Oct 22, 2014

LAW & MOTION TENTATIVE RULINGS

TUESDAY, OCTOBER 21, 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) 521-6729 by 4:00 p.m., MONDAY, OCTOBER 20, 2014.  Any party requesting an appearance must notify all other parties of their intent to appear.

1.  SCV-252910 Lorenzo v. McReynolds:

This is on calendar for Cross-Defendant Janice Lorenzo’s (Lorenzo) demurrer to the First Amended Cross-Complaint. The Cross-Complaint alleges that Lorenzo and her boyfriend at the time, Cross-Defendant Patrick Pine (Pine), conspired and in fact did commit elder abuse by tricking Defendant McReynolds and her late husband into putting Pine’s name on title to a home located at 1456 Liverpool Way, Petaluma (the Property), owned by McReynolds and her late husband. Putting Pine’s name on the title to the Property came after Pine and Lorenzo allegedly had induced McReynolds and her late husband into purchasing the Property.

 

Lorenzo demurred to the original Cross-Complaint, which was sustained with leave to amend. The Defendant/Cross-Complainant filed an amended Cross-Complaint (FACC) alleging: (1) Breach of Contract; (2) Breach of Fid. Duty; (3) Breach of Duty to Disclose; (4) Elder Financial Abuse (Lorenzo); and (5) Elder Financial Abuse (Pine). Lorenzo has demurred to the FACC and filed a motion to strike.

Lorenzo demurs to the Fourth Cause of Action for Financial Elder Abuse on the grounds that it is barred by the applicable statute of limitations. Lorenzo further demurs to Fourth Cause of Acton on the grounds that it fails to allege facts sufficient to state a cause of action. Lorenzo further moves to strike the allegations in the Fourth Cause of Action on the grounds that they are time barred, or improperly drawn.

 

Elder Abuse Claims against Lorenzo

 

The FACC alleges that Lorenzo assisted Pine in the unlawful retention of the Property. Welf. & Inst. Code § 15610.30(a)(2) provides that: “‘Financial abuse’ of an elder or dependent adult occurs when a person or entity does any of the following: … Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.” Here, the FACC alleges that Lorenzo assisted Pine in unlawfully retaining the Property in 2012. This is sufficient to state a cause of action against Lorenzo.

 

Further, the alleged acts in the FACC occurred within four years of the filing of the complaint. Welf. & Inst. Code § 15657.7 provides: “An action for damages pursuant to Sections 15657.5 and 15657.6 for financial abuse of an elder or dependent adult, as defined in Section 15610.30, shall be commenced within four years after the plaintiff discovers or, through the exercise of reasonable diligence, should have discovered, the facts constituting the financial abuse.” Pine, with Lorenzo’s assistance, allegedly retained the Property in 2012 unlawfully. It is well-established that the running of the statute must appear “clearly and affirmatively” from the face of the complaint. It is not enough that the complaint might be time-barred. ( Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42.)

 

Lorenzo’s motion to strike is premised on the FACC being barred by the statute of limitations. As explained above, the court disagrees. Further, for the same reasons the court finds that the allegations are sufficient to state a cause of action.

 

Lorenzo’s demurrer is overruled and the motion to strike is denied.

Counsel for the cross-complaintant is to draft an order consistent with this ruling.

 

2.  SCV-254229 Delfino v. Nationstar Mortgage:

This is on calendar for Defendants’ demurrer to the First Amended Complaint (FAC). The Defendants contend that the entire FAC fails to state a claim for relief. The Defendants also demurrer to each of the causes of action on the basis that they fail to allege facts sufficient to state a cause of action. The Plaintiff opposes.

 

The Plaintiff has alleged sufficient facts to state a cause of action for violations of the Home Owner Bill of Rights (HOBR). The FAC alleges that the single points of contact failed to perform their duties as required under CC § 2923.7(b).  (See FAC ¶¶ 40-41, 54-56.) Further, the Plaintiff has alleged facts sufficient to allege a violation of HOBR’s prohibition against “dual-tracking.” The Plaintiff alleges that she submitted a complete loan modification application, and the Defendants continued to pursue foreclosure at the same time. (See FAC ¶¶ 15, 58-65.)

 

The demurrer to the Third Cause of Action for Temporary Restraining Order and/or Injunctive relief is sustained. Injunctive relief is a remedy, not a cause of action. (See McDowell v. Watson (1997) 59 Cal.App.4th 1155, 1159.)

 

The Demurrer to the Fourth Cause of Action for Misrepresentation is overruled. Here, the FAC does satisfy the elements for misrepresentation. (See FAC ¶¶ 73-101) Further, the FAC does allege the actual names of the people spoken to, and what they said. (See e.g. FAC ¶¶ 33 (Ileah Wolford), 37 (Benjamin), 38 (John).) The Defendants demurrer based on the statute of limitations is not well-taken. The Plaintiff alleges a discovery date of August 20, 2013—this is sufficient to overcome the demurrer. (FAC ¶ 42.)

