Oct 05, 2015


TUESDAY, OCTOBER 6, 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, OCTOBER 5, 2015.  Any party requesting an appearance must notify all other parties of their intent to appear.


1.  SCV-254229 Delfino v. Nationstar:

This is on calendar for Defendants Nationstar, Bank of America, Recontrust, and Fremont Investment’s (the Defendants) motion for judgment on the pleadings as to the Second Amended Complaint (SAC). The Defendants contend that the SAC fails to state a claim under CC § 2923.7(b) because there are no allegations that the Plaintiff ever requested a  single point of contact. Further, the Defendants argue that the Plaintiff’s allegations of a violation of CC § 2923.6 for “dual-tracking” are moot on account of the notice of trustee’s sale expiring by operation of law. The Defendants also argue that the Third Cause of Action for Misrepresentation fails to allege any misrepresentation. The Defendants also contend that the cause of action for rescission fails as it does not allege that the Plaintiff has, or has offered to, restore the Defendants to their status quo ante.

The Plaintiff opposes, arguing that the claim under CC § 2923.7(b) is moot only as to her request for injunctive relief. Further, the Plaintiff notes that this court has already found that the allegations in the operable compliant were sufficient to allege violations of the HOBR, and for misrepresentation. Further, the Plaintiff argues that the SAC presents sufficient allegations to state a claim for rescission.

A motion for judgment on the pleadings is very similar to a general demurrer. Courts accept as true the facts properly plead in the pleadings.  (See CCP § 438; and Smiley v. Citibank (1995) 11 Cal. 4th 138, 145-146; Cloud v. Northrop Grumman Corp. (1998) 67 Cal. App. 4th 995, 999.) When there is a reasonable possibility that a defect in pleading can be cured by amendment, the trial court considering motion for judgment on pleadings abuses its discretion by not granting leave to amend. (See Mendoza v.Rast Produce Co., Inc. (2006) 140 Cal.App.4th 1395.)

Here, the court has already issued a ruling on the Defendants demurrer to the First Amended Complaint. After that ruling, the Plaintiff filed the SAC. The court notes that on ruling on the earlier demurrer it found:


[A]lleged 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.)

Further, the court found that: “the FAC does satisfy the elements for misrepresentation. (See FAC ¶¶ 73-101)”

With respect to the cause of action for rescission, the SAC adds an allegation that the Plaintiff offers to restore “everything of value” to the Defendants. (SAC ¶ 113.) This cures the defect that was pointed out in the ruling on the demurrer to the FAC. With respect to the Fourth Cause of Action for breach of the covenant of good faith and fair dealing, the court has already found that the allegations are sufficient to state a cause of action. 

The court notes that the cause of action for declaratory relief continues to add nothing that cannot be determined in the "main action." (See Hood v. Superior Court (1995) 33 Cal.App.4th 324.)

Accordingly, the Defendants motion is granted as to the Sixth Cause of Action for Declaratory Relief, and denied in all other respects. The Defendants are to draft an order consistent with this ruling.


2.  SCV-254820 Hogan v. Cenlar:  

            This is on calendar for Defendants DeAngelis Construction Inc., Marvin DeAngelis, Gary Pope, and DeAngelis Pope Home’s (collectively the Defendants) demurrer to the Third Amended Complaint (TAC). The Defendants demur to the entire TAC on the grounds that it fails to state facts sufficient to support any liability against them, and that the matter is barred by the doctrines of res judicata and collateral estoppel. The Defendants also argue that the First Cause of Action for the foreclosure of the alleged CC § 3050 lien fails to level any allegations against the Defendants—the Defendants make the same arguments as to Third and Fourth causes of action. The Defendants also argue that the Complaint is barred by the applicable statutes of limitation, and is fatally vague and uncertain. The Defendants also assert a demurrer under CCP § 430.10(c), asserting that there is another action pending between the same parties.

The Plaintiffs oppose, arguing that they have alleged sufficient facts to support the foreclosure of their lien against the Subject Property. The Plaintiffs offer no argument with respect to the Second Cause of Action, except to say that the issue is “complicated” and “deserves separate briefing.” The Plaintiffs seem to concede that they need to amend their Third Cause of Action, as they contend that DeAngelis has engaged in several unpled activities that violate BP § 17200. The Plaintiffs also concede that DeAngelis is not implicated by the allegations in the Fourth Cause of Action.

