May 25, 2016




WEDNESDAY, MAY 25, 2016, 3:00pm           

COURTROOM 19 – Judge Allan D. Hardcastle  

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, it will be necessary for you to contact the Judicial Assistant by telephone at (707) 521-6547 by 4:00 p.m. on TUESDAY, MAY 24, 2016.  Any party requesting an appearance must notify all other parties of their intent to appear.    


1.      SCV-249938  Petras v. JP Morgan Chase:

                  Entire action dismissed as of April 8, 2016.


2.      SCV-256266 Beckmann v. JP Morgan Chase:

                  Defendants’ demurrers are sustained without leave to amend.

                  Plaintiff’s third amended complaint (“TAC”) alleges the following causes of action: (1) to set aside illegal trustee’s sale (monetary damages); (2) breach of covenant of good faith and fair dealing; (3) violation of B&P Code §§17200, et seq.; (4) breach of contract – promissory estoppel; (5) negligent misrepresentation of fact; and (6) negligent review of plaintiff’s application for a loan modification.

                  Defendants Pennymac Corp. and Pennymac Loan Services, Inc., and Defendants JPMorgan Chase Bank and JPMorgan Chase & Co. each demur to the second, fourth, fifth and sixth causes of action. Defendants primarily contend plaintiff has failed to state a cause of action because he has not adequately alleged he is a third party beneficiary to the loan agreement between defendants and plaintiff’s deceased domestic partner, East. Plaintiff relies on the third party beneficiary theory because it is undisputed that he was not a signatory to any of the agreements at issue. The previous demurrers to these claims in the second amended complaint (“SAC”) were sustained with leave to amend regarding plaintiff’s status as a third party beneficiary. Specifically, the court found no facts in the SAC that would demonstrate the defendants were on notice of plaintiff’s alleged third party beneficiary status. (See December 28, 2015 Order Sustaining Demurrer to Second Amended Complaint.)

                  “‘The test for determining whether a contract was made for the benefit of a third person is whether an intent to benefit a third person appears from the terms of the contract. [Citation.] If the terms of the contract necessarily require the promisor to confer a benefit on a third person, then the contract, and hence the parties thereto, contemplate a benefit to the third person. The parties are presumed to intend the consequences of a performance of the contract.’ [Citation.]” (Prouty v. Gores Tech. Grp. (2004) 121 Cal.App.4th 1225, 1232, citations omitted.)  “Insofar as intent to benefit a third person is important in determining his right to bring an action under a contract, it is sufficient that the promisor must have understood that the promisee had such intent. (Cf. Rest., Contracts, § 133, subds. 1(a) and 1(b); 4 Corbin on Contracts (1951) pp. 16-18; 2 Williston on Contracts (3d ed. 1959) pp. 836-839.) No specific manifestation by the promisor of an intent to benefit the third person is required.” (Lucas v. Hamm (1961) 56 Cal.2d 583, 591.)

                  Here, plaintiff is not expressly mentioned in the loan or loan modification agreements, and he has not identified any terms in the agreements which evidence any intent to benefit him. Nor has plaintiff alleged facts sufficient to demonstrate defendants must have understood that East intended to benefit plaintiff by entering into the agreements. Plaintiff’s allegations in the TAC on this issue appear essentially the same as those found insufficient in the second amended complaint (see SAC, ¶¶ 24-27). In the TAC, plaintiff again alleges he was a third party beneficiary to the loan agreement because the real property securing the loan would later be transferred to the East Family Trust. Therefore, plaintiff alleges the original lender knew, and later defendant Chase knew or should have known, that title to the real property was in the name of the East Family Trust, which would necessarily have a beneficiary if East died. (See e.g., TAC ¶¶24-26.)  This remains too tenuous an allegation of standing to survive demurrer.

                  Consequently, the court finds plaintiff has failed to adequately allege he has standing as a third party beneficiary to bring the second, fourth, fifth and sixth causes of action. Plaintiff has had multiple opportunities to allege facts supporting this theory but has failed to identify how an additional chance to amend would allow him to correct the defect. Therefore, defendants’ demurrers are sustained without leave to amend.

                  Defendants are to draft orders consistent with this ruling.


3.      MCV-236202 Collectronics v. Newport Restaurant:

                  The motion to withdraw as attorney of record is granted. Attorney Mitchell N. Reinis is to prepare an order and properly serve all parties.


4.      SCV-249813  Weir v. Morse:

                        The Plaintiff’s motion to allow her to undertake discovery of defendant Cindy Roberson Morse’s financial condition through the use of all discovery methods available under CCP section 2019.010 is GRANTED. The grounds for the court’s ruling are based on there being a substantial probability that Plaintiff will prevail in her punitive damages claim and that the discovery is relevant to the subject matter of the action and Plaintiff’s claim for punitive damages will lead to the discovery of admissible evidence.


5.      SCV-257866 Vargas v. Cunningham Dairy:

                  Defendants’ motion to set aside default judgment entered against each of them on the grounds of inadvertence, surprise, mistake, or excusable neglect is GRANTED. (CCP section 437(b))

                  Defendants’ Answer shall be filed within 5 court days. Defendants shall draft an order consistent with this ruling.


6.      SCV-258431 Brown v. Wells Fargo:

      The hearing on the Motion for Temporary Protective Order has been continued to the June 29, 2016 Law and Motion calendar at 3:00pm in Department 19 pursuant to the stipulation of the parties.


7.      SCV-255831 Landry v. Davenport:

                  The motions in this matter have been dropped from calendar, as they have been resolved through the Demurrer Facilitator process.


© 2016 Superior Court of Sonoma County