Apr 21, 2018

TENTATIVE RULINGS

LAW & MOTION CALENDAR

Wednesday, April 18, 2018, 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) 521-6730, and all other opposing parties of your intent to appear by 4:00 p.m. today, Tuesday, April 17, 2018.  Parties in motions for claims of exemption are exempt from this requirement.

 

PLEASE NOTE:  The Court no longer provides Court Reporters for this calendar.  If they wish, the parties may confer and arrange for one of the parties to bring a privately retained Court Reporter to serve in the matter.

 

 

1.         MCV-240713, Loannow, LLC v. Koskinaris

 

            This matter is on calendar for Plaintiff’s motion for an order to deem admitted the truth of facts and the genuineness of documents in its request for admissions to Defendant.  Plaintiff brings this motion pursuant to Code of Civil Procedure section 2033.280(b) and on the grounds that Plaintiff served Defendant with requests for admissions on December 20, 2017 and Defendant has failed to serve any responses.  Plaintiff has also requested monetary sanctions in the amount of $149 for its “reasonable expenses,” which include the $60 filing fee and $89 CourtCall fee.  Defendant has not opposed the motion. 

 

            Plaintiff’s motion is GRANTED provided Plaintiff’s counsel files the Proof of Service attached to its proposed order prior to the hearing. If the Proof of Service is filed, Plaintiff’s counsel shall submit a written order to the Court that is consistent with this tentative ruling and in compliance with Rule of Court, rule 3.1312.

 

            A Case Management Conference is set for Thursday, May 31, 2018, 3:00 p.m., in Courtroom 19.  Case Management Statements are due 15 calendar days prior to the hearing.  Tentative rulings are available 3 court days prior to the Case Management Conference by viewing the court’s website at www.sonoma.courts.ca.gov or by calling (707) 521-6881, option 4.

           

 

2.         MCV-242384, KB Properties, LP v. Frisbie

 

            Appearances required. The Court’s tentative ruling is as follows: This matter is on calendar for Plaintiff KB Properties, LP’s (“Plaintiff”) motion for summary judgment.  Plaintiff is seeking summary judgment on its unlawful detainer cause of action against Defendants Bill R. Frisbie and Kitty Sue Frisbie (“Defendants”).  Plaintiff contends Defendants defaulted on their home mortgage and therefore, Plaintiff purchased the property located at 3634 Frei Road, Sebastopol, California at a trustee’s sale.  The Trustee’s Deed of Sale was dated July 28, 2017 and recorded in the Official Records of Sonoma County on July 31, 2017.  Plaintiff contends that the trustee’s sale was properly conducted and that Plaintiff is a “bona fide” purchaser of the property and therefore entitled to possession of the property.  Because Defendants have refused to vacate the property and have apparently ignored Plaintiff’s three-date notice to quit, Plaintiff filed this unlawful detainer action seeking possession of the property.  Defendants have/have not opposed the motion.

 

            Plaintiff’s Request for Judicial Notice of Exhibits A-AA is GRANTED.  Plaintiff’s motion for summary judgment is also GRANTED.    

 

            The purpose of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)  “A party may move for summary judgment…if it is contended that the action has no merit or that there is no defense to the action or proceeding.”  (Code Civ. Proc. § 437c(a)(1).)  A motion is granted when “all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”  (Code Civ. Proc. § 437c(c); see also, DuBeck v. California Physicians’ Service (2015) 234 Cal.App.4th 1254, 1263-1264.)  “The phrase “as a matter of law” is another way of saying that the evidence available to the parties, and placed before the court in support of and in opposition to the motion, raises no material issue that a trier of fact could resolve in favor of the party opposing the motion.”  (Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 756.)

 

            A property owner who wishes to end an unlawful detainer action before trial may move for summary judgment, on the ground that there is no defense to the cause of action.  (See, Code Civ. Proc. §§ 437c(a) and 1170.7.)  Summary judgment in unlawful detainer actions must be granted or denied on the same basis as for summary judgment motions in other civil actions.  (Code Civ. Proc. § 1170.7.)  Thus, a plaintiff moving for summary judgment meets his or her burden of proof by “showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action.”  (Code Civ. Proc. § 437c(p)(1).)  Under the unlawful detainer statutes, the Plaintiff needs to prove: (1) the property was sold to plaintiff pursuant to Civil Code section 2924 and title has been perfected; (2) a three-day notice was properly served; and (3) the defendant continues to possess the property.  (Code Civ. Proc. §§ 1161a(b)(3) and 1162.)  “Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”  (Ibid.) 