 

The demurrer to the Fifth Cause of Action is overruled as well. The Defendants contend that this cause of action is derivative of the HOBR claims, and since those fail, so must this claim. As discussed, the Plaintiff’s HOBR claims survive, therefore this claims survives as well.

 

The demurrer to the Sixth Cause of Action for Declaratory Relief is sustained with leave to amend. This cause of action in the instant case adds nothing to the controversy that cannot be determined in the "main action." ( See Hood v. Superior Court (1995) 33 Cal.App.4th 324.)

The demurrer to the Seventh Cause of Action is sustained with leave to amend. To rescind a contract, the Plaintiff must allege that she has “[r]estored to the other party everything of value which [s]he has received … under the contract or offer to restore the same upon condition that the other party do likewise, unless the latter is unable or positively refuses to do so.” (CC § 1691(b).) The FAC does not allege that the Plaintiff has satisfied this condition to effect the rescission. 

 

Accordingly, the demurrer to the FAC is sustained with leave to amend as to the Third, Sixth, and Seventh Causes of Action; the balance of the demurrer is overruled. The Plaintiff shall draft an order consistent with this ruling.

           

3.  MCV-222689 Copeland Creek v. Gotelli:

This is on calendar for the Plaintiff/Cross-Defendant’s motion to compel. On September 18, 2014, the

Defendant/Cross-Complainant Gotelli filed a notice of bankruptcy stay. (See 11 USC § 362.) Accordingly, the

instant hearing is dropped. Further, the case is set for a status conference re bankruptcy to be heard in this

department on May 14, 2015 at 8:30 a.m. in Dept. 19.

 

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

This is on calendar for  Defendant/Cross-Defendant Fernando’s Painting’s motion to determine that its settlement with the Plaintiff Capri Creek was in “good faith” pursuant to CCP § 877.6. The settling parties engaged in good faith settlement negotiations with Special Master Peter Dekker, which resulted in the subject settlement. By terms of the settlement, Fernando’s Painting will pay the Plaintiffs $ 350,000.

Defendant AAA Energy Systems, Inc. (AAA) opposes the motion, arguing that the settlement does not meet the so-called Tech-Bilt factors. AAA points out, as it did in contesting a good faith settlement with Northern California Nail, that the Plaintiff has claimed approximately $10,000,000 in damages. AAA contends that the settlement is disproportionate to Fernando’s Painting’s liability in this matter. AAA also contends that the settlement proceeds are not allocated properly.

As with any motion for good faith settlement, the settling defendant's proportionate liability is a critical factor: “The ultimate determinant of good faith is whether the settlement is grossly disproportionate to what a reasonable person at the time of settlement would estimate the settlor's liability to be.” (City of Grand Terrace v. Sup.Ct. (1987) 192 Cal. App. 3d 1251, 1262.)

 

Here, AAA argues that Fernando’s Painting’s settlement simply does not reach its proportionate liability. The Plaintiff, however, relies on the proportionality of the settlement based on the Plaintiff’s demands. AAA provides little evidence that is directed to the liability of Fernando’s Painting. The evidence supplied in support of its opposition generally discusses the damages and proposed repairs. While the Stoke’s deposition testimony seems to suggest damages based on the work of Fernando’s Painting, the testimony is equivocal; Mr. Stokes never testifies as to Fernando’s Painting’s direct liability. AAA has failed to demonstrate Fernando’s Painting’s proportionate liability, nor has it shown that the settlement here is outside of the preverbal “ballpark.” The party contesting good faith has the burden of demonstrating that the settlement is so far out of the ball park in relation to the Tech Bilt factors as to be inconsistent with the equitable objectives of the statute.  (Tech Bilt, supra at 499-500.) AAA has not met its burden.

 

Accordingly, the motion is granted.

 

The Moving Party is to draft an order consistent with this ruling.

 

5.  SCV-252508 Wagner v. City of Santa Rosa:

This is on calendar for Defendant City of Santa Rosa (the City), Defendant Pacific Gas & Electric (PGE), and Defendant Anne Fosters’ (collectively the movants) motions to contest the good faith of the settlement entered into between the Plaintiff and Cross-Defendant Daniel McGillicuddy. Defendant Redwood Oil Co. (Redwood) has filed joinders in the motions.

