Sep 16, 2019
TENTATIVE RULINGS
LAW & MOTION CALENDAR
Wednesday, September 11, 2019, 3:00 p.m.
Courtroom 19 – Hon. Allan D. Hardcastle
3055 Cleveland Avenue, Santa Rosa
 
CourtCall is available for all Law & Motion appearances, EXCEPT 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) 521-6602, and all other opposing parties of your intent to appear by 4:00 p.m. today, Tuesday, September 10, 2019. Parties in motions for claims of exemption are exempt from this requirement.
 
PLEASE NOTE: The Court WILL provide a Court Reporter for this calendar. If there are any concerns, please contact the Court at the number provided above.
 

 1.        MCV-245285, Onemain Financial Group, LLC v. Cruz

 

 


On September 3, 2019, Defendant filed a Notice of Stay of Proceedings due to a Chapter 7 Bankruptcy filing on August 30, 2019. The matter is dropped as the Sonoma County Sheriff advises that the Plaintiff has cancelled the levy.
 
 
 

2.        MCV-248883, Alta Vista Heights Homeowners Association v. Harris

 

 

            Matter is dropped; case settled.
 
 
 

3.        SCV-260544, Mc Lea’s Tire Service, Inc v. Merchant Club of America LLC

 

 


This action arises from an agreement to lease credit card processing machines and processing services. On April 24, 2017, multiple plaintiffs filed their original complaint against multiple defendants, including Merchant Club of America, LLC (“MCA”); David Kazarian dba Merchants of America (“Kazarian”); Northern Leasing Systems, Inc. (“NLS”); MBF Leasing, LLC (“MBF”); and Executech Lease Group, LLC (“ELG”), collectively (“Defendants”). The complaint asserts causes of action for breach of contract; fraud; declaratory relief; rescission; cancellation; and money had and received. The parties initially attempted to settle the dispute and Plaintiffs granted Defendants multiple extensions to respond to the complaint. When those settlement negotiations failed, Defendants filed an answer on August 30, 2017. 
On December 21, 2017, multiple plaintiffs separately served form interrogatories and requests for production of documents to each of the defendants. Despite Defendants’ counsel’s attempt to obtain the information from his clients, Defendants failed to provide any responses to the subject discovery and notwithstanding representations that responses would be forthcoming, no responses were provided. On March 14, 2018, Plaintiffs filed a motion to compel responses. Defendants did not oppose the motions and on May 1, 2018, the Court issued a tentative ruling granting the motions to compel; ordered Defendants to provide responses and documents within twenty days; and ordered Defendants and their counsel to pay $600 in monetary sanctions, jointly and severally. No party requested oral argument and the tentative ruling was adopted as the ruling of the Court. However, despite the Court’s final ruling, Defendants failed to provide responses and failed to pay the sanctions. 
On July 25, 2018, Plaintiffs filed a First Amended Complaint and amended their prayer for damages in the event the matter was ultimately resolved by way of default. On August 28, 2018, Defendants served their answer to the FAC. Plaintiffs filed this motion for issue, evidence, and/or terminating sanctions on September 4, 2018. On October 3, 2018, Defendants filed an opposition to the motion which stated in part that “plaintiff has received representative discovery responses and document production from defendant MCA” and that Plaintiffs have “received the $600 [in] monetary sanctions.” However, Defendants’ counsel explained that the remaining defendants had largely been unresponsive to counsel’s requests for information and documents and he acknowledged that they will be “exposed to default” if they do not respond. (See, Opp. at 3:21-22 and 4:12-12.) 
The hearing was originally set for October 17, 2018 but was continued several times at the parties’ request. In fact, on October 29, 2018, Plaintiffs sent a letter to the Court asking to “remove the hearing” from the Court’s calendar. The same day, a conditional notice of settlement was filed. Thereafter, on May 29, 2019, a partial judgment in the amount of $3,115,941.75 was entered against Kazarian, individually and dba Merchants of America. On July 22, 2019, a partial stipulated judgment was entered against MCA in the amount of $100,852.45. Also on July 22, 2019, Plaintiffs requested that the stay by virtue of the settlement be lifted and this motion for sanctions be put back on calendar for September 11, 2019. 
