Jul 24, 2014


TUESDAY, JULY 22, 2014 - 8:30 a.m.

COURTROOM 19 – Judge Arthur A. Wick

3055 Cleveland Avenue, Santa Rosa, CA  95403


Court Call is now 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 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, it will be necessary for you to contact Judge Wick’s Judicial Assistant by telephone at (707) 521-6730 by 4:00 p.m., MONDAY, JULY 21, 2014.  Any party requesting an appearance must notify all other parties of their intent to appear.

1.  SCV-251765 Smith v. Davison:

            Cross-Defendants Wright, McKnight, Smith and Sonoma Medicinal Herbs Patient to Patient Non Profit Collective, Inc. (SMHC) (collectively the “Cross-Defendants”) have moved to strike the  First Amended Cross-Complaint (FACC) pursuant to CCP § 425.16. The Cross-Defendants contend that the action is a SLAPP suit which arises from their constitutionally protected activity in petitioning the government. In particular, the Cross-Defendants characterize the FACC as pertaining to the Cross-Defendants statements to Sonoma Permit and Resource Management Dept. (PRMD), the Sonoma County Superior Court, and the State Board of Equalization. The Cross-Defendants’ request for judicial notice is granted.

The motion is opposed by Cross-Complainant Eric Davidson (Davidson) on the sole ground that the instant motion is untimely.


The anti-SLAPP motion must be filed within 60 days after service of the complaint or amended complaint. Thereafter, a motion may be permitted in the court's discretion “upon terms it deems proper.” [CCP § 425.16(f)] The court has discretion to consider and grant a late-filed anti-SLAPP motion on the merits even if defendant failed to request leave of court to file an untimely motion. (Chitsazzadeh v. Kramer & Kaslow (2011) 199 Cal.App.4th 676, 684.) As the court in Chitsazzadeh opined: “[T]he fact that a special motion to strike was filed untimely, standing alone, cannot support a finding that the motion is frivolous or solely intended to cause unnecessary delay. Instead, whether a special motion to strike is totally and completely without merit in this context necessarily depends on the merits of the motion.”

Here, the Cross-Defendants effected a substitution of counsel on April 4, 2014; the instant motion was filed on May 14, 2014.  While “[a] claim of excuse from untimeliness based on late discovery after obtaining new counsel is generally unavailing[] (Olsen v. Harbison (2005) 134 Cal.App.4th 278, 285) here Davidson has provided no evidence of prejudice, has been provided adequate notice of the motion, and an opportunity to oppose the motion on the merits.[1] As discussed below, the Cross-Defendants’ motion has merit, and is not frivolous or is there any indication that the motion was made in an attempt to harass the Cross-Complainant, or delay the resolution of the action.  Therefore the court will exercise its discretion and rule on the merits of the motion.

Cross-Defendants Wright and McKnight

On July 17, 2014, the Cross-Complainant filed a dismissal without prejudice as to Cross-Defendants Wright and McKnight. It is well-settled that if a complainant voluntarily dismisses an action after an anti-SLAPP motion has been filed, the court loses jurisdiction to rule on the motion. (See Law Offices of Andrew L. Ellis v. Yang (2009) 178 CA4th 869, 878–879.) Accordingly, the motion with respect to these two Cross-Defendants is dropped.[2]

Remaining Cross-Defendants

In order for the remaining Cross-Defendants to invoke the protection of the anti-SLAPP statute, they must demonstrate that the FACC “arises from” their exercise of free speech or petition rights as defined in CCP § 425.16(e). ( Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61.) In determining whether defendant has sustained its initial burden, the court considers the pleadings, declarations and matters that may be judicially noticed. (Brill Media Co., LLC v. TCW Group, Inc. (2005) 132 Cal.App.4th 324, 329.)

“(W)here the defendant shows that the gravamen of a cause of action is based on nonincidental protected activity as well as nonprotected activity, it has satisfied the first prong of the SLAPP analysis.” ( Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1551.) When a single cause of action alleges both acts protected under the statute and nonprotected acts, the entire cause of action may be stricken under § 425.16. Plaintiffs “cannot frustrate the purposes of the SLAPP statute through a pleading tactic of combining allegations of protected and non-protected activity under the label of one ‘cause of action.’ ” ( Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 308, 106 CR2d 906, 918; Cho v. Chang (2013) 219 CA4th 521, 527, 161 CR3d 846, 851]

Here, the FACC alleges five causes of action against the Cross-Defendants, to wit, the Sixth (Conversion), Seventh (Unjust Enrichment), Eighth (Conspiracy), Ninth (Defamation), and Tenth (Violation BP § 17200). The Cross-Defendants indicate that there is no Ninth Cause of Action, and the FACC skips from paragraphs 113 to 124. (MPA 5:13-14.) The FACC attached to the RJN of the Cross-Defendants indeed omits those paragraphs and the Ninth Cause of Action for Defamation. The FACC in the court’s file, however, contains these paragraphs and the Ninth Cause of Action. Since the Cross-Defendants have failed to present any argument on the Ninth Cause of Action, the court will only rule as to the Sixth, Seventh, Eighth and Tenth causes of action.