The facts of this case are well-known to the court. The underlying motorcycle accident severely injured both McGillicuddy (who was operating the motorcycle) and the Plaintiff (who was the passenger).  The Plaintiff is claiming over $700,000 in medical expenses alone.  The Plaintiff settled all claims with McGillicuddy for $25,000—which amounted to policy limits under McGillicuddy’s insurance. The Movants are contesting the settlement between McGillicuddy (the driver of the motorcycle) and the Plaintiff (the passenger on McGillicuddy’s motorcycle). McGillicuddy opposes the motions.

The Movants argue that the amount of the settlement is grossly disproportionate to McGillicuddy’s potential liability. The Movants offers evidence that McGillicuddy’s version of the underlying accident may be inaccurate, and that his negligence may have greatly contributed to the Plaintiff’s injuries. Indeed, the Movants suggest that McGillicuddy may be the sole cause of the Plaintiff’s injuries. The City further contests McGillicuddy’s claims that he has no means to fund a settlement over policy limits. The City offers evidence that McGillicuddy received a $100,000 settlement from Defendant Anne Foster (driver of the vehicle that collided with the motorcycle), however, McGillicuddy did not use any of those settlement funds to augment the settlement with the Plaintiff. Further, the Movants question McGillicuddy’s credibility. They point out that McGillicuddy has been convicted of multiple felonies, misdemeanors, and is affiliated with the Hell’s Angels motorcycle club. Additionally, the Movants argue that there are indications that the Plaintiff and McGillicuddy colluded during the settlement, pointing out that McGillicuddy lived with the Plaintiff following the accident, and continues to live rent free in a property owned by the Plaintiff.

McGillicuddy opposes, arguing that he has no assets other than the insurance policy which funded the subject settlement. McGillicuddy contends that the $100,000 settlement went to pay medical bills ($40,000), repair his motorcycle ($25,000), pay attorney fees and investigator costs ($31,000), with the remaining funds used for living expenses.

CCP §877.6 permits a plaintiff to settle with one or more joint tortfeasors or co obligors without releasing others, provided the settlement is in "good faith".  If in good faith, the settlement discharges settling defendants from liability to other defendants for equitable contribution and/or comparative indemnity.

There is no precise yardstick for measuring "good faith" but public policy favoring settlements must be harmonized with public policy favoring equitable sharing of costs among tortfeasors. To accomplish this, Tech-Bilt Inc. v. Woodward Clyde & Associate (1985) 38 Cal. 3d 488, requires that the settlement be within the "reasonable range" of the settling tortfeasor’s share of liability, taking into consideration the facts and circumstances of the particular case and evaluating the settlement on the basis of information available at the time of settlement including: (1) a rough approximation of plaintiff’s total recovery and settlors’ proportionate liability; (2) the amount paid in settlement; (3) recognition that a settlor should pay less in settlement than if found liable after trial; (4) the allocation of the settlement proceeds among plaintiffs; (5) settlor’s financial condition and insurance policy limits, if any; and (6) evidence of any collusion, fraud or tortious conduct between the settlor and the plaintiff aimed at making nonsettling parties pay more than their fair share.

In determining a motion for good faith settlement pursuant to CCP § 877.6, it is axiomatic that a court not only looks at the alleged tortfeasor's potential liability to the plaintiff, but it must also consider the culpability of the tortfeasor vis-à-vis other parties alleged to be responsible for the same injury. Potential liability for indemnity to a nonsettling defendant is an important consideration for the trial court in determining whether to approve a settlement by an alleged tortfeasor. (See TSI Seismic Tenant Space, Inc. v. Superior Court (2007) 149 Cal.App.4th 159, 166 citing West v. Superior Court (1994) 27 Cal.App.4th 1625, 1636–1637.) Without doing so, a court does not further the policy of “allocating costs equitably among multiple tortfeasors.” ( Tech–Bilt, supra, 38 Cal.3d at p. 502.)

The settling defendant's proportionate liability is a critical factor: “The ultimate determinant of good faith is whether the settlement is grossly disproportionate to what a reasonable person at the time of settlement would estimate the settlor's liability to be.” (City of Grand Terrace v. Sup.Ct. (1987) 192 Cal. App. 3d 1251, 1262; see also Toyota Motor Sales U.S.A., Inc. v. Superior Court (1990) 220 Cal. App. 3d 864, 871 [“[If] there is no substantial evidence to support a critical assumption as to the nature and extent of a settling defendant's liability, then a determination of good faith based upon such assumption is an abuse of discretion.”])