Res Judicata/Collateral Estoppel

A demurrer tests the legal sufficiency of a pleading and challenges only defects appearing on the face of the pleading under attack, or from matters outside the pleadings that are judicially noticeable.  (CCP Sec. 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) If a party demurrers generally to the entire complaint and any cause of action is properly stated, the demurrer must be overruled.  (Quelimane Co. Inc. Stewart Title Guar. Co. (1986) 19 Cal. 4th 26, 28.) For purposes of ruling on a demurrer to a complaint, all material facts properly pleaded are assumed to be true no matter how unlikely or improbable.  (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal. App.  3d 593, 604; Serrano v. Priest (1971) 5 Cal.3d 584, 591.)

A demurrer is not the appropriate procedure for determining the truth of disputed facts or what inferences should be drawn where competing inferences are possible. (CrossTalk Productions Inc. v Jacobson (1998) 65 Cal. App. 4th 631, 635.)

A general demurrer lies where the facts alleged in the complaint or matters judicially noticed show that plaintiff is seeking relief from the same defendant on the same cause of action as in a prior action, or is asserting an issue decided against plaintiff in the prior action. (Boeken v. Philip Morris (2010) 48 Cal.4th 788, 792 [plaintiff's wrongful death action barred by her prior voluntary dismissal of loss of consortium action against same defendant]; Gabriel v. Wells Fargo Bank, N.A. (2010) 188 Cal.App.4th 547, 556 [complaint barred by collateral estoppel].)

            Here, the parties are undoubtedly the same as those in the SCV 230846 case. The question devolves to whether the Plaintiffs are seeking to enforce the same rights here as they did in SCV 230846; the answer is yes. The court notes that the Plaintiffs were already awarded a judgment in SCV 230846 against the Defendants for exactly the same relief they seek in this action. The Plaintiffs are attempting here to relitigate the issues decided in the decade long litigation with the Defendants in SCV 230846. Indeed, the Plaintiffs list, in the TAC, the relief they seek—relief that they have already obtained in a judgment against the Defendants.

The Plaintiffs attempt to parse the causes of action goes against the relevant analysis—whether the Plaintiffs are seeking to enforce the same primary right. Courts do not apply collateral estoppel and res judicata “with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality.” (Ashe v. Swenson 397 U.S. 436, 444; accord, People v. Santamaria (1994) 8 Cal.4th 903,  912.) Instead: “ ‘Res judicata precludes piecemeal litigation by splitting a single cause of action or relitigation of the same cause of action on a different legal theory or for different relief.’ ” (Weikel v. TCW Realty Fund II Holding Co. (1997) 55 Cal.App.4th 1234, 1245.) Here, the Plaintiffs are attempting to vindicate the same primary right against the Defendants. Moreover:  “‘The doctrine of res judicata rests upon the ground that the party to be affected ... has litigated, or had an opportunity to litigate the same matter in a former action in a court of competent jurisdiction, and should not be permitted to litigate it again to the harassment and vexation of his opponent. Public policy and the interest of the litigants alike require that there be an end to litigation.’ ” (Needelman v. DeWolf Realty Co., Inc. (2015) 239 Cal.App.4th 750, 761, as modified on denial of reh'g (Aug. 18, 2015), review filed (Aug. 28, 2015) [emphasis added] quoting  Fairchild v. Bank of America (1958) 165 Cal.App.2d 477, 482, 332 P.2d 101, italics added.) Here the Plaintiffs had sufficient opportunity to raise the issues raised by the TAC in SCV 230846.

Even more telling is the fact that the Plaintiffs use the TAC to inform this court regarding the actions of the Defendants in SCV 230846. Such actions offend the policies underlying res judicata. It appears that the Plaintiffs are utilizing the TAC to collaterally attack the actions taken by the Defendants in SCV 230846. (See e.g. TAC ¶ 81.) Looking to the allegations in the Second Cause of Action only reinforces the court’s opinion that res judicata applies. There, the Plaintiffs are seeking fees and costs through the TAC from actions taken in SCV 230846. (See e.g. TAC ¶ 89.) Allegations such as these make it appear as if the Plaintiffs are trying to move their fight against the Defendants in SCV 230846 to the instant case.

