Dec 03, 2016



WEDNESDAY, NOVEMBER 30, 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, you must contact the Judicial Assistant by telephone at (707) 521-6730 by 4:00 p.m. on TUESDAY, NOVEMBER 29, 2016.  Any party requesting an appearance must notify all other parties of their intent to appear.


1.      MCV-222267 Persolve v. Burnett:

Appearances required.  Defendant Burnett is directed to bring copies for the court of all documents that were provided to the Los Angeles County Sheriff’s Department.


2.      SCV-251486 Weiler v. Mattei: 

After consultation with Presiding Judge Ballinger and Judge Wick, the motion to reassign the case to Judge Wick is denied. Since January 1, 2016, Judge Wick has been assigned to the Criminal Division of the Sonoma County Superior Court and that assignment will continue until at least December 31, 2017.  Neither the Presiding Judge nor Judge Wick is willing to disrupt the criminal calendars to accommodate the moving party’s request for reassignment of the case. The Court notes the first case was tried to a verdict on December 16, 2013, 1,208 days before the second trial is scheduled to begin on April 7, 2017.


3.      SCV-256266 Beckmann v. JP Morgan Chase:

            Appearances required. Counsel should be prepared to address the adequacy of discovery responses and the request for sanctions by the moving party.


4.      SCV-257563 Stachura v. Gans:

When a propounding party is dissatisfied with responses to interrogatories, that party may move to compel further responses.  CCP section 2030.300.  The moving party must make adequate attempts to meet and confer.  Ibid.  Generally, once a timely, proper motion to compel further responses has been made, the responding party has the burden to justify objections or incomplete answers.  Coy v. Sup.Ct. (1962) 58 Cal.2d 210, 220-221.

Whether there is an alternative source for the information is relevant though normally not dispositive.  Associated Brewers Distrib. Co. v. Sup.Ct. (1967) 65 Cal.2d 583, 588.  However, the presence of an alternative source may be dispositive where the right to privacy protects the information.  Allen v. Sup.Ct. (1984) 151 Cal.App.3d 447, 449. 

Generally, parties may obtain from others information about witnesses and investigations as long as the information does not reveal attorney work-product.  CCP §§2017.010, 2018.030.  CCP §2017.010 states that “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action...if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.”  It adds that “[d]iscovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, tangible thing, or land or other property.” (Emphasis added).

            It appears to the court that Plaintiff Ms. Stachura provided full and complete, verified amended responses to each and every one of defendant’s discovery requests on November 8, 2016. (See Young Exhibits, “C”, “D”, “E”, and “F’.) Because these further responses have already been served, Defendants’ motion to compel further responses is moot.

            Contrary to Defendants’ assertions that this court must award monetary sanctions, CCP sec. 2031.310(h) provides that the court has discretion not to award sanctions if it finds that “the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” Here, Plaintiff’s counsel engaged in extensive meet and confer efforts with defense counsel, including both by letter and telephonically as required by Local Rule 5.4.

Defendants’ motion to compel further responses is denied; sanctions are also denied.

            Plaintiff shall draft an order consistent with the court’s ruling.


5.      SCV-258270 Harmony Occidental v. Jenkins:

Defendants Ken Jenkins (“Jenkins”) and Brenda Sanders (“Sanders”), collectively (“Defendants”) demurrer to the first and second causes of action (breach of contract); third cause of action (unjust enrichment); and fourth and fifth causes of action (common counts), asserted by plaintiffs Harmony Occidental, LLC (“Harmony”) and William Botieff (“Botieff”), collectively (“Plaintiffs”) in their First Amended Complaint (“FAC”).

As an initial matter, the Court notes that Defendants have failed to comply with the requirements of Code of Civil Procedure section 430.41, which states in pertinent part that “[b]efore filing a demurrer…the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.”  (Code Civ. Proc. §430.41.)  Even “[i]f an amended complaint…is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading.”  (Ibid.)  “As part of the meet and confer process, the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies” and “[t]he party who filed the complaint…shall provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint…could be amended to cure any legal insufficiency.”  (Code Civ. Proc. §430.41(a)(1).)

“The demurring party shall file and serve with the demurrer a declaration stating either of the following: [t]he means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer” or “[t]hat the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.”  (Code Civ. Proc. §430.41(a)(3)(A)-(B).)

Defendants’ demurrer was filed after January 1, 2016, and therefore, Defendants are subject to the requirements of section 430.41.  As pointed out in Plaintiffs’ opposition, Defendants failed to comply with the Code because their failed to meet and confer with Plaintiffs prior to filing the demurrer and failed to file a “meet and confer” declaration.  The Court reminds both parties and their attorneys that any further noncompliance with the Code will result in an order requiring counsel to comply.  However, notwithstanding Defendants’ failure to comply with the Code, the Court will reach the substantive merits of Defendants’ demurrer.


