Aug 12, 2020
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TENTATIVE RULINGS                             
LAW & MOTION CALENDAR
Wednesday, August 12, 2020, 3:00 p.m.
Courtroom 19 – Hon. Gary Nadler via Zoom
3055 Cleveland Avenue, Santa Rosa
 
In accordance with the Addendum to First Amended Omnibus Order of the Presiding Judge issued May 27, 2020, only those persons with court hearings in criminal actions shall enter a Sonoma County Superior Court facility. Until further notice, all matters set for hearing in this courtroom shall be heard remotely through Zoom. No party or representative of a party may appear personally in Courtroom 19. CourtCall is not permitted for this calendar.
 
If the tentative ruling is accepted, no appearance is necessary via Zoom unless otherwise indicated.
 
TO JOIN ZOOM ONLINE:
 
D19 – Law & Motion 3 pm Wednesday
Meeting ID:  879-7723-0441
Password:  185652
https://us02web.zoom.us/j/87977230441?pwd=ZERtRVA1cHpNNFZkQjBlZHpMOForQT09
 
TO JOIN ZOOM BY PHONE:  
By Phone (same meeting ID and password as listed for each calendar):
+1 669 900 6833 US (San Jose)
 
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, August 11, 2020. Parties in motions for claims of exemption are exempt from this requirement.
 
PLEASE NOTE: The Court WILL provide a Court Reporter for this calendar. If there are any concerns, please contact the Court at the number provided above.
 
 
For tentative rulings for the Dept. 19 2:30 p.m. 5th L&M calendar on August 12, please see Dept. 12’s tentative rulings on the prior webpage.
 
 

 1.         MCV-249745, TD Bank USA N.A. v. Babbini

 
Counsel Adrieannette Ciccone’s motion to be relieved as counsel is GRANTED.
 
 
 

2.         SCV-256608, French v. Acordagoitia

 
Counsel Michael Rupprecht’s motion to be relieved as counsel is GRANTED.
 
 
 

3.         SCV-263984, Mello v. Estate of Patricia Jean Harris

 
This matter is on calendar for defendant’s motion for leave to file a first amended answer. The motion is GRANTED.
 
Plaintiffs’ request for the Court to take judicial notice is granted.
 
Plaintiffs have not made a showing of prejudice or surprise should the proposed amendment be permitted. Absent prejudice, courts are bound to apply a policy of great liberality in permitting amendments to the complaint “at any stage of the proceedings, up to and including trial.” (Atkinson v. Elk Corp. (2003) 109 Cal. App. 4th 739, 761; Morgan v. Sup.Ct. (1959) 172 Cal. App. 2d 527, 530.)
 
Additionally, the court generally does not consider the validity of the proposed amended pleading in deciding whether to grant leave to amend. Grounds for demurrer or motion to strike are premature. After leave to amend is granted, the opposing party will have the opportunity to attack the validity of the amended pleading. (See Kittredge Sports Co. v. Sup.Ct. (1989) 213 Cal. App. 3d 1045, 1048.)
 
Defendant’s counsel shall submit a written order to the Court consistent with this ruling and in compliance with California Rules of Court, Rule 3.1312.
 
 
 

4.        SCV-264975, David v. Harris

           
This matter is on calendar for the motion of defendants Ronald Harris and Marsha Harris to compel plaintiff Phillip David to respond, without objections, to Defendants’ Form Interrogatories, Set One; Special Interrogatories, Set One; and Requests for Production of Documents, Set One. Defendants have established that the discovery requests were served, the time for a response has passed, and that no responses have been received. (Crowley decl., ¶¶2-6, 8.) Accordingly, pursuant to CCP sections 2030.290 and 2031.300, the motion is GRANTED.
 
Plaintiff Phillip David shall serve full and complete verified responses, without objection, to the Defendants’ Form Interrogatories, Set One; Special Interrogatories, Set One; and Requests for Production of Documents, Set One, within thirty (30) days of the service of this order. Plaintiff shall further pay sanctions to Defendants in the amount of $1,022.50 within thirty (30) days of notice of entry of the order granting this motion.
 
Defendants’ counsel shall submit a written order to the Court consistent with this ruling and in compliance with California Rules of Court, Rule 3.1312.
 
