Jun 28, 2016

LAW & MOTION TENTATIVE RULINGS 

WEDNESDAY, JUNE 22, 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) 521-6730 by 4:00 p.m. on TUESDAY, JUNE 21, 2016.  Any party requesting an appearance must notify all other parties of their intent to appear.    

 

 

1.      MCV-235178 Citibank v. Paasche:

            Plaintiff’s motion for judgment on the pleadings is granted and judgment is awarded to plaintiff in the amount of $24,919.44.

            The complaint properly sets out all necessary allegations for common count causes of action. Defendant admits all allegations of the complaint and admits owing this debt. Total failure to deny material allegations necessarily results in an admission. 5 Witkin, Cal. Procedure (5th ed., 2008) Pleading, §1053, p. 493. Since Defendant admits the allegations and that defendant owes this debt and has no valid affirmative defenses, judgment on the pleadings must be granted.

Plaintiff’s counsel to prepare the order and judgment.

 

2.      SCV-257976 Edmunds v. Sonoma County Office of Education:

The demurrer is sustained without leave to amend on the grounds that Plaintiff’s claims are barred by the doctrine of Res Judicata and Collateral Estoppel. Additionally, Plaintiff has not complied with the Claim Presentation Requirements of the Govt. Code sec. 905.

            Defendant’s motion to strike the Complaint in its entirety is granted, without leave to amend. Defendant to prepare orders consistent with the Court’s ruling.

 

3.      SCV-253746 Liquid Investments v. Lusardi:    

            QBE Specialty Insurance Company, as a partially subrogated insurer, has a right to intervene in the present action because it has an interest in the transaction which is the subject of this matter. Accordingly, the motion for leave to file a complaint in intervention is granted.

 

4.      SCV-256582 City of Santa Rosa v. Suarez: 

            Appearances required.

 

5.      SCV-257677 State of CA v. Barbieri:

            Dropped at the request of the parties. (After excellent work by the Discovery Facilitator)

 

6.      SCV-258094 Duncan v. Tabor:   

The court denies plaintiff’s Motion to Compel Arbitration and to Stay Proceedings, on the grounds that Plaintiff failed to properly serve any of the moving papers for this Motion or give proper notice of the ex parte application to shorten time to hear this motion.  Further, Plaintiff failed to properly serve this Court’s ex parte order shortening time to hear the motion. As a result, the deadline to oppose this Motion was not properly calendared to the substantial prejudice of Defendants. Defense counsel argues, in discussing the actions of Plaintiff’s counsel, that “This court should not tolerate his procedural shenanigans.”  This court agrees.

            Additionally, Plaintiff Duncan had entered into a written Settlement Agreement and Release with Nathan Tabor and Spring manor Apartments LLC on September 6, 2012 that waived and released any obligations of the contract at issue. (Hammond Decl., Exs. J and K.)

            Further, the Disbursement Agreement dated September 7, 2012 supports the fact that the Engagement Agreement terminated prior to the alleged breach. (Tabor Decl., ¶8, Ex. A.) It references the Settlement Agreement and indicates that the disbursement is for “the satisfaction of total contract negotiations between [Nathan Tabor, Spring Manor Apartments LLC, Brad Duncan, DW Commercial, Howard Sowell and Legacy Funding].” (Tabor Decl., ¶8, Ex. A.) The Disbursement Agreement signed by the parties to this action shows that the disbursement of settlement funds was intended to fully satisfy any and all obligations between the parties with respect to the Engagement Agreement (i.e., it shows that the parties intended to, and in fact did, terminate the Engagement Agreement. The Special Motion to Strike set for July 13, 2016 remains as previously set.

Defense counsel is to prepare orders consistent with the court’s ruling.

 

7.      SCV-258881 McCollom v. Buckley:   

            The Court grants Plaintiff’s application for Preliminary Injunction. Plaintiff has shown that she is likely to prevail on the merits of her complaint because the Heloc Deed of Trust was reconveyed, and, plaintiff is entitled to equitable subrogation in the amount of $330,009.97.

            Plaintiff shall post an undertaking in the amount of $5,000.00.

            Plaintiff is to prepare an order consistent with the Court’s ruling.

© 2016 Superior Court of Sonoma County