1.      Demurrer to the First and Second Causes of Action for Breach of Contract

Plaintiffs’ first and second causes of action are Botieff’s claim for breach of contract and Harmony’s claim for breach of contract, respectively.  Defendants demurrer to these causes of action pursuant to Code of Civil Procedure section 431.10(f) and based on the argument that the agreement underlying Code of Civil Procedure section 430.10(f) provides that a party against whom a complaint is filed may demurrer on the grounds that “[t]he pleading is uncertain.”  (Code Civ. Proc. §431.10(f).)  “‘[U]ncertain’ includes ambiguous and unintelligible.”  (Ibid.)  However, demurrers based on “uncertainty” are disfavored and will be strictly construed, even when the pleading is uncertain in some respects, because ambiguities can be clarified under modern discovery practices.  (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)  In fact, demurrer for uncertainty is only properly sustained where the complaint is so confusing that defendant’s ability to understand the complaint is impaired.  (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

In this case, when the FAC is liberally construed and read as a whole, the Court finds that it is not so uncertain or confusing as to impair Defendants’ ability to understand the claims asserted against them.  To the contrary, the FAC sufficiently alleges the necessary elements for a breach of contract cause of action against both Defendants, including “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.”  (Oasis W. Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821, citing, Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 830.)

Furthermore, where a complaint is based on a written contract, a demurrer “admits not only the contents of the instrument but also any pleaded meaning to which the instrument is reasonably susceptible.”  (Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal. App. 4th 221, 229, citing Aragon–Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 239.)  Thus, “[w]here an ambiguous contract is the basis of an action, it is proper, if not essential, for a plaintiff to allege its own construction of the agreement.”  (Ibid.)  “So long as the pleading does not place a clearly erroneous construction upon the provisions of the contract, in passing upon the sufficiency of the complaint, [the Court] must accept as correct plaintiff’s allegations as to the meaning of the agreement.”  (Ibid.)  “While [Plaintiffs’] interpretation ... ultimately may prove invalid, at the pleading stage, it is sufficient that the agreement is reasonably susceptible of this meaning.” (Ibid, citing Aragon–Haas, supra, 231 Cal.App.3d at 239.)

While the Court agrees that several aspects of contract, as attached to the FAC, are potentially ambiguous and/or uncertain, the contract is “reasonably susceptible” to Plaintiffs’ interpretation as alleged in the FAC.  Thus, for purposes of this demurrer, the Court accepts as correct Plaintiffs’ allegations.

Accordingly, Defendants’ Demurrers to the First and Second Causes of Action in the FAC are OVERRULED.


2.      Demurrer to the Third Cause of Action for Unjust Enrichment

“The elements for a claim of unjust enrichment are receipt of a benefit and unjust retention of the benefit at the expense of another.”  (Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1132.)  “The theory of unjust enrichment requires one who acquires a benefit which may not justly be retained, to return either the thing or its equivalent to the aggrieved party so as not to be unjustly enriched.”  (Ibid.)

In their demurrer, Defendants argue that “Plaintiffs fail to state facts sufficient to constitute unjust enrichment…[s]ince the terms of the contract were uncertain, and there was no agreement as to the details [of] the house to be built, there was no breach of contract; therefore, no claim for unjust enrichment.”  However, Plaintiffs’ cause of action for unjust enrichment is not contingent on their breach of contract claim and the issue of whether the contract is valid and enforceable is irrelevant to the allegations of unjust enrichment.  Although as a general matter causes of action for unjust enrichment and breach of contract are exclusive theories of recovery, it does not follow from the existence of a contract between the parties that all disputes arising out of that agreement must be contractual, rather than equitable or quasi-contractual in nature.  (See, F.D.I.C. v. Dintino (2008) 167 Cal.App.4th 333, 346–347.)  Indeed, the law is well settled that “an individual may be required to make restitution if he is unjustly enriched at the expense of another.”  (Rest., Restitution, § 1, p. 12; see also, Ghirardo v. Antonioli (1996) 14 Cal.4th 39, 51.)  A person is “enriched” if he receives a benefit at another’s expense. (Id., p. 12.) The term ‘benefit’ ‘denotes any form of advantage.’ (Id., p. 12.)   As such, “a cause of action for unjust enrichment is not based on, and does not otherwise arise out of, a written contract.  As such, “a cause of action for unjust enrichment is not based on, and does not otherwise arise out of, a written contract.” 

(1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, § 1013, p. 1102.)