 
 

5.        SCV-266296, Wright v. Lakeville River Ranch, LLC

 
Plaintiffs William Wright, John Wright, and Glenda Wilson (“Plaintiffs”) sued Defendants (“LRR”) to quiet title to property that Plaintiffs allege was purchased in November 1982 by Plaintiffs’ father, Glen Wright, from Peter R. Barrett. The property is commonly known as 5616 Lakeville Highway, in Petaluma. It is further alleged that taxes were paid by Mr. Wright; that he had his name listed as owner through the Sonoma County Tax Assessor; that considerable time and expense was invested in the property; and that the property has always been accessed via a private road on the Bordessa property, predecessor to LRR. The complaint further alleges that, inter alia, the road access was used as a matter of right; the septic system for the cabin was used as a matter of right; and that well water was obtained from the Bordessas for a nominal charge as a matter of right.
 
LRR cross-complained against Plaintiffs/Cross-Complainants for quiet title, declaratory relief, and injunctive relief.
 
The matter now before this Court is the motion of plaintiffs William Wright, John Wright, and Glenda Wilson for a preliminary injunction restraining defendant Lakeville River Ranch, LLC, and its agents, servants, employees and representatives, along with any and all persons acting in concert with them, from: (1) interfering with Plaintiffs’, together with their attorneys’, contractors’ and invitees’, access to the property commonly known as 5616 Lakeville Highway, Petaluma, CA (“the 5616 Cabin”) by means of the approximately 12 foot wide gravel road that runs westerly from the public Lakeville Hwy and crosses Defendant’s property to reach the 5616 Cabin; (2) Causing damage to the 5616 Cabin and other structures and/or to any of Plaintiffs’ personal property; (3) Interfering with the water and sewage lines to the 5616 Cabin; and (4) Interfering with, causing damage to, or attempting to tow vehicles parked on or adjacent to the 5616 Cabin, by plaintiffs, their attorneys, contractors and invitees.
 
Additionally, Plaintiffs seek an Order to require Defendant to uncap and repair the water and sewage lines to the 5616 Cabin so that fresh water and sewage service is restored during the pendency of this lawsuit.
 
The Court grants defendant’s request for judicial notice dated June 22, 2020.
 
Defendant has filed twenty objections to Plaintiffs’ evidence. Objection Nos. 1, 4, and 11 are sustained for lack of foundation. Objection No. 2 is sustained for failure to authenticate. Objection Nos. 3, and 5-9 are overruled. The declarant is merely stating his or her understanding of the situation. Objection Nos. 10 and 12 are overruled. It is clear from Mr. Wright’s declarations that he was familiar with the property and what repairs were done there. Objection Nos. 13-20 are overruled. Mr. Wright has laid sufficient foundation to identify his parents, the area surrounding the 5616 Cabin, and the damage that he discovered was done to it.
 
Plaintiff’s objections to LRR’s evidence in opposition are addressed as follows:
 
1)    Marilyn Bordessa’s June 21, 2020 declaration:
 
The Court sustains objections 1-4, 8-9, 11-19, and 21-24.
The Court overrules 5-7, 10, and 20.
 
2)    Supplemental Declaration of Marilyn Bordessa:
 
The Court sustains objections 25-26, 28-29 and 31.
The Court overrules objections 27, and 30.
 
Plaintiffs filed a Second Supplemental Declaration of William Wright In Support of Motion for Preliminary Injunction on August 6, 2020. The declaration addresses evidentiary foundation for photographs attached as an exhibit to his June 19, 2020 declaration, and document attached as Exhibit M to his July 8, 2020 declaration. The Court is unaware of any objection to this declaration.
 
Trial courts should evaluate two interrelated factors when deciding whether or not to issue a preliminary injunction: the first is the likelihood that the plaintiff will prevail on the merits at trial, and the second is the interim harm that the plaintiff is likely to sustain if the injunction were denied compared to the harm that the defendant is likely to suffer if the preliminary injunction were issued. (Teachers Ins. & Annuity Assn. v. Furlotti (1999) 70 Cal.App.4th 1487, 1493 [citing cases.])
 
The decision to grant a preliminary injunction rests in the sound discretion of the trial court. (Teachers, supra, at 1493 [citing cases.]) However, a preliminary mandatory injunction is rarely granted; it is not permitted except in extreme cases where the right thereto is clearly established. (Ibid.)
 