 

            Under section 1170.7, only 5 days’ notice of motion is required after the answer is filed.  In opposing a motion, the defendant must file and serve opposing papers no later than one court day before hearing or may oppose motion orally at hearing.  (Cal. Rules of Court, rule 3.1351.)

 

            In this case, Plaintiff has met its burden and has presented prima facie evidence that it acquired proper title to the property at a non-judicial foreclosure sale on July 17, 2017 and that the Deed Upon Sale was recorded in the Official Records of Sonoma County on July 31, 2017.  (Citing Drury Dec. at ¶¶ 2-3, Ex. A and Jones Dec. at ¶¶ 1-11, Exs. A-J.)  Plaintiff has also demonstrated that it served a three-day notice to quit to Defendants on August 1, 2017 and that when Defendants failed to vacate the property, Plaintiff filed this unlawful detainer action.  (See, Drury Dec. at ¶ 4 and RJN at Ex. A-AA.)  Accordingly, Plaintiff has met its burden and has made a prima facie showing of all elements necessary for its unlawful detainer cause of action and that Defendants do not have a viable defense.  Therefore, the burden has shifted to Defendants to demonstrate there is a triable issue of material fact.  If Defendants oppose the motion, either by written opposition or at the hearing, their argument should focus on their burden to show the existence of a triable issue of material fact in dispute through admissible evidence. 

 

 

3.         SCV-255963, Stolp v. Murphy-True, Inc.

 

            This matter is on calendar for Plaintiffs’ motion for attorneys’ fees.  Plaintiffs bring this motion pursuant to Civil Code section 1717 and Code of Civil Procedure section 1021 and on the grounds that the construction contract between Plaintiffs and Defendant included an attorney fee provision and because they prevailed on all claims brought before the jury, they are the “prevailing party” in this action and entitled to their fees.  Plaintiffs contend that they expended a total of $793,926 in attorneys’ fees in this case but have reduced their request by $275,000 which they received in settlement agreements with various subcontractors and which funds were expressly allocated towards attorneys’ fees.  Plaintiffs also confoundedly request $413,479.89 in “expert fees,” even though these fees were requested as part of Plaintiffs’ memorandum of costs and awarded in full as part of the Court’s Order on Defendant’s motion to tax costs.

 

            Defendant opposes the motion and argues that notwithstanding the fact that Plaintiffs were the “prevailing parties” in this action, their motion for attorneys’ fees should be denied in its entirety.  Defendant cites to the settlement and release agreements that Plaintiffs executed with various subcontractors, which expressly released Defendant from any and all claims, etc., “including attorneys’ fees and costs,” arising from or related to the respective subcontractor’s scopes of work on the project.  Defendant argues that because Plaintiffs expressly released Defendants from attorneys’ fees “arising from or related to” the work of the settling subcontractors but have failed to apportion the fees requested in this motion between those incurred “arising from or related to” the work of the settling subcontractors from those incurred related to the work of Defendant.  Specifically, Defendant contends that because “Plaintiffs have failed to demonstrate which portion of the claimed attorney’s fees, if any, bear no relation whatsoever to the work of [the settling subcontractors], and thus fall outside the broad release language executed by Plaintiffs,” Plaintiffs’ motion for fees should be denied in its entirety.

In their reply brief, Plaintiffs argue that the issue of the release agreements has been repeatedly litigated in this action and each time it has been raised, the Court has rejected Defendants’ argument, citing to Defendant’s motion for an initial trial on its affirmative defense, Defendant’s supplemental trial brief, and Defendant’s objection to the proposed judgment.  Plaintiffs equate the issue raised in these prior filings with respect to the effect of the release agreements to the issue raised in Defendant’s opposition to this motion for attorney’s fees.  Additionally, Plaintiffs argue that Defendant is not entitled to any offset for the attorneys’ fees sought by Plaintiffs because all of the attorneys’ fees sought in this motion “were related to the prosecution of Plaintiff claims against [Defendant].”  Finally, Plaintiffs argue that they have already paid attorneys’ fees related to the settling subcontractors and those settlements, which included express allocation of fees, were approved by the Court and found to be in “good faith.”  Plaintiffs conclude that all of the attorneys’ fees requested fall outside the settlement and release agreements and as a result, Plaintiffs should be awarded the full amount requested.  With respect to Plaintiffs’ request for $413,479.89 in “expert fees,” Plaintiffs conspicuously fail to address this issue in their reply brief and apparently concede that this request is improper based on Plaintiffs’ memorandum of costs and the Court’s prior order on Defendant’s motion to tax costs.