The Third Cause of Action for violations of BP § 17200 fails on account of there being insufficient allegations against the Defendants. The TAC does not adequately allege a predicate wrong against the Defendants to support an unfair business practices claim. The Plaintiffs claim that they can amend the TAC to allege sufficient facts, including violations of PC § 496. However, all of the claims seem to have arisen from other litigation, and again would be barred by the doctrine of res judicata. Indeed, the appellate court has already ruled and rejected the Plaintiffs claims under PC § 496. The Plaintiffs also argue that they can amend to add allegations that the Defendants made false claims against the Plaintiffs in the bankruptcy cases filed by the Plaintiffs. The Plaintiffs, however, present no specifics of these claims, or any controlling legal authority that such claims would constitute violations of BP § 17200. Moreover, the Plaintiffs contend that they can add allegations to the TAC that the Defendants “retain[ed] funds” wrongfully—claims that appear to be derivative of SCV 230846, and would be barred by res judicata. It is well settled that it is not up to the court to figure out how the complaint can be amended to state a cause of action. Rather, the burden is on plaintiff to show in what manner he or she can amend the complaint, and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d a335, 349; Medina v. Safe-Guard Products (2008) 164 Cal.App.4th 105, 112, fn. 8; Heritage Pac. Fin'l, LLC v. Monroy (2013) 215 Cal.App.4th 972, 994 [court did not abuse discretion in denying leave to amend where, despite ample opportunity, plaintiff failed to demonstrate it could cure defect].) The TAC represents the Plaintiffs’ fourth attempt to allege wrongdoing by the Defendants, and they have failed to do so, and fail to present any cogent legal theory on why they should be provided a fifth attempt.

The Plaintiffs concede that the Fourth Cause of Action fails to allege facts sufficient to state a cause of action against the Defendants.

Accordingly, the demurrer to the TAC is sustained without leave to amend. The parties’ respective requests for judicial notice are granted. The Plaintiffs objections are overruled in toto. The Defendants shall draft an order consistent with this ruling.


3.  SCV-257301 Beatty v. Ocwen:

By stipulation of the parties, the hearing on the OSC re Preliminary Injunction is continued to the law and motion calendar on December 15, 2015 at 8:30am in Department 19.


4.  SCV-252317 Messer v. Austin Creek:

            This is on calendar for Plaintiffs’ unopposed motion for attorney fees, expenses and service payment. The motion is granted insofar as it is consistent with the Final Order and Judgment entered by this court on August 10, 2015. The Plaintiffs are to draft an order consistent with this ruling.


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

            This is on calendar for Defendants Redwood Oil Company dba Aztec Grill and dba Redwood Market’s (the Defendants) unopposed motion for summary judgment. The Defendants are named in the Fourth Cause of Action for General Negligence, which alleges that the Defendants maintained signage that was “directly in the way of McGillicuddy and Defendant Foster obscuring their sight lines making it impossible for these vehicles to see each other.” (TAC ¶ 37.) The Defendants contend that the undisputed evidence demonstrates that the signage maintained at the location did not obscure either McGillicuddy or Foster’s line of sight, and therefore could not have contributed to the alleged accident. (See UMF Nos. 7 and 10.)

The Plaintiffs have not opposed the instant motion.

A summary judgment may be granted where it is shown that the entire “action has no merit or that there is no defense to the action or proceeding.” (CCP §437c(a).) Once the moving party has met its burden, the burden shifts to the other side to show that a triable issue of one or more material facts exist precluding grant of the motion. (See CCP §437c(p); Saelzler v. Advanced Group 400 (2001) 25 Cal. 4th 763, 780.)

Here, the Defendants have demonstrated through undisputed evidence that their signage did not obscure McGillicuddy or Foster’s line of sight. The Plaintiffs have not opposed the motion and, therefore, have not established that there are triable issues of fact in dispute.

Accordingly, the Defendants motion is granted in its entirety. The Defendants shall draft an order consistent with this ruling.


6.  SCV-255031 Batko v. Lithia:

            This is on calendar for Plaintiff’s motion for sanctions. The Plaintiff contends that Defendant Lithia has failed to comply with this court’s April 21, 2015 order that required the Defendant to produce PMK witnesses for deposition. The Plaintiff argues that despite his concerted efforts, the Defendant have not produced the PMK witness. Based on the alleged failure to comply, the Plaintiff seeks monetary sanctions in the amount of $1,682, evidentiary sanctions prohibiting certain individuals from testifying, and ordering that the Defendant produce the individuals or the Defendant’s answer will be stricken.

The Defendant opposes, arguing that it has not willfully disobeyed the court order. The Defendant contends that it has been in contact with the Plaintiff, and that the depositions were delayed in an effort to resolve the matter. The Defendant argues that the Plaintiff has not provided dates and times for the depositions to take place. The Defendant notes that the Plaintiff is in San Diego, and is attempting to depose 6 different people—making logistics challenging.

Generally, only monetary sanctions may be imposed without a prior court order compelling discovery . However, once an order compelling discovery has been made by the court, a broader range of sanctions is available for failure to make discovery. (Steven M. Garber & Assocs. v. Eskandarian (2007) 150 Cal.App.4th 813, 820.)  Moving party need only show the failure to obey an earlier discovery order.  The burden then shifts to the party seeking to avoid sanctions to establish a satisfactory excuse for his or her conduct. (Corns v Miller (1986) 181 Cal.App. 3d 195, 201.) The following types of sanctions are authorized for discovery violations: monetary sanctions; issue sanctions (designating facts as established); evidence sanctions (barring introduction of evidence); —terminating sanctions (striking pleadings, dismissal or default); and contempt.  (CCP § 2023.030.)