The court notes that it previously ruled as to whether the Sixth, Seventh, Eighth and Tenth causes of action “arise from” protected activity. Given that the FACC fails to differentiate between cross-defendants in its allegations, the same analysis of the court made on the previous anti-SLAPP motion pertains here. Therefore, the court finds that the Cross-Defendants here have met their burden as to the Eighth Cause of Action Conspiracy (See FACC ¶¶ 108, 111, 114) and Tenth Cause of Action for Violation of BP § 17200 (FACC ¶¶126, 127) . The Cross-Defendants have not met their burden with respect to the Sixth Cause of Action for Conversion or the Seventh Cause of Action for Unjust Enrichment; the gravamen of those causes of action pertain to the alleged conversion of the Cross-Complainant’s business, and the alleged “protected activity” was incidental to the alleged wrongdoing. As previously noted, the Cross-Defendants have failed to present any argument with respect to the Ninth Cause of Action and, therefore, have not met their burden.

Since the Cross-Defendants met their initial burden on the Eighth and Tenth causes of action, the burden then shifts and the Cross-Complainant must show a probability of prevailing on the claim. “The [cross-complainant] must demonstrate the [cross-] complaint is both legally sufficient and is supported by a prima facie showing of facts sufficient to sustain a favorable judgment if the evidence submitted by the plaintiff is given credit. ”  (Turner v. Vista Pointe Ridge Homeowners Assn. (2009) 180 Cal.App.4th 676, 681–682. )

            Here, the Cross-Complainant offers no argument, authorities, or evidence to support a prima facie case as to the Eighth or Tenth Causes of Action. Accordingly, the Cross-Defendants’ motion is granted as to the Eighth and Tenth Causes of Action, and denied as to the balance of the causes of action. The Cross-Defendants shall prepare an order consistent with this ruling.

2. SCV-254344 Destiny v. Siebert:

This is on calendar for Defendant Leisure Lake Mobile Home Park’s demurrer to the First Amended Complaint (FAC). The Defendant contends that the FAC fails to state facts to support any of the causes of action. The Defendant contends that the First Cause of Action for Negligence fails to properly allege a duty. The Defendant further argues that the Second Cause of Action for Intentional Infliction of Emotional Distress contains no allegations that the Defendant engaged in any conduct to cause emotional distress to the Plaintiff. The Defendants further contend that the Third and Fourth Causes of Action, for violations of Penal Code §§ 243(d) and 422 respectively, fail to allege a civil cause of action.

The Plaintiff opposes, arguing that the Complaint sufficiently alleges causes of action for negligence and NIED. The Plaintiff seeks leave to amend if the demurrer is sustained.

The court will sustain Defendants demurrer to all four causes of action. The FAC fails to properly allege facts that establish that Leisure Lake owed a duty to Plaintiff in preventing the alleged assault. (See Valdez v. J.D. Diffenbaugh Co. (1975) 51 Cal. App. 3d 494)  Further, the FAC has alleged no facts that show that Leisure Lake intentionally caused Plaintiff severe emotional distress. (See Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001) Lastly, the causes of action for violations of the Penal Code are not appropriate as to Leisure Lake Mobile Home Park. In any event, the Plaintiff has alleged no facts, and the court can think of no circumstances, by which the FAC could be amended to properly allege that the mobile home park assaulted the Plaintiff or made criminal threats. Plaintiff’s opposition does nothing to remedy these flaws. Moreover, the Plaintiff has failed to show in what manner he can amend the Complaint, and how that amendment will change the legal effect of the pleading.

Therefore the Defendant’s demurrer to Plaintiff’s First Amended Complaint is sustained in its entirety, without leave to amend. (Heritage Pac. Fin'l, LLC v. Monroy (2013) 215 Cal.App.4th 972, 994.) The Defendant shall draft an order consistent with this ruling.

3.  SCV-254778 Renteria v. County of Sonoma:

This is on calendar for Defendant Petaluma City School District’s (PCSD) demurrer to the Third, Fourth, and Fifth Causes of Action. PCSD demurs to the Third COA on the grounds that it fails to allege sufficient particularity with respect to the alleged deficiencies on the property. Further, PCSD argues that it is immune from liability under GC § 830.4 and has no duty to install traffic signs. PCSD also contends that the Third COA fails because the Complaint fails to allege that PCSD hired any independent contractors. PCSD further argues that the Fourth and Fifth COAs are defective in that they fail to sufficiently allege that a dangerous condition existed. 