      

            Plaintiffs’ Request for Judicial Notice of Exhibits A-C in Support of the Motion is GRANTED.  Defendant’s Request for Judicial Notice of Exhibits A-D in Opposition to the Motion is also GRANTED.  Plaintiffs’ request for $413,479.89 in “expert fees” is DENIED, in its entirety, as this issue has already been addressed in Plaintiffs’ memorandum of costs and the Court’s ruling on Defendant’s motion to tax costs.  With respect to Plaintiffs’ motion for attorneys’ fees, the Court disagrees with Plaintiffs’ argument that the issue of the release agreements, as it specifically relates to Plaintiffs’ request for fees, can be equated with the release issues already addressed and decided by the Court.  To the contrary, the Court finds that this issue of the release as it relates to Plaintiffs’ request for attorneys’ fees is distinguishable from the issues previously litigated.  Plaintiffs’ settlement agreements with the respective subcontractors expressly and unambiguously released Defendant from all attorneys’ fees “arising from or related to” the scopes of work of those settling subcontractors.  The Court has broad discretion to “apportion or not apportion attorney fees depending upon the facts and circumstances before it,” and that fees need not be apportioned when they are “inextricably intertwined” between issues common to both a cause of action in which fees are proper and one in which they are not allowed.  (See, Calvo Fisher & Jacob LLP v. Lujan (2015) 234 Cal.App.4th 608, 628; see also, Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1111; Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 129-130.)  In this case however, even a cursory review of Plaintiffs’ supporting invoices demonstrates that Plaintiffs have repeatedly included fees in their request that arise from or are related to the scopes of work of the settling subcontractors and subsequent litigation against those subcontractors.  Thus, these fees are not “inextricably intertwined” with the fees incurred to prosecute the case against Defendant, were released as part of Plaintiffs’ settlement agreements with the subcontractors, and should be and allocated out of Plaintiffs’ fee request and any subsequent award. 

 

            Accordingly, the Court invites Plaintiffs to file a supplemental declaration that identifies and removes any attorneys’ fees incurred to litigate claims “arising from or related to” the settling subcontractor’s respective scopes of work and explain to the Court (and to Defendant) the process used to identify these fees, such as keyword or name searches.  Plaintiffs shall file its supplemental declaration, if any, no later than April 27, 2018.  Defendant shall have until May 4, 2018 to file a supplemental brief challenging any remaining fees that Plaintiffs request which Defendant contends were incurred to litigate claims “arising from or related to” the settling subcontractors’ respective scopes of work.  The hearing on this motion shall be continued to Wednesday, May 23, 2018 at 3:00 p.m. in Department 19.    

 

 

4.         SCV-256969, Small v. Lightfoot

 

            This matter is on calendar for Illinois Midwest Insurance Agency’s (“Midwest”) motion to intervene on Plaintiff’s Complaint for general negligence.  Midwest brings this motion pursuant to Code of Civil Procedure section 387(a) and on the grounds that Midwest is a workers’ compensation insurer and was obligated to pay workers’ compensation benefits to employees of Defendant, including Plaintiff.  Plaintiff opposes the motion and argues that Midwest lacks standing to intervene in this action because this action is governed by the Medical Injury Compensation Reform Act (“MICRA”) and therefore, Midwest is barred from seeking recovery from either Plaintiff or Defendant under Civil Code section 3333.1.  In its reply, Midwest argues that Plaintiff’s new theory that her action has been pursued under MICRA and therefore, subrogation is barred by section 3333.1 is inapplicable based on the simple fact that Plaintiff filed a worker’s compensation claim with her employer and Defendant paid worker’s compensation benefits pursuant to that claim.  

 

            Midwest’s motion to intervene in this action is GRANTED. 

 

            The Code provides that “[t]he court shall, upon timely application, permit a nonparty to intervene in the action or proceeding if either of the following conditions is satisfied: [a] provision of law confers an unconditional right to intervene”; or “[t]he person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person’s ability to protect that interest, unless that person’s interest is adequately represented by one or more of the existing parties.”  (Code Civ. Proc. § 387(d)(1)-(2).)  “[I]t is the general rule that a right to intervene should be asserted within a reasonable time and that the intervenor must not be guilty of an unreasonable delay after knowledge of the suit.”  (Allen v. Cal. Water & Tel. Co. (1947) 31 Cal.2d 104, 108; see also, Ziani Homeowners Assn. v. Brookfield Ziani, LLC (2015) 243 Cal.App.4th 274, 281-282 [“timeliness…should be determined based on the date the proposed interveners knew or should have known their interests in the litigation were not being adequately represented.”].)  However, timeliness alone is “hardly a reason to bar intervention when a direct interest is demonstrated and the real parties in interest have not shown any prejudice other than being required to prove their case.”  (Truck Ins. Exchange v. Superior Court (Transco Syndicate No. 1) (1997) 60 Cal.App.4th 342, 351 [it is an abuse of discretion to deny the motion based solely on its untimeliness when the real parties in interest had not shown any prejudice “other than being required to prove their case.”].)  Here, although Midwest inexplicably and without any explanation waited nearly 2-1/2 years to seek this relief after it had notice of the underlying complaint, Plaintiff has failed to demonstrate, or even address, that it will suffer any prejudice if Midwest’s motion is granted and leave to intervene is permitted.  Instead, Plaintiff has argues solely the merits of Midwest’s case, which the authority clearly provides is not sufficient to deny intervention.  Accordingly, Plaintiff has failed to meet its burden to demonstrate “prejudice” and therefore, the motion is granted.  Midwest shall file its Complaint in Intervention no later than April 18, 2018.    

