Feb 10, 2016

LAW & MOTION TENTATIVE RULINGS

WEDNESDAY, FEBRUARY 10, 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 Judge Hardcastle’s Judicial Assistant by telephone at (707) 521-6730 by 4:00 p.m. on TUESDAY, FEBRUARY 9, 2016.  Any party requesting an appearance must notify all other parties of their intent to appear.

 

1.      MCV-235140 Haaland v. Acevedo:
            
Defendant's Motion for Summary Judgment is denied.
            What Defendant argues is mere innuendo about motivation to support the idea that Plaintiff’s non-– disclosure to the bankruptcy court was intentional. In fact, the declaration of Brian Barta makes it clear that it was completely unintentional, and that if the Bankruptcy Court had known about it, it would not have mattered because there is an exemption covering claims up to $25, 575. 00. (See Plaintiff's undisputed material facts, two – six.) Moreover, when informed of the inadvertent omission of the personal injury claim, plaintiff directed her bankruptcy attorney to contact the United States Bankruptcy Court trustee to determine the proper course of action. (Plaintiff's additional fact, number three) The trustee's motion to reopen the bankruptcy estate was granted on December 31, 2015. (Id at 4).
          Defendant's request for judicial notice is granted pursuant to evidence code section 452 (D).

2.  SCV-256672 Fire Guard v. Ford Motor:
          
Motion for Summary Judgment dropped at the request of the
moving party.

3.  SCV-257579 Bucher Vaslin v. Simoncini:

Plaintiff has pled sufficient facts to support its claims for Breach of Contract and Common Counts. Furthermore the complaint is NOT uncertain; it clearly apprises the defendant of the claims alleged against it. Defendant’s Demurrer is overruled.

            Plaintiff’s counsel shall draft an order consistent with this ruling. Defendant shall file an Answer within ten (10) days from the date of this order.

 

4.  SCV-257608 Freitas v. Select Portfolio Servicing:

Demurrer dropped at the request of the moving party.

 

5.  SCV-251486 Weiler v. Mattei:

            This case is on calendar for two motions: (1) Defendants Matteis’ motion to disqualify Plaintiffs’ counsel; and (2) Plaintiffs’ objections to Defendant Matteis’ compliance with order re: bond.

            Disqualification of Counsel 

            On October 2, 2015, Ms. Kari Brown terminated her employment with the Law Offices of Ian Gordon (Gordon), and on October 13, 2015, Ms. Kari Brown began her employment with Spaulding, McCullough & Tansil (SMT). The Plaintiffs are represented by SMT and the Defendants are represented by Gordon.

            Based on Ms. Brown employment with SMT, Gordon has moved to disqualify SMT from further representation of the Plaintiffs. Gordon avers that on September 4, 2014 Ms. Brown was present at a meeting where the instant case was discussed with the insurer—discussions that involved confidential client communications. Gordon does not contend that Ms. Brown ever directly worked on the instant case.

            In opposition, SMT contends that Ms. Brown has been effectively shielded from its work in the instant case. Further, SMT argues that this case has already been tried to jury verdict, and the subsequent appeals have been fully briefed—the only task left is to present oral argument.

Whether disqualification of the firm switching attorney's current firm is warranted based on the former firm's prior client representation is determined pursuant to a “modified” version of the substantial relationship test. In this scenario, the critical issue is whether confidential information was “reasonably likely” to have been imparted to the attorney while at the former firm. (Adams v. Aerojet-General Corp. (2001) 86 CA4th 1324, 1340.) Factors considered include:(1) the relationship (if any) between the attorney and the former client's representation;(2) any time spent by the attorney working on behalf of the former client; (3) the attorney's possible exposure to the formulation of policy or strategy in matters relating to the current dispute; (4) whether the attorney worked out of the same office that handled the former litigation; and/or (5) whether administrative or management duties may have placed the attorney in a position where he or she would have been exposed to matters relevant to the current dispute. (Adams v. Aerojet-General Corp., supra, 86 CA4th at 1340; Ochoa v. Fordel, Inc. (2007) 146 CA4th 898, 908, 53 CR3d 277, 285.)

            Here, it is undisputed that Ms. Brown had access to confidential information of the client. It is undisputed that Ms. Brown was in the September 4, 2014 meeting where case statuses where discussed with the insurer, including the instant case. Ms. Brown claims no memory of the meeting, or the information related to the insurer—but her memory is irrelevant, she was exposed to confidential information. Ms. Brown also discloses that she accessed the Weiler files at Gordon seeking to see what fire experts were used by the parties.

