Aug 24, 2016

LAW & MOTION TENTATIVE RULINGS       PLEASE NOTE:  THIS

WEDNESDAY, AUGUST 24, 2016, 3:00pm        CALENDAR WILL BE CALLED

COURTROOM 19 – Judge Allan D. Hardcastle  BY JUDGE WILLIAM C. HARRISON

3055 Cleveland Avenue, Santa Rosa, CA  95403

Court Call is 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, you must contact the Judicial Assistant by telephone at (707) 521-6730 by 4:00 p.m. on TUESDAY, AUGUST 23, 2016.  Any party requesting an appearance must notify all other parties of their intent to appear.

 


1.      SCV-252497 Smith v. Green Tree:

            Defendant Green Tree Servicing (“Green Tree”) and Real Party in Interest Federal National Mortgage Association (“FMMA”) (collectively “Defendants’”) motion for summary judgment is granted. The undisputed material facts show that Defendants are entitled to judgment as a matter of law as to Plaintiff’s sole cause of action for negligence.

The motion is further granted on the basis of plaintiff’s failure to include a separate statement in opposition, any evidence at all, or a request for judicial notice. Plaintiff’s failure to rebut the evidence on breach and damages is fatal to her opposition. Further, Plaintiff’s half-hearted attempt to postulate a negligence duty based solely on legal grounds is unavailing.

Defendants are to prepare a proposed order consistent with this tentative ruling.

 

2.      MCV-235765 Collectronics v. Fort 1:

            Plaintiff and Judgment Creditor’s motion to appoint a receiver is granted on the following grounds:

 

(1) Commercial or income property is involved – The judgment debtor’s interest in an alcoholic beverage license may be applied to the satisfaction of this judgment.

(2) There are third party interests to be considered – Collectronics is the judgment creditor owed an amount of $4,074.27.

(3) There is reason to doubt the judgment debtor's willingness to comply with the judgment – despite the defendant’s promises of payment, plaintiff has not been paid. It is therefore appropriate for the Court to appoint Michael Brewer as receiver to seize control of the liquor license and either sell it for fair market value, which can be used to pay the creditors of the defendant(s) or to operate the business until a buyer of the establishment can be found.

(4) There is a need for special expertise in handling the subject property – The transfer and sale of a liquor license must comply with the Alcohol Beverage Control Board standards, which requires a skilled, experienced, and knowledgeable expert.  Michael Brewer is recommended for this receivership appointment.

 

Counsel for Plaintiff shall prepare a proposed order consistent with this tentative ruling.

 

3.      SCV-258650 RW v. Summerfield Waldorf:

Defendant’s Motion to Strike is granted in part, and denied in part as follows:

            Plaintiff’s allegations regarding R.W.’s mother requesting Summerfield increase supervision of the children due to behavioral issues is vague and irrelevant. Accordingly, defendant’s motion to strike ¶7 is granted, without prejudice.

            ¶8 relates to the parent of Summerfield students learning that J.D. had committed inappropriate touching of another male student’s genitalia is relevant since it relates to Summerfield’s knowledge of J.D.’s propensity to act sexually inappropriate. ¶8 is relevant and is not stricken.

              ¶10 at page 3, lines 23-25: “Shortly after the end of the school year, R.W. and her parents were at the home of J.D. and his parents. R.W.’s mother witnessed J.D. coercing R.W. to touch feces in the backyard.” This occurrence occurred off campus and could be considered irrelevant. Summerfield was in no position to supervise J.D. at an off campus event, and had no knowledge of this occurrence. Accordingly, Defendant’s motion to strike ¶10 is granted, without prejudice.

              ¶13 at page 4, lines 13-19: “Summerfield’s lack of supervision and failure to prevent sexual abuse and molestation allowed J.D. to sexually molest and abuse R.W. Summerfield’s lack of supervision and failure to prevent sexual abuse and molestation extended to other students, not only R.W. In fact, other students were molested by an after-school aide Christopher Harmon who was arrested in December 2015 for engaging in sexual acts with a 4 year old child. Additional charges have been pressed against Harmon as more and more victims have been identified.”  Paragraph 13 is stricken, as this incident occurred off campus and did not involve J.D., and Summerfield had no responsibility for Harmon’s criminal activity.  The motion to strike paragraph 13 is granted, without prejudice.

            ¶14 at page 4, lines 20-25: “Only after learning that an employee had been sexually molesting students did Summerfield finally take action to increase playground safety and supervision standards by establishing supervision ratios and play area boundaries. These corrective actions were feasible to make and should have been made earlier in light of Summerfield’s knowledge of sexual abuse being committed by students on other students.”

            The allegations at paragraph 14 are relevant and go directly to the issue of whether Summerfield provided adequate supervision of its students. The motion to strike paragraph 14 is denied.

Defendant is to prepare a proposed order consistent with this tentative ruling.

 

4.      SCV-258843 Fowler v. Midstate:

The subcontract on which plaintiff has filed suit require all claims and disputes to be arbitrated. Despite several requests from Midstate that it do so, plaintiff failed to take action to submit its claims to arbitration.

            Accordingly, Defendant Midstate’s motion to compel arbitration is granted.

            Defendant shall prepare an order consistent with the court’s ruling.

 

© 2016 Superior Court of Sonoma County