The Plaintiffs oppose, arguing that the Complaint alleges enough facts to survive demurrer. (Citing Complaint ¶¶ 51-53, and 61.)

It is well settled that a claim alleging a dangerous condition may not rely on generalized allegations but must specify in what manner the condition constituted a dangerous condition. Brenner v. City of El Cajon, 113 Cal. App. 4th 434, 6 Cal. Rptr. 3d 316 (2003). Accordingly, the Plaintiff must specify in what manner the condition at issue constituted a dangerous condition. See Cerna v. City of Oakland (2008) 161 Cal. App. 4th 1340. Plaintiff's allegations, and ultimately the evidence, must establish a physical deficiency in the property itself. Zelig v. County of Los Angeles (2002)27 Cal.4th 1112, 1135–1136; Brenner, supra, 113 Cal.App.4th at pp. 440–441, 6 Cal.Rptr.3d 316. The court recognizes that though public entity is not liable for failure to install traffic signs or signals, if it undertakes to do so and invites public reliance on such signs or signals it may be held liable for creating a dangerous condition in so doing. De La Rosa v. City of San Bernardino (1971) 16 Cal.App.3d 739. Similarly, where public entity undertakes to install signs and such signs themselves create a dangerous condition, liability may be predicated on that basis. Hilts v. Solano County (1968) 265 Cal.App.2d 161.

Here, PCSD has challenged the Complaint on the grounds that it fails to detail the alleged dangerous condition. PCSD’s demurrers to the Complaint’s three causes of action are well taken. The Complaint generally lists multiple separate acts and/or omissions the Plaintiffs claim constituted a dangerous condition. The problem, however, is that the Complaint fails to tell PCSD in what manner the existence of these omissions was hazardous.  Further, the Complaint fails to inform PCSD about the nature of the relationship between the alleged deficiencies and the injuries suffered by the Plaintiffs. (See People ex rel. Dept. of Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1486; see also Brenner, supra.) The Complaint here alleges that the Plaintiffs’ injuries were a result of the negligent operation of the vehicle—it fails to present a specific causal link between PCSD’s alleged maintenance of a dangerous condition and the Plaintiffs’ injuries.

Plaintiffs’ reliance on Joyce v. Simi Valley Unified School Dist. [(2003) 110 Cal.App.4th 292] is misplaced. First, Joyce did not involve a demurrer, or the sufficiency of pleading a dangerous condition. Further, the exact contention of the Plaintiff there was known to the defendant school district, i.e. the open school yard gate next to the busy, uncontrolled intersection. This specificity is lacking here. Further, the Plaintiffs’ allegations regarding a “trap” (Complaint ¶ 61G) are also too general to state a valid cause of action. (See Song X. Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 1190.)

Accordingly, the PCSD’s demurrer to the Complaint is sustained, with leave to amend. PCSD is to draft an order consistent with this ruling.


4.  MCV-230787 Idexx v. Schwartzman:    

This is on calendar for the Plaintiffs motion to have requests for admissions deemed admitted, and to compel responses to written discovery.

This is a collections action arising from the Defendant’s alleged failure to repay a debt of $3,290.53. On April 10, 2014 the Plaintiff served Requests for Admissions, Interrogatories and Requests for Production of Documents on the Defendant. (Dec. Pollack at ¶ 3). The Defendant failed to respond to any of the discovery. (Id. at ¶ 5.)  On May23, 2014, the Plaintiff sent a meet and confer letter to Defendant informing him that his responses were due without objections. (Id. ¶ 5.) The Defendant failed to respond. In response, the Plaintiff filed the instant motion, seeking to have the requests for admissions deemed admitted and to compel responses.  (CCP §2033.280(b); and CCP § 2030.290(b). ) No opposition has been filed by Defendant.

Since the Defendant failed to respond, the Plaintiff is entitled to all requests for admissions being deemed admitted, and to an order compelling Reponses to the written discovery. Accordingly, the Plaintiff's motion is granted, and the Defendant shall provide responses to the written discovery within 10 days of service of notice of this order, without objections. The Plaintiff is awarded $465.00 in sanctions. The Plaintiff is to draft an order consistent with this ruling.


5.  SCV-253110 Cotati Brand Eggs v. Cary & Associates:

            This is on calendar for the Defendant/Cross-Complainant Cary & Associates Builders, Inc.’s (Cary) motion to amend its Cross-Complaint. Cary seeks to add Matulich Architects (Matulich) as a Cross-Defendant. Cary contends that it was not aware of the Plaintiff’s design defect claims until June 19, 2014. (Dec. Raymundo ¶ 3.) Cary contends that the amendment would not add any additional legal claims or theories—simply an additional party.

