Aug 01, 2015


TUESDAY, JULY 28, 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, JULY 27, 2015.  Any party requesting an appearance must notify all other parties of their intent to appear.

1.  SCV-256375 Church v. Masters:

            This is on calendar for Defendants Lauren and Linda Elkins’ (“Defendants”) demurrer to Plaintiff Ronald Church’s (“Plaintiff”) First, Second, Third, and Fourth Causes of Action.

Waste and Negligence Claims

Plaintiff admits in his opposition that the First and Second Causes of Action for Waste and Negligence are only directed toward Defendant John Masters. The demurrer is sustained as to the First and Second Causes of Action as asserted against Defendants.

Partition by Sale

An action for partition may be commenced by: (1) a co-owner of personal property, or (2) an owner of an estate or inheritance, estate for life, or estate for years in real property where such property or estate is owned by several persons concurrently or in successive estates. (Cal. Civ. Code § 872.210 subd. (a).) Plaintiff alleges that he alone holds the fee simple and remainder interest in the property, subject to the successive life estates of Defendant John Masters and then Debora E. Fruth. (FAC, ¶ 21.) Despite the Defendants’ unfounded claim that the other defendants are all merely “beneficiaries” of the owner, and not co-tenants, Plaintiff alleged that there are successive estates and is therefore rightfully maintaining this action.

Furthermore, Cal. Civ. Proc. § 872.510 requires the plaintiff in a partition of real property to “join as defendants in the action all persons having or claiming interest of record…in the estate as to which partition is sought.” As lienholders, Defendants are required parties to this cause of action. The demurrer is overruled as to the Partition by Sale cause of action.

Declaratory and Injunctive Relief

The Defendants argue that the Third and Fourth Causes of Action are defective, in that they are requests for relief, not causes of action, and fail to properly allege facts sufficient to support the relief the Plaintiff seeks.

The Third Cause of Action seeks the remedy of an injunction; a request for an injunction is not a cause of action. (See Shell Oil Co. v. Richter (1942) 52 Cal.App.2d 164, 168; see also McDowell v. Watson (1997) 59 Cal.App.4th 1155, 1159 [quoting Shell Oil].)  Accordingly, the Defendants demurrer to the Third Cause of Action is sustained, with leave to amend.

The Fourth Cause of Action, however, seeks declaratory relief with respect to the validity of the Defendants’ non-judicial foreclosure under the deed of trust. (See e.g. FAC ¶¶ 35-36.) The allegations, however, do not entitle the Plaintiff to the relief he seeks. As pointed out by the Defendants, the conveyance of the subject property did not trigger the acceleration clause—and thus could not support the statute of limitations argument presented in the complaint. (See CC § 2924.6(a)(4).) As such, the demurrer to this cause of action is sustained, with leave to amend.

Accordingly, the Defendants demurrer to the partition cause of action is overruled, however the balance of the demurrer is sustained, with leave to amend.

Plaintiff is to draft an order consistent with this ruling.


2.  SCV-256778 David v. Lithia:

This is on calendar for Defendant’s Lithia of Santa Rosa (“Defendant”) concurrently filed Demurrer and Motion to Strike. Plaintiff Katelyn E. David (“Plaintiff”) opposes. Defendant’s request for judicial notice is granted as to Exhibits “A” and “B” and denied as to Exhibit “C.”


Defendant demurs to the entire complaint, as well as the following causes of action: (1) Breach of Contract; (4) CLRA violations; (5) Unfair Business Practices; (6) Fraud; and (7) Injunctive Relief. Defendant’s demurrer is overruled in its entirety, as the Complaint states facts sufficient to support each cause of action stated  therein.

Breach of Contract

            Plaintiff has alleged all of the elements of a breach of contract claim. The Defendant’s argument that they have merely refused to arbitrate a class action is not pled in the complaint, nor is there any factual support for such a claim.

Violation of the CLRA

Cal. Civ. Code § 1782(a) does require that the consumer: (1) notify the person alleged to have employed unlawful practices;, and (2) demand that that person correct, repair, replace, or otherwise rectify the goods alleged to be in violation at least 30 days or more prior to the commencement of an action for damages pursuant to the CLRA. Defendant alleges that the notice did not contain any mention of an alleged complaint of the failure to arbitrate the class action, and therefore the notice is insufficient. However, in Lafferty v. Wells Fargo Bank (2013) 213 Cal.App.4th 545, 566, the court held that a demurrer was an improper “procedural vehicle”  to determine whether the CLRA notice was deficient where the face of the pleading describes how the plaintiffs complied with the CLRA notice requirement, and the notice was timely. Therefore, as Plaintiff has alleged that she provided the proper notice, the demurrer is overruled.