Here, the court entered an order compelling the deposition testimony of the within ten days of the order. From the evidence submitted, it appears that the parties delayed the depositions in light of their settlement discussions. When the settlement discussion broke down, the Plaintiff sought to take the delayed depositions—the Defendant contends that the Plaintiff failed to provide dates for the depositions. It appears from the emails provided, that the Plaintiff provided for a deposition date on September 21, 2015. To date, however, the depositions have not gone forward.

The evidence before the court demonstrates that the parties delayed the depositions to accommodate mediation—this is why the initial order to have the depositions taken within 10 days was not complied with.  After that, the parties were unable to agree on dates; but neither party appears to be at fault. Accordingly, the court will not issue the sanctions sought by the Plaintiff; however the court will order the Plaintiff to provide dates for the depositions within 5 days of this order, and Defendant to make the PMKs available for deposition within 10 days of those dates—not to exceed 30 days from the date of written notice of this order. The Plaintiff shall draft an order consistent with this ruling.


7.  SCV-256178 Sunde v. Larkin:

            (1) This is on calendar for Defendants motion to compel discovery and deposition. This  case alleges that the Plaintiff was injured in an automobile vs. bicycle accident. The Plaintiff filed suit against the Defendants, who in turn, served form interrogatories and a request for production of documents. The Defendant also noticed the Plaintiff’s deposition. The Plaintiff served unverified responses on the Defendants, and failed to sit for her noticed depositions. The Defendants engaged in a meet and confer in an attempt to resolve the discovery dispute. The Defendants claim that the Plaintiff has failed to verify her responses and refuses to sit for her deposition.

This motion followed, with a request for sanctions.

The motion is unopposed.

Here, the discovery was served, and the Plaintiff failed to provide verified response.  As a result the Defendants are entitled to an order compelling  responses. (See CCP § 2030.290(b).) Further, the Plaintiff’s deposition was noticed, and the Plaintiff failed to appear. The Defendants are entitled to an order compelling her compliance. (CCP § 2025.450.)

Accordingly, the motion is granted in its entirety, the Plaintiff is order to serve verified responses on the Defendants within 10 days of this order, and ordered to sit for her deposition within 20 days of this order. Further, the Plaintiff is order to pay $345 in sanctions within 30 days.  The Defendants are to draft an order consistent with this ruling.

            (2) Attorney Flahavan’s motion to be relieved as counsel is Granted.


8.  SCV-256887 Fowler v. Driversdoor:

            This is on calendar for Defendant Andy Bruno’s motion for good faith settlement. The Defendant has settled with the Plaintiff for $60,000. Of that amount, the Defendant’s insurance is contributing $49,990, and the Defendant is contributing $10,010. The Defendant has offered into evidence an income and expense declaration (filled out jointly with his wife), and indicates that the Defendant is contributing all of the applicable insurance proceeds, and that he does not have any more liquid assets to increase the settlement amount.

Co-Defendant Speedway (Speedway) opposes the instant motion, arguing that the settlement is grossly disproportionate to Bruno’s potential liability. Speedway notes that it was Bruno’s direct negligence that caused the Plaintiff’s injuries—Speedway contends that Bruno was under the influence at the time of the incident; Bruno denies that allegation. Speedway notes that the Plaintiff’s damages are well above $2 million dollars, making the $60,000 grossly disproportionate. Speedway also questions the veracity of Bruno’s claim of no assets. Speedway claims the right to conduct additional discovery to determine whether Bruno has additional assets to contribute to the settlement.

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 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 plaintiffs 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 Bruno tends to show that Bruno 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 Bruno does not have the financial wherewithal or insurance proceeds to contribute more to a settlement with the Plaintiff. Case law is clear, where policy limits are tendered by a joint tort-feasor who has limited financial resources, the settlement is made in good faith. 

That being said, the court is aware of the fact that Speedway has not had an opportunity to investigate Bruno’s claims with respect to his finances. Accordingly, the motion will be continued for 60 days, to allow Speedway to conduct discovery into Bruno’s financial condition, as it pertains to this settlement. Accordingly, the motion is continued to December 8, 2015. Defendant Bruno shall draft an order consistent with this ruling.


9.  SPR-18578 Est of Frank Doyle:

            The hearing in this matter is continued to the law and motion calendar on October 13, 2015 at 8:30am in Department 19.


10.  SPR-85914 Matter of Vera Violet Wunsch Trust:

            The hearing in this matter will be continued to a future date to be determined.  Notice will be sent to the parties. 



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