In a supplemental declaration, Defendants’ counsel states that he has provided verified discovery responses on behalf of MCA (which already has a judgment entered against it) and NLS; unverified discovery responses on behalf of ELG; nothing from MBF; and counsel has paid the $600 in sanctions. Counsel does not appear to represent Kazarian. Counsel explains that while the original motion was pending, a comprehensive settlement agreement was reached though Defendants subsequently defaulted on the agreement. Similar to his Declaration filed in October 2018, counsel again states that he intends to move to be relieved as Defendants’ counsel but to-date, no motion has been filed. Defendants argue that because they have partially complied with the order and provided responses to some of the discovery; and have paid the sanctions, issue, evidence and/or terminating sanctions are too drastic a remedy at this time. Defendants do not appear to oppose Plaintiffs’ request for monetary sanctions.
In a supplemental reply declaration, Plaintiffs’ counsel explains that MBF has never provided any responses; ELG has provided only unverified responses; and Plaintiffs have not been served with responses for NLS. Plaintiffs request that if the Court denies the motion for issue, evidence and/or terminating sanctions, the Court allow Plaintiff to file motions to compel further responses as to ELG and NLS within 30 days of the Court’s order on this motion. Plaintiffs also reassert their original request for $4,721.00 in monetary sanctions.
Plaintiff’s motion for issue, evidence and/or terminating sanctions is DENIED, without prejudice. Based on the fact that Defendants have attempted to comply with the Court’s prior order, it is not clear to the Court that a less severe sanction would not be effective. (See, Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604; see also, Doppes v. Bentley Motors, Inc. (2009) 1744 Cal.App.4th 967, 992 [terminating sanctions justified when less severe sanctions would not produce compliance with the discovery rules. ”]; see also, Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280.) 
Defendants Northern Leasing Systems, Inc.; Executech Lease Group, LLC; and MBF Leasing, LLC are ORDERED to serve full, complete, and verified responses to Plaintiffs’ discovery within 30 days of service of the Court’s final ruling on this motion. If Defendants fail to comply with this Order, Plaintiffs may seek additional sanctions at that time. 
Plaintiffs’ request for $4,721.00 in monetary sanctions, jointly and severally against Defendants and their attorney of record William L. Miltner, is GRANTED. Defendants, or their attorney of record Mr. Miltner, are ORDERED to pay $4,721.00 in sanctions to Plaintiffs within 30 days of service of the Court’s final ruling on this motion. 
Mr. Miltner’s request for a date for a motion to be relieved as counsel for the remaining defendants is DENIED. If Mr. Miltner intends to file such a motion, it should be done in accordance with the Code and local rules.
 Plaintiffs’ counsel shall submit a written order and proposed default judgment to the Court consistent with this tentative ruling and in compliance with California Rules of Court, Rule 3.1312.
 
 

4.        SCV-263410, Wiggan v. St Joseph Health

 

 


This matter is on calendar for attorney Kenneth M. Sigelman’s motion to be relieved as counsel for plaintiff, Navah Wiggan, by and through her Guardian ad Litem, Imaru Wiggan. Defendants, who have not appeared in this action, have not filed an opposition to this motion.  
Mr. Sigelman’s motion is GRANTED. Unless oral argument is requested, the Court will sign the proposed orders lodged with the Court.
 
 

5.        SCV-264364, Hewko v. Sonoma County

 

 

            The Demurrer has been dropped from calendar, pursuant to notification from the Demurrer Facilitator that the matter has been resolved. The Court thanks the Demurrer Facilitator Steven Finell for his assistance with this matter.
 
 

 

 

6.        SCV-264636, Lippincott, Sr v. Pierson

 

 

            This case is on calendar for Defendant’s demurrer to Plaintiff’s complaint, filed June 17, 2019. However, Plaintiff filed a First Amended Complaint on July 31, 2019 and therefore, the demurrer is MOOT. The Court thanks the Demurrer Facilitator Gregory Spaulding for his assistance with this matter.  
 
 
*This is the end of the Tentative Rulings* 

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