 

            Midwest’s counsel shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule of Court, rule 3.1312.



5.         SCV-260513, Evasiuk v. Hotel Healdsburg, LLC

 

            This matter is on calendar for Defendant’s motion to compel Plaintiff to submit to a deposition beyond the normal geographical limits and to compel Plaintiff to submit to a medical examination also at a location beyond the geographical limits.  Defendant brings this motion pursuant to Code of Civil Procedure sections 2025.260 and 2032.320(b) and on the grounds that Plaintiff currently resides in Texas and that it is in the interests of justice to require her to appear for a deposition and medical examination at the same time in Sonoma County, where this action is venued and set for trial.  Defendant has attempted to meet and confer with Plaintiff to no avail.  Additionally, Plaintiff has not filed an opposition to this motion.

 

            Defendant’s motion is GRANTED.  Plaintiff is ordered to appear for a deposition and a medical examination in Sonoma County no later than May 4, 2018.  Defendant shall pay the reasonable travel expenses associated with the deposition and medical examination. 

 

            The code provides in relevant part that “[a] party desiring to take the deposition of a natural person who is a party to the action…may make a motion for an order that the deponent attend for deposition at a place that is more distant than that permitted under Section 2025.250.”  (Code Civ. Proc. § 2025.260(a).)  “In exercising its discretion to grant or deny this motion, the court shall take into consideration any factor tending to show whether the interests of justice will be served by requiring the deponent’s attendance at that more distant place, including, but not limited to, the following: (1) Whether the moving party selected the forum; (2) Whether the deponent will be present to testify at the trial of the action; (3) The convenience of the deponent; (4) The feasibility of conducting the deposition by written questions under Chapter 11 (commencing with Section 2028.010), or of using a discovery method other than a deposition; (5) The number of depositions sought to be taken at a place more distant than that permitted under Section 2025.250; (6) The expense to the parties of requiring the deposition to be taken within the distance permitted under Section 2025.250; (7) The whereabouts of the deponent at the time for which the deposition is scheduled.”  (Code Civ. Proc. § 2025.260(b).)  “The order may be conditioned on the advancement by the moving party of the reasonable expenses and costs to the deponent for travel to the place of deposition.”  (Code Civ. Proc. § 2025.260(c).)  In this case and in consideration of the factors stated above, the Court concludes that the interests of justice will be served by requiring Plaintiff to appear to a deposition in Sonoma County.

 

            With respect to the medical examination, the Code provides that “[t]he court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.”  (Code Civ. Proc. § 2032.320(a).)  “If the place of the examination is more than 75 miles from the residence of the person to be examined, an order to submit to it shall be entered only if both of the following conditions are satisfied: (1) The court determines that there is good cause for the travel involved [and] (2) The order is conditioned on the advancement by the moving party of the reasonable expenses and costs to the examinee for travel to the place of examination.”  (Code Civ. Proc. § 2032.320(e)(1)-(2).)  Again, Defendant has demonstrated sufficient “good cause” for the Court to compel Plaintiff to appear for a medical examination in Sonoma County, the venue for this action. 

 

            Defendant’s counsel shall submit a written order to the Court that is consistent with this tentative ruling, that is in compliance with Rule of Court, rule 3.1312, and that is in compliance with Code of Civil Procedure section 2032.310(b).

 

 

6.         SCV-260741, Vertical Harvest, Inc. v. Griggs

 

            CONTINUED to Wednesday, May 23, 2018, at 2:00 p.m. at the request of moving counsel.

 

 

7.         SCV-261303, Rangaves v. Sonoma County Junior College District

 

            Continued by stipulation and order filed April 16 to Wednesday, May 9, 2018 at 3:00 pm in Department 19.

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