Plaintiffs put forth several theories to support their cause of action to quiet title to the 5616 Cabin, the land traditionally used along with the cabin, access rights to the cabin, and water and sewer services. The first is adverse possession. Plaintiffs have not shown a likelihood of success on the merits because Plaintiffs have not established that they paid taxes on the real property. William Wright only testifies to the payment of taxes on the improvements: “Since my siblings and I have owned the Wright Property we have been assessed taxes for the cabin, assessed as unsecured property—by the Sonoma County Assessor’s Office, and we have paid all taxes owed. In 2019, after a court determined in the Public Trust Boundary Action that the cabin was not located on tidal lands owned by the State of California, I asked the Assessor’s Office to reassess the Wright Property as real property. A representative of the Assessor’s Office informed me that that would require creation of a surveyed assessor’s parcel number, which could not be done before we prevailed through a legal process to demonstrate our ownership of the land under the cabin.”  (William Wright decl., ¶7.)
 
The burden is on plaintiff (moving party) to show all elements necessary to support issuance of a preliminary injunction. (See O'Connell v. Sup.Ct. (Valenzuela) (2006) 141 Cal. App. 4th 1452, 1481.) In support of their position that they will establish a prescriptive easement, Plaintiffs conclude that they “have a likelihood of success in showing the elements needed for a prescriptive easement to enable continued use of Wright Property, the private road through the Lakeville Highway Defendant’s property, and continued use of the well water and septic system extending onto Defendant’s property. (Complaint ¶¶ 16-17; Wright Decl. ¶¶ 9-10.) The term of Plaintiffs’ continuous adverse use has been well in excess of the five years required for a prescriptive easement.” (Plaintiffs’ memorandum of points and authorities [“MPA”], 10:15-20.) As Plaintiffs only address one of the several elements of prescriptive easement, they have not met their burden on this motion.
 
Plaintiffs likewise fail to address the evidence as it relates to an irrevocable license. Plaintiffs merely state: “the evidence will show that Plaintiffs and their parents have invested countless hours and spent substantial amounts of money over the past four decades in the Wright Property in reliance on their ability to be able to continue to use the road and have access to fresh water and a septic system for their property. (Complaint ¶ 14; Wright Decl. ¶ 8.)” (Plaintiffs’ MPA, 11:5-8.)
 
Plaintiffs’ showing of the possibility of prevailing on the merits of an equitable easement is equally lacking. (See Plaintiffs’ MPA, 11:9-11.)
 
Even if the Court were to consider the evidence presented, it is insufficient to support finding that Plaintiffs’ have a probability of prevailing on the merits. As for access to the cabin via the road over Defendant’s land, and access to water and septic services, the evidence is clear that the Plaintiffs were granted permission to use these for a fee. (See M. Bordessa decl., ¶¶8, 11, 12, Exhibits B, D, E; Decl. of William Wright, ¶10; Supp. Decl of William Wright, ¶5.) Letters back and forth between plaintiff William Wright and members of Defendant, or their attorney, have the parties negotiating the price for use of the road, septic, and water. (Ibid.) Thus, there is no hostile use and their basis for a prescriptive easement fails. (See CACI 4901 [prescriptive easement requires lack of permission.]) Nor have Plaintiffs established that they have made sufficient expenditures to the 5616 Cabin to support an irrevocable license. (See Shoen v. Zacarias (2019) 33 Cal.App.5th 1112, 1119 [a court may declare the license to be irrevocable “for so long a time as the nature of it calls for” if the licensee “ ‘has expended money, or its equivalent in labor’ ” while reasonably relying on the existence of the license.]) In short, Plaintiffs have failed to establish their payment for a service can, or should be, transformed into a right for continued future services.
 
Additionally, it is not clear that the balance of the hardship weighs in Plaintiffs’ favor. First, the evidence provided shows that the 5616 Cabin is rarely used. (Decl. of Marilyn Bordessa, ¶26; Decl. of John Wright, ¶7, 9.) While Plaintiff William Wright states that he believes there are several maintenance and repair projects that need to be attended to, he does not state what those are and why they are urgent. (Supp. Decl. of William Wright, ¶7.) Moreover, to obtain a mandatory injunction to require Defendant to uncap and reestablish water and septic services, Plaintiffs must “clearly establish” the right to those services which, as stated above, they have not done. (See Teachers Ins., supra, 70 Cal.App.4th at pg. 1493.) The court may not issue an injunction, regardless of the amount of interim harm, "unless there is some possibility" that the plaintiffs will ultimately prevail on the merits. (Jamison v. Department of Transp. (2016) 4 Cal.App.5th 356,362.) Accordingly, the motion is DENIED in its entirety.
 
Defendant’s counsel shall submit a written order to the court consistent with this ruling and in compliance with California Rules of Court, Rule 3.1312.
 
 
 
**This is the end of these tentative rulings.**

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