Unfair Business Practices

Defendant demurs to Plaintiff’s fifth cause of action for violation of the Unfair Competition Law (“UCL”), relying on the same unfounded argument that they rightfully refused to arbitrate a class action.

To allege a cause of action for Unfair Business Practices, a pleading must allege a “business practice” that is “forbidden by law.” (Olson v. Cohen (2003) 106 Cal.App.4th 1134, 1214.) Plaintiff has alleged that both the Defendant’s alleged refusal or failure to arbitrate disputes of aggrieved consumers despite the arbitration clause and the Defendant’s alleged violation of the “single document rule” of the ASFA are unfair business practices. Defendant’s allegations of a class action suit are irrelevant.  As a result, the demurrer is properly overruled.


When fraud is alleged against a corporation plaintiffs must (at least) allege the four elements from Tarmann referred to by Defendant. However, in Tarmann the court acknowledges that there is an exception to this rule when the allegations indicate that the defendant “must necessarily possess full information concerning the facts of the controversy.” (Id. at 158.) The exception did not apply in Tarmann because the defendant had “no more reason to know who made the allegedly false representations” than the plaintiff; where an employee of defendant had allegedly made misrepresentations to plaintiff regarding their intention to pay for repairs to her vehicle, and plaintiff did not know the names of the employee. (Id.)

Here, Defendant is in a better position to know who chose the RISC, and who allegedly made the decision to fraudulently deceive Plaintiff and other consumers with the arbitration clause. Therefore, the pleading requirements are relaxed, and the demurrer is overruled.

Injunctive Relief 

Defendant demurs to the claim for injunctive relief on the grounds that (1) there are no facts suggesting Defendant does not intend to arbitrate individual claims, as opposed to class actions; and (2) Plaintiff is seeking an ordinary damage award as well and is therefore precluded from seeking injunctive relief. The class action theory is, again, irrelevant on demurrer. Additionally, seeking additional forms of damages does not preclude Plaintiff from seeking injunctive relief. Civ. Code § 3422 allows an injunction to be granted to prevent the breach of an obligation where “pecuniary compensation would not afford adequate relief.” Also, to obtain injunctive relief, it is necessary that the Plaintiff allege an “irreparable injury, i.e., a factual showing that the wrongful act constitutes an actual or threatened injury to property of personal rights which cannot be compensated by an ordinary damage award.”

However, this is not to say that if a Plaintiff seeks damages along with injunctive relief, they are necessarily afforded adequate relief and did not suffer an irreparable injury. Plaintiff alleges that Defendant’s continued use of the same RISC form constitutes an ongoing violation of the CLRA and the Business and Professions Code. (Complaint, ¶ 158.) Therefore, it is possible that ordinary damages would not afford adequate relief and the demurrer is overruled as to the claim for injunctive relief.

Settlement Documents

It is not relevant whether evidence will be admissible on demurrer. “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) Therefore, it is sufficient that the Plaintiff has alleged in her Complaint that the Defendant made these statements, and admissibility of the document is irrelevant.

            Defendant’s motion to strike is denied in its entirety.

Entire Complaint

            Defendant’s motion to strike is denied as to the complaint as a whole, as Plaintiff’s allegations are not inconsistent with its attached exhibits and the supposed “settlement document” is not an offer to compromise.

Defendant contends that the document titled “Confidential Settlement Document” is inadmissible under Evidence Code § 1152, and therefore cannot be used to support “any cause of action.” However, labeling a document as such does not make it so.

Under Evid. Code § 1152 subd. (a), offers to compromise are inadmissible to prove one’s liability for the loss or damage alleged. “In considering whether a person's statement amounts to an ordinary admission or constitutes an offer of compromise, the intention of the party is dispositive.” (Moving Picture etc. Union v. Glasgow Theaters, Inc. (1970) 6 Cal.App.3d 395, 402.) “[I]f the party making the proposal apparently intended to make no concessions but to exact all that he deemed himself entitled to, the proposal is an ordinary admission against interest and not an attempt to compromise.” (Id.) Defendant’s purported “offer to compromise” makes no reference to an offer to settle or compromise.

Exemplary Damages 

Plaintiff’s punitive damages claim is based in her claim for fraud in which she alleges that the Defendant misrepresented that they would pay the arbitration fee, and subsequently refused after inducing reliance from Plaintiff. (Complaint ¶¶ 148-154.)

Exemplary or punitive damages are only recoverable upon a showing of fraud, malice, express or implied, or oppression. (Clark v. McClurg (1932) 215 Cal. 279, 282.) Plaintiff has adequately alleged a claim for fraud, and supports her conclusions with factual allegations. As such, there are no grounds to strike the mention of punitive damages as they are not irrelevant, false, or improper. The motion to strike is denied as to ¶ 166 on this ground.