            Once the moving party in a motion for disqualification has established that an employee is tainted with confidential information, a rebuttable presumption arises that the confidential information was with the opposing law firm. The burden then shifts to the challenged law firm to establish “that the practical effect of formal screening has been achieved. (See Kirk v. First American Title Ins. Co. (2010) 183 Cal.App.4th 776, 809.)  “The specific elements of an effective screen will vary from case to case, although two elements are necessary: First, the screen must be timely imposed; a firm must impose screening measures when the conflict first arises.[S]creening should be implemented before undertaking the challenged representation or hiring the tainted individual.” (Kirk, supra, citing In re Complex Asbestos Litigation, supra, 232 Cal.App.3d at 594.) It is not sufficient to wait until the trial court imposes screening measures as part of its order on the disqualification motion. (Klein v. Superior Court, supra, 198 Cal.App.3d at pp. 906, 913–914.)  Second, it is not sufficient to simply produce declarations stating that confidential information was not conveyed or that the disqualified attorney did not work on the case; an effective wall involves the imposition of preventive measures to guarantee that information will not be conveyed.  (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1142, 1151–1152 & fn.5.)  “The typical elements of an ethical wall are: [1] physical, geographic, and departmental separation of [conflicted employees]; [2] prohibitions against and sanctions for discussing confidential matters; [3] established rules and procedures preventing access to confidential information and files ….”  (Henriksen, supra, 11 Cal.App.4th at p. 116, fn. 6.)

            However, the leading case on ethical screening provides that vicarious disqualification is mandatory in cases of a tainted attorney possessing actual confidential information from a representation, who switches sides in the same case. (Kirk, supra, at 800.) Here, Ms. Brown was privy to confidential information involving the instant lawsuit. (See Meza v. H. Muehlstein & Co. (2009) 176 Cal.App.4th 969, 978-79 [98 Cal.Rptr.3d 422, 429-30] citing Henriksen v. Great American Savings & Loan (1992) 11 Cal.App.4th 109, 114–115.) It is really of no consequence that Ms. Brown was reviewing her notes and not paying attention during a meeting in which the case was discussed between counsel and the insurer. She was directly exposed to confidential communications and an irreparable conflict was created. The construction of the ethical walls are simply too little, too late.

            Accordingly, the motion is granted.

            As a result of the disqualification of SMT, the court will drop the objections to the bond without prejudice.

 

6.  SCV-255299 Rapp v. A Plus Towing:

Application for a stay pending Federal Appeal is denied.

The interests of justice and the orderly administration of justice weigh in favor of denying plaintiff's motion for stay. The defendant's motion for dismissal and motion for summary judgment should be heard as scheduled, which could result in a dismissal in favor of the defendants. If the motion to dismiss is denied, plaintiff will continue to have her remedies to seek to revive her state lawsuit in the event she can reverse the Federal Court ruling in the TITAN case.

Additionally, granting a stay in the State case would mean that the HERMOSILLO Defendants would have to wait for some unknown period of time, perhaps even years, before their rights in this case are finally adjudicated.

 

7.  SCV-255496 Veurink v. Beverly Health:

            This action appears suitable for class representation. Plaintiff appears to be an adequate class representative and the settlement is presumed to be fair. More will be known at the time of the final hearing for approval when the court will have another opportunity to determine if the settlement is fair for all class members who do not opt out. The Motion for Preliminary Approval of Class Action Settlement is granted.

 

8.  SCV-255908 Oxenberg v. UPS:

The motion in this matter has been dropped from calendar by the moving party, as the case has been dismissed in its entirety.

 

9.   SCV-256264 Rivkin v. Maib:

Motion granted. Defendants unjustifiably failed to respond to discovery by failing to appear at a properly noticed deposition and failed to produce documents specified in the notices of deposition.

Defendants are ordered to appear at depositions and to produce documents without objections. Monetary sanctions are awarded in the amount of $2,105.00. Plaintiff shall draft an order consistent with this ruling.

 

10.  SCV-258101 Sheerin v. Focus Real Estate:

 Plaintiff’s Application for a Preliminary Injunction is denied.

            There is no basis for an order restraining Defendants from proceeding with the non-judicial foreclosure of the Property.  Plaintiff has been chronically behind in the payment of his homeowner’s dues since at least June 2012. He has known of the deficiency and even acknowledged a homeowner association assessment lien of $10,766.64 in his bankruptcy filing on July 1, 2014. At the present time, Plaintiff owes over $10,674.61 in monthly delinquent assessments, interest and late charges. His failure to pay his assessments has also resulted in trustee service charges of $4,432.52. Plaintiff’s refusal to pay his assessment dues is grounds for foreclosure of the Property under Civil Code §5700.

            Defendants appropriately and timely served Plaintiff with all required documents, including a pre-lien notice (Civil Code §5660), Notice of Delinquent Assessment (Civil Code §5675), and Notice of Default and Election to Sell Under Homeowner’s Association Lien (Civil Code §5710). All of these documents included the provisions required under these statutes. The arguments raised by Plaintiff in his complaint and Application for Ex-Parte Order are meritless and do not provide grounds to enjoin this sale.

 

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