Plaintiffs oppose, arguing that the motion was brought in bad faith, and relies on inadmissible evidence. The Plaintiffs object to Cary’s attorney’s declaration that she learned of the alleged design defects at a joint expert meeting. (Raymundo Dec. ¶ 3.) The Plaintiffs argue that Ms. Raymundo does not have personal knowledge of the fact that the Plaintiffs raised a design defect claim. Further, the Plaintiffs contend that they have not raised a design defect claim. Plaintiff note that Cary can seek the same relief in a separate indemnity action against Matulich. The Plaintiffs also argue that they would be prejudiced by this amendment, because the trial date would have to be vacated because they are funding the litigation and the mitigation of the construction defects. Plaintiffs’ evidentiary objection is overruled.

Under CCP section 473(a)(1), amendments are left to the sound discretion of the trial court.  Judicial policy favors amendment to allow resolution of all potential claims and disputes between parties, so such motions are examined liberally.  (Nestlé v. Santa Monica (1972) 6 Cal.3d 920, 939.)  As long as the motion is timely and will not prejudice a party, it is normally an abuse of discretion to refuse to allow amendment if the denial will deprive a party of a meritorious claim or defense.  (Morgan v. Sup.Ct. (1959) 172 Cal.App.2d 527, 530; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596.)

Normally delay alone is not a sufficient reason to deny amendment, unless the delay has resulted in prejudice to another party.  (Hirsa v. Sup.Ct. (Vickers) (1981) 118 Cal.App.3d 486, 490. ) Prejudice exists where the amendment would require delaying trial so as to cause a loss of critical evidence, added costs of preparation, increased discovery burdens, and similar problems.  (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488. )

It is well-settled that cross-complaints for comparative equitable indemnity would appear virtually always transactionally related to the main action. (Time for Living, Inc. v. Guy Hatfield Homes/All American (1991) 230 Cal.App.3d  30, 38; also see CCP § 428.10(b).) Here, the Plaintiffs contend that there is no claim for design defect, and therefore no need to include the Matulich. The subject of design defects and privity of contract have recently been dealt with by the California Supreme Court. (See Beacon Residential Community Assn. v. Skidmore, Owings & Merrill (2014) --- P.3d ----, 2014 WL 2988058.)  The Plaintiffs assert that there is no claim against Matulich in that they did not design the defects in question, i.e. the ventilation piping under the floor. While this may be true, given the holding in Beacon, Cary should be allowed to add Matulich. Further, whether trial will have to be continued is speculative at this juncture.

Accordingly, the motion to amend is granted. Cary shall file and serve the proposed first amended cross-complaint within 10 days of this order. Cary is to draft an order consistent with this ruling.


6.  SCV-254565 Brennan v. Ford Motor Company:

            This matter has been continued to October 7, 2014 at 8:30am in Department 19 by the stipulation of the parties.


7.  SCV-255075 First Community v. Claeyssens:

This is on calendar for Plaintiff’s applications for prejudgment writs of attachment against Defendants Keith and Stacy Kunde (the Kundes). The Plaintiff seeks to attach the assets of the Kundes with respect to their commercial guarantee of Defendant Claeyssens loan.  The Plaintiff alleges that in a March 15, 2012 agreement, the Plaintiff reduced the interest rate on a $2,362,977.86 loan to the Claeyssens, which included the guarantees of the Kundes. The loan is secured by real property. The loan is now in default (the subject of this action) and the Plaintiffs are seeking to attach the assets of the Kundes.

The Kundes oppose arguing that attachment cannot issue where the loan is one that is secured by real property. Further, the Kundes contend that their guarantee did not arise out of their business—instead it was a personal favor to friends—that the underlying guarantee is not subject to attachment.

The Kundes opposition is untimely. The Kundes field their opposition on July 17, 2014. The hearing on this matter is scheduled for July 22, 2014. Any opposition must be served at least 5 court days before the hearing. (See CCP § 484.060(a).) The statute is clear: “If the defendant fails to file a notice of opposition within the time prescribed, the defendant shall not be permitted to oppose the issuance of the order.” (Id.)

Plaintiff has the burden of proof to establish four things: (1) the claim is one upon which an attachment may be issued; (2) the probable validity of the claim upon which the attachment is based; (3) attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based, and (4) the amount to be secured by the attachment is greater than zero. (See CCP §484.090.)  Given the Kundes’ waiver, the Plaintiff has met its burden on elements. 

Accordingly, the Plaintiff’s applications are granted in the amount of $2,352,793.06 on the condition that it obtain an undertaking in the amount of $10,000 per writ. (See CCP § 489.220; and Vershbow v. Reiner (1991) 231 Cal.App.3d 879, 882.) The Plaintiff shall draft an order consistent with this ruling.

[1] In Olsen the anti-SLAPP motion was made five months after new counsel was associated as counsel.

[2] As a result, this court’s references to the “Cross-Defendants” hereinafter shall only include the remaining movants who were not dismissed. 


© 2014 Superior Court of Sonoma County