Declaratory Relief

“A plaintiff is not required to label the complaint one for declaratory relief or allege a separate cause of action for declaratory relief. All that is required is that the plaintiff allege facts showing an ‘actual controversy’ exists and request the court to adjudicate the parties' rights and duties.” (Olszewski v. Scripps Health (2003) 30 Cal. 4th 798, 807; CCP § 1060.) Therefore, Plaintiff is not required to plead a cause of action for declaratory relief as long as she can allege an actual controversy exists, and she is not violating CRC 2.112. Plaintiff has alleged an actual controversy: that Defendant continues to use the same Contract, and that their refusal to arbitrate constitutes an “ongoing and willful deception of the car-buying public on the part of Lithia-SR and, therefore, poses an ongoing and continuing danger to the car-buying public.” (Complaint ¶ 157.) Therefore, the motion to strike is denied as to the prayers for relief (¶¶ 164-165).

Injunctive Relief

Defendant reiterates its argument on demurrer that Plaintiff is not entitled to injunctive relief because she has also requested a remedy at law. Again, this argument fails as the two are not mutually exclusive. The motion to strike is denied as to ¶¶ 168-170.

CLRA Pre-Suit Notice Requirement

Defendant moves to strike ¶¶164, 166, 168, 169, and 170, requesting relief under the CLRA, because plaintiff has failed to comply with the CLRA’s pre-suit notice requirement. The CLRA requires that the consumer notify the prospective defendant at least 30 days prior to commencing suit and demand that they rectify the violation. (Civ. Code § 1782.)

First, the notice requirement is not necessary for an action for injunctive relief. (Morgan v. AT&T Wireless Services, Inc. (2009) 177 Cal.App.4th 1235, 1260; Civ. Code § 1782 subd. (d).) Therefore the motion to strike is denied as to ¶¶ 168-170 which all request injunctive relief.

Second, Paragraph 164 requests relief under Civ. Code § 1793.2, not the CLRA, so the motion to strike is denied as to ¶ 164. Lastly, ¶ 166 requests exemplary damages pursuant to the CLRA. (Civ. Code § 1780 subd. (a)(1)(4).) The alleged demand letter does not include any mention of a claim for refusal to arbitrate and is, therefore, not proper notice which would have given Defendant the opportunity to rectify their alleged violation. However, in Morgan v. AT&T Wireless Services, supra, 177 Cal.App.4th the court held that the failure to comply with the requirement did not result in forfeiture of the CLRA damage claim; and allowed the plaintiff to resend the letter even after the complaint had been filed.

Defendant is to draft an order consistent with this ruling.


3.  SCV-253746 Liquid Investments v. Lusardi:

            This is on calendar for the Plaintiff’s motion to amend the complaint. The Plaintiff seeks to add allegations related to the subcontractors’ alleged duty to the Plaintiff as a third party beneficiary. The motion is opposed by Defendants Nehemiah Rebar, Wiseman, and Johnsen Construction.

The opposing defendants claim prejudice, in that each of them has filed motions for summary judgment/adjudication—which they argue the amendments may vitiate. Further, the opposing defendants contend that the Plaintiff has provided an inadequate explanation for the delay in amending the complaint. The opposing defendants further argue that the amendments seek to add a cause of action that is barred by the applicable statute of limitations. The opposing defendants characterize the amendment as adding a new cause of action, a characterization the Plaintiff contends is incorrect.

Under CCP section 473(a)(1), amendments are left to the sound discretion of the trial court.  Judicial policy favors amendment to allow resolution of all potential claims and disputes between parties, so such motions are examined liberally.  (Nestlé v. Santa Monica (1972) 6 Cal.3d 920, 939.)  As long as the motion is timely and will not prejudice a party, it is normally an abuse of discretion to refuse to allow amendment if the denial will deprive a party of a meritorious claim or defense.  (Morgan v. Sup.Ct. (1959) 172 Cal.App.2d 527, 530; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596.)

Here, the motion is procedurally sound and no party has demonstrated that the proposed amendment would cause unfair prejudice. The opposing defendants are not precluded from keeping their present motions for summary judgment/adjudication on calendar. Moreover, the inclusion of the additional factual allegations promotes the long standing policy that cases should be adjudicated on their merits. Further, the opposing defendants’ arguments regarding the timing of the amendments are not well-taken. As pointed out by the Plaintiff, discovery has just opened—providing the defendants ample opportunity to investigate the allegations. As to the defendants contention that the liability alleged in the amendments is barred by the applicable statute of limitations: amendments alleging a new theory of liability against the defendant relate back to the original complaint, so long as based on the same set facts previously alleged. (Amaral v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1199-1200.) Here, the allegations, even if construed as a “new cause of action,” arise out of the same facts as originally pled.

