Feb 23, 2018

 

 

TENTATIVE RULINGS

LAW & MOTION CALENDAR

Friday, February 23, 2018, 1:30 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, Thursday, February 22, 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.         SCV-254955, Tostanowski v. The Post Improvement Club

 

            CONTINUED to Wed., April 4, 2018, 3:00 p.m., at the request of counsel for moving party.

 

 

2.         SCV-257455, Lynmar Winery, LLC v. Wright Contracting, Inc.

 

            This matter is on calendar two motions.  First, Defendant Gould Evans, Inc.’s (“Gould”) moves for judgment on the pleadings pursuant to Code of Civil Procedure section 438 and on the grounds that the operative First Amended Complaint (“FAC”) does not allege sufficient facts to state a valid cause of action against Gould and because the FAC is uncertain, ambiguous and unintelligible.  Based on these deficiencies, Gould requests that judgment be entered in its favor or that Plaintiff be given leave to file a Second Amended Complaint or correct the deficiencies.  Plaintiff Lynmar Winery, LLC (“Plaintiff”) filed a “response” to the motion which does not dispute the substantive arguments made in the motion but simply states that Plaintiff has prepared a proposed Second Amended Complaint which addresses the deficiencies raised in the motion and requests that the proposed Second Amended Complaint be filed “on or around February 23, 2018.”  Gould has not filed a reply to the motion.  

 

            Second, Defendant Douglas Thornley (“Thornley”) filed a demurrer to the FAC pursuant to Code of Civil Procedure section 430.10 and on the grounds that the FAC does not state facts sufficient to constitute a cause of action, because the FAC is uncertain, and because it cannot be ascertained from the FAC whether the alleged contract is written, oral, or implied by conduct.  (Code Civ. Proc. § 430.10(e)-(g).)  Plaintiff filed a response to the demurrer which points out that on the same day the demurrer was filed, Plaintiff filed a request for dismissal, without prejudice, as to all causes of action against Thornley that were raised and disputed in the demurrer.  Therefore, Plaintiff contends that Thornley’s demurrer is now moot.  Thornley has not filed a reply to the demurrer and does not dispute that the demurrer is moot.

 

            Gould’s Request for Judicial Notice of Exhibits 1-3 in Support of its motion for judgment on the pleadings is GRANTED.  Gould’s motion for judgment on the pleadings as to Plaintiff’s First Amended Complaint is also GRANTED, with leave to amend.  Plaintiff shall file and serve a Second Amended Complaint no later than February 27, 2018.  Thornley’s demurrer to the FAC is MOOT in light of the fact that the request for dismissal has been filed.     

 

            A motion for judgment on the pleadings is analogous to a general demurrer.  (Code Civ. Proc. § 438; see also, Smiley v. Citibank (1995) 11 Cal.4th 138, 145-146; Southern Calif. Edison Co. v. City of Victorville (2013) 217 Cal.App.4th 218, 227.)  A court may grant a defendant’s motion for judgment on the pleadings where the complaint fails to state facts sufficient to constitute a cause of action against it.  (Code Civ. Proc., § 438(c)(B)(ii).)  “The grounds for the motion must appear on the face of the challenged pleading or from matters that may be judicially noticed” and in considering a motion, “[t]he trial court must accept as true all material facts properly pleaded, but does not consider conclusions of law or fact, opinions, speculation, or allegations contrary to law or facts that are judicially noticed.”  (Stevenson Real Estate Services, Inc. v. CB Richard Ellis Real Estate Services, Inc. (2006) 138 Cal.App.4th 1215, 1219-1220.)  Also similar to a demurrer, a motion for judgment on the pleadings can be granted with or without leave to amend.  (Code Civ. Proc., § 438(h)(1).)  However, the court’s discretion whether to grant leave to amend must be exercised liberally in favor of amendment if there is a reasonable possibility that the defect can be cured by amendment.  (See, Vaccaro v. Kaiman  (1998) 63 Cal.App.4th 761, 768; accord, Camacho v. Automobile Club of Southern California (2006) 142 Cal.App.4th 1394, 1398, fn. 4.)

 

            Here, because Plaintiff has not addressed the merits of the motion for judgment on the pleadings and seemingly concedes that its First Amended Complaint is defective, and because Gould essentially concedes that there is a reasonable possibility that the defects can be cured by a further amendment, the motion is granted, with leave to amend, no later than February 27, 2018.  With respect to the demurrer, based on the fact that Plaintiff has filed a request for dismissal as to all relevant causes of action asserted against Thornley, the demurrer is moot. 

 

            Gould’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.

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