Here, Botieff asserts a claim for unjust enrichment, alleging that “Botieff furnished labor, services, equipment, and materials to defendants” and Defendants “accepted the benefits of that which Botieff had furnished without paying therefor in accordance with the Contract or otherwise.”  (FAC at ¶¶16-17.)  “[D]efendants have been unjustly enriched and therefore[,] it would be inequitable for defendants to be allowed to retain the benefits of the above-described services without being ordered to pay the reasonable value thereof,” which Botieff estimates to be “in excess of $84,700…”  (Id. at ¶19.)  When these allegations are accepted as true, the required in a demurrer, Botieff has sufficiently alleged the necessary elements to state a claim for unjust enrichment.

Accordingly, Defendants’ Demurrer to the Third Cause of Action in the FAC is OVERRULED.


3.      Fourth and Fifth Causes of Action for Common Counts

A common count for money paid, laid out and expended, “lies when the act of payment was the result of an express or implied contract or gives rise to a quasi contract.”  (Division of Labor Law Enforcement v. Barnes (1962) 205 Cal.App.2d 337, 347.)  “The complainant must allege that the money was expended for the use and benefit of the defendant, at his instance and request, and such facts as will show an express or implied contract or a quasi contract on the part of the defendant to pay the amount so expended.”  (Ibid.)  “A common count is not a specific cause of action, however; rather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness…When a common count is used as an alternative way of seeking the same recovery demanded in a specific cause of action and is based on the same facts .... [the] common count must stand or fall with [the specific] cause of action.”  (McBride v. Boughton (2004) 123 Cal.App.4th 379, 394–395.) 

In their demurrer, Defendants argue that Plaintiffs’ common count claims “depend on the viability” of the breach of contract claim and because the contract claim is “fatally uncertain,” the common counts cannot survive.  (Demurrer at 8:22-9:20.)  While Defendants are that the common counts are dependent on the breach of contract claims, the Court’s ruling above renders Defendants’ argument moot.

Accordingly, Defendants’ demurrer to the fourth and fifth causes of action in the FAC is OVERRULED. 

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


6.      SCV-259071 Wild Oak v. Simons:

Disclosure under Canon 3E(2) of the California Code of Judicial Ethics: Canon 3E(2) requires disclosure on the record of “information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification even if the judge believes there is no actual basis for disqualification.” In this case, the Court is not disqualified. Judge Hardcastle’s wife is a Certified Public Accountant. Defendant Lawrence Simons is a partner is three partnerships that are clients of the judge’s wife. These clients comprise a very small portion of the wife’s practice.

Defendant’s demurrer to Plaintiff’s complaint, and the causes of action for breach of contract and injunctive relief contained therein is overruled.

            Plaintiff shall draft an order consistent with the court’s ruling.



7.      SCV-259107 Chadwick v. Hamilton:

The general demurrers to the first, second, third and fifth causes of action are sustained with leave to amend. The demurrers based on uncertainty are also sustained with leave to amend.

Defendant’s special demurrer to cause of action two is sustained with leave to amend. Defendant Hamilton to prepare an order consistent with the Court’s ruling within five court days. Plaintiffs to file a First Amended Complaint within 20 days of notice of the Court’s ruling.

In this case the Court is particularly concerned with the defense of the Statutes of Limitations raised by Defendant Hamilton and the facts necessary to overcome the defense. (See Defendant’s “Reply to Plaintiffs’ Opposition to Demurrer to Complaint” pages 4-7) Plaintiffs must plead with particularity not only as to the fraud allegations but as to the other causes of action as well. Plaintiffs must plead facts which explain how the Defendants’ conduct caused the delay in discovering the facts giving rise to the claim of financial elder abuse. Plaintiffs must also allege facts which would indicate that Defendant’s actions prevented the Plaintiffs, with the exercise of due diligence, would not have discovered the acts which give rise to the allegations in the second and third causes of action. The Fifth Cause of Action, the remedy of a constructive trust, cannot survive by itself and the comments above apply to it as well. Without the appropriate factual allegations the complaint is subject to demurrer without leave to amend. Here, the court will allow Plaintiffs the opportunity to establish the facts necessary to overcome a demurrer.

Defendant Hamilton to prepare an order consistent with the Court’s ruling within five court days.  Plaintiffs to file a First Amended Complaint within 20 days of notice of the Court’s ruling.


8.      SCV-259300 Ponce v. CIT Communications: 

            The Motion to Withdraw as Counsel for the Plaintiff is granted.  Counsel is to prepare a proposed order for the court’s signature that conforms with this tentative ruling.


© 2016 Superior Court of Sonoma County