Accordingly, the motion to amend is granted. The Plaintiff shall file and serve the proposed first amended complaint within 15 days of this order. The Plaintiff is to draft an order consistent with this ruling.


4.  SCV-255005 Cupp v. Federal National:

            This is on calendar for the Defendant MTC Financial Inc. dba Trustee Corps (the Defendant) motion to strike the Plaintiff’s opposition to a Declaration of Non-Monetary Status pursuant to CC § 2924l. The Defendant contends that the Plaintiff’s opposition was untimely and, thus, should be stricken. The Plaintiff has not filed an opposition to the instant motion.

On February 18, 2015 Defendant MTC filed a Declaration of Non-Monetary Status (the Declaration). On April 17, 2015, the Plaintiff filed an opposition to the Declaration. CC § 2924l(c) provides: “The parties who have appeared in the action or proceeding shall have 15 days from the service of the declaration by the trustee in which to object to the nonmonetary judgment status of the trustee. Any objection shall set forth the factual basis on which the objection is based and shall be served on the trustee.” Further, CC § 2924l(d) provides: “In the event that no objection is served within the 15-day objection period, the trustee shall not be required to participate any further in the action or proceeding, shall not be subject to any monetary awards as and for damages, attorneys' fees or costs, shall be required to respond to any discovery requests as a nonparty, and shall be bound by any court order relating to the subject deed of trust that is the subject of the action or proceeding.”

Here, the Plaintiff’s objection was served and filed outside of the 15 day period to object and is, therefore, untimely. Accordingly, the objection is stricken. The Defendant shall draft an order consistent with this ruling.


5.  SCV-256887 Fowler v. Driversdoor, Inc.:

             This is on calendar for Defendant DriversDoor Inc.’s motion to strike portions of the complaint. In particular, DriversDoor seeks to strike the Plaintiff’s first cause of action for general negligence, and the Plaintiff’s request for punitive damages. DriversDoor contends that insofar as the First Cause of Action for negligence is premised on liability arising from allegations that it promoted alcohol consumption, it is barred by CC § 1714 and BP § 25602. Further, DriversDoor contends that the allegations in the complaint do not support the request for punitive damages.

The Plaintiff opposes, arguing that the instant motion is procedurally unsound, in that the motion seeks to strike the First Cause of Action based on the merits of the allegations. The Plaintiff also points out that the instant motion seeks to strike all of the language in the First Cause of Action, not just the language pertaining to liability premised on the furnishing of alcohol.  Further, the Plaintiff contends that the First Cause of Action includes allegations beyond the promotion and consumption of alcohol—including allegations that DriversDoor failed to provide an adequate number of personnel and failed to adequately direct traffic. The Plaintiff further argues that the allegations in the complaint support a request for punitive damages.

Here, the First Cause of Action for General Negligence adequately alleges facts to support liability against DriversDoor. The allegations in the instant cause of action allege facts based on factors other than the promotion and advertising of alcohol (e.g. “no measure to direct traffic…” and “DEFENDANTS were negligent in failing to provide adequate security and safety measures including but not limited to traffic control during the time of the event.”), and therefore adequately states a cause of action for negligence.

With respect to the request for punitive damages, in unintentional tort cases, such as the one at issue here, conclusory allegations that defendant acted “wilfully,” “maliciously,” etc., or with “conscious disregard,” are insufficient to support a claim for punitive damages. The Plaintiff must plead facts to support such conclusion. (See Brousseau v. Jarrett (1977) 73 Cal.App.3d 864.) However, unintentional conduct may come within the definition of malicious acts punishable by the assessment of punitive damages when a party intentionally performs an act from which that party knows, or should know, it is highly probable that harm will result. (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902 [negligent spraying of pesticide, and attempting to cover –up]; Ford Motor Co. v. Home Ins. Co. (1981) 116 Cal.App.3d 374.) Negligence, gross negligence, or even reckless conduct is not sufficient. (Bell v. Sharp Cabrillo Hospital (1989) 212 Cal.App.3d 1034; Flyer's Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149.)

Here, the Complaint fails to allege sufficient fats to support the imposition of punitive damages. The Plaintiff’s allegations regarding the promotion of alcohol at the event in question and the inadequate traffic control do not rise to the level that would support punitive damages. The allegations regarding this Defendant’s willfulness, malice, or conscious disregard are conclusory and cannot support the requested relief.

Accordingly, the motion to strike is granted only as to the requests for punitive damages, and denied as to the balance of the relief requested. The Defendant shall draft an order consistent with this ruling.

© 2015 Superior Court of Sonoma County