableness. (See, e.g., Russell v Foglio (2008) 160 Cal.App.4th 653, 661.)   Plaintiff’s attorneys have submitted evidence of their hourly rates, i.e. their own declarations. The Defendant argues that Mr. Herron’s claimed rate of $500 is unreasonable and unsupported.

The Defendant offers argument, but little evidence to support its contention that Mr. Herron’s hourly rate is unreasonable. (See Center for Biological Diversity v County of San Bernardino (Hawarden Dev. Co.) (2010) 188 Cal.App.4th 603, 620.) That being said, this court is often called upon to determine reasonable hourly rates of attorneys who appear in front of it. To determine reasonable market value, courts must determine whether the requested rates are “within the range of reasonable rates charged by and judicially awarded comparable attorneys for comparable work.” (Children’s Hosp. & Med. Ctr. v Bontá (2002) 97 Cal.App.4th 740, 783.) The court is persuaded that Mr. Herron’s sought after rate of $500.00 per hour is too high. The reasonable market value of the attorney's services is the measure of a reasonable hourly rate. ( Ketchum v Moses (2001) 24 Cal.4th 1122; PLCM Group, Inc. v Drexler (2000) 22 Cal.4th 1084, 1094.) To determine reasonable market value, courts must determine whether the requested rates are "within the range of reasonable rates charged by and judicially awarded comparable attorneys for comparable work." (Children's Hosp. & Med. Ctr. v Bontá (2002) 97 Cal.App.4th 740, 783.)

Here, Mr. Herron’s representation of the Plaintiffs was competent and straightforward. That being said, a rate of $500.00 exceeds the rate in this community. Accordingly, the court finds that a more appropriate and reasonable hourly rate is $425.00—as argued by the Defendant. Ms. Weber’s rate was not challenged by the Defendant, and the court finds the claimed rate of $325.00 is reasonable. 

Number of Hours

Here, the attorneys seek approximately 609.5 hours among the two attorneys. The Defendant argues that the number of hours in this case is unreasonable. The Defendant assails the descriptions in the submitted time sheets as vague. Further, the Defendant points to duplicative work that totaled $14,787.50.

In Serrano v Unruh (Serrano IV) [(1982) 32 Cal.3d 621, 639] the court held that prevailing counsel are entitled to compensation for all hours reasonably spent: "[A]bsent circumstances rendering the award unjust, fees recoverable … ordinarily include compensation for all hours reasonably spent, including those necessary to establish and defend the fee claim." (See also Center for Biological Diversity, supra, 185 Cal.App.4th at 897 ("absent 'circumstances rendering the award unjust, an … award should ordinarily include compensation for all the hours reasonably spent.' "); Vo v. Las Virgenes Mun. Water Dist. (2000) 79 Cal.App.4th 440, 446(same).)  Note further that courts do not require detailed time records, and trial courts have discretion to award fees based on declarations of counsel describing the work they have done and the court's own view of the number of hours reasonably spent. (See, e.g., PLCM Group, supra, 22 Cal.4th at 1095 n4.)

The court has reviewed the time records provided by Plaintiffs’ counsel. The records are not too vague to support the award. The law does not required detailed time records—and may even be based on generalized descriptions of time spent. Having reviewed many time records, the court finds that the submitted time records provide adequate description of the work.

That being said, the court is concerned that the Plaintiffs’ attorneys’ time reveals duplicative efforts, which amount to double billing. Accordingly, the court will deduct 45.5 hours of Ms. Weber’s time that duplicated the efforts of Mr. Herron. 

As a result, the lodestar attorney fees are as follows: (1) Mr. Herron $425 x 272 = $115,600.00; (2) Ms. Weber $325 x 292 = $94,900.

Plaintiff’s attorneys seek a 1.5x multiplier in addition to the lodestar award.  Basically, when a party seeks an “enhancement” they have the burden of proof to establish entitlement. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138.) In PLCM Group, Inc. v Drexler (2000) 22 Cal.4th 1084, the court recited several factors trial courts may consider, several of which overlap the Serrano III factors: "the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case." (22 Cal.4th at 1096, citing Melnyk v Robledo (1976) 64 CA3d 618, 623.)

The Defendant argues that this case is not a candidate for a 1.5x multiplier. The Defendant argues that the contingent risk is dealt with in the hourly rates of the attorneys. Further, the Defendant argues that the matter was not so complex as to preclude the attorneys from pursuing other work. The Defendant also contends that the matter did not involve difficult or novel legal questions. Lastly, the Defendant argues that the case did not “serve the public.”

Here, the case was not as simple and straightforward as argued by the Defendant. The case involved significant and complex issues of preemption and jurisdiction—which may have far ranging impacts on other cases. Further, the award for the Plaintiffs involved wages to which they were entitled that the Defendant refused to pay. This is the type of case that requires aggressive and competent representation. As such, the court will apply the 1.5x multiplier sought by the Plaintiffs.

Accordingly, the Plaintiffs are awarded $210,500, plus $105,250 for a total award of $315,750 in statutory attorney fees. The Plaintiffs shall draft an order consistent with this ruling.


7.  MSC-184666 Kniffin v. Yarbrough:

Defendants filed a timely Motion to Vacate (Cancel) Judgment.  Based on the reasons set forth in the attachment to the motion, the motion is granted.  The judgment is vacated.  Trial is set on the Short Cause calendar at 8:30am on Wednesday, May 27, 2015 in Department 19.

[1] The FACC contains two causes of action labeled as the “First Cause of Action.” Each of the causes of action labeled as the First, however, seek declaratory relief with respect to whether A Plus is covered under Roberson’s CSAA Policy, and therefore the analysis is identical.

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