Schmid v. Sup.Ct. (Sargent) (1988) 205 Cal.App.3d 1244, 1249 is instructive and controlling in this case. There, a passenger sued the driver and county for serious injuries. The driver's insurer offered the policy limits ($55,000). Driver had no other assets. The appellate court held that it was error for the trial court to refuse to find the settlement in “good faith.” The fact Driver may have been more at fault than the settlement proposed was immaterial because she was insolvent; therefore, the County's equitable indemnity claims against her had no practical value. The court held that no purpose is served in keeping an insolvent defendant in the action. (Schmid, supra at 1249; see also County of Los Angeles v. Guerrero (1989) 209 Cal.App.3d 1149, 1158; and Aero-Crete, Inc. v. Sup.Ct. (Dale Village Apartment Co.) (1993) 21 Cal.App.4th 203, 208–209 [evidence showed settlor “was the proverbial turnip from which little if any blood was forthcoming in the event of an adverse judgment”].)

Here, the court is faced with a case that is nearly indistinguishable from that presented in Schmid. The evidence presented by the moving parties tends to show that McGillicuddy may have been responsible for the Plaintiff’s damages (over and above the liability of the alleged joint tort-feasors). This evidence, however, does not overcome the fact that McGillicuddy is insolvent. While there are troubling aspects to this settlement (e.g. McGillicuddy’s lack of credibility, McGillicuddy’s failure to contribute any of his $100,000 settlement with Foster to the Plaintiff, McGillicuddy’s potential liability), these problems do not erase McGillicuddy’s lack of assets. Indeed, much of the evidence submitted by the Movants in support of their motions also cuts in favor of a finding that McGillicuddy is likely judgment-proof. McGillicuddy’s status as a felon who has served time in prison not only demonstrates that he lacks credibility, but also demonstrates that he has significant barriers to long-term and gainful employment.  Case law is clear, where policy limits are tendered by an insolvent joint tort-feasor who has no assets, the resulting settlement is made in good faith.

 

Further, the City’s argument regarding collusion is not strong. What advantage does the Plaintiff receive from a disproportionately low settlement with McGillicuddy? The City simply cites collusion, but provides no logical basis to support its assertion.

Accordingly, the motions contesting the determination that the settlement was in good faith are all denied in their entirety.

Plaintiff is to draft an order consistent with this ruling.

 

6.  SCV-253584 Creekview Commons v. Cohill:

This is on calendar for Plaintiff’s motion for attorney fees against Defendant Thomas Smith pursuant to CC § 5650 and CC § 1717. The Plaintiff contends that it is entitled to statutory attorney fees after obtaining a successful motion for summary judgment. CC § 5650 (b)(1) provides:

 

Regular and special assessments levied pursuant to the governing documents are delinquent 15 days after they become due, unless the declaration provides a longer time period, in which case the longer time period shall apply. If an assessment is delinquent, the association may recover all of the following: (1) Reasonable costs incurred in collecting the delinquent assessment, including reasonable attorney's fees.

 

Further, the Plaintiff claims attorney fees based on contract, specifically the CC & R’s for Plaintiff. (See Dec. Vinaccia, Ex. B, § 4.8.)

 

On April 25, 2013, Plaintiff filed the Complaint. The Defendant was served, and his default was taken, and then set aside pursuant to a stipulation. On August 6, 2013, the Defendant filed a general denial.  On May 9, 2014, the Plaintiff filed a motion for summary judgment, which was unopposed. On August 5, 2014 the Plaintiff’s motion for summary judgment was granted. The instant motion followed. The Plaintiff claims attorney fees and costs in the amount of $5,055.

 

In determining the fee award, the trial court must first determine a “lodestar” or “touchstone” figure, which is the product of the number of hours worked by the attorneys and a reasonable fee per hour. [Citations.]” ( Greene v. Dillingham Construction N.A., Inc.( 2002) 101 Cal.App.4th 418, 422.)

 

Here, the Plaintiff claims 23.77 hours of attorney time at $250, $200 and $150. Paralegal time was billed at $115. Both the total hours and hourly rates are reasonable, for a total attorney fee award of $4,543. The Plaintiff also seeks litigation costs. This request is denied without prejudice.  To obtain a costs award, the prevailing party must serve and file a memorandum of costs. (CRC 3.1700(a); see Boonyarit v. Payless Shoesource, Inc. (2006) 145 Cal.App.4th 1188, 1192–1193.)

 

Accordingly, the motion is granted in part and denied in part. The motion is granted as to the Plaintiff’s motion for attorney fees in the amount of $4,543, but denied as to the request for costs.

 

The Plaintiff shall draft an order consistent with this ruling.

 

7.  SCV-254565 Brennan v. Ford Motor Company:

Plaintiffs’ have informed the court that the case has been settled in its entirety. Accordingly, the instant matters  

are dropped from the calendar.

 

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

Hearing continued to December 2, 2014 at 8:30 a.m. in Dept. 19.

9.  MCV-207071 CACH v. Sanchez:

Judgment debtor is to appear and produce all income and expense documents for the entire 2014 calendar year.

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