Aug 27, 2014


TUESDAY, AUGUST 26, 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, AUGUST 25, 2014.  Any party requesting an appearance must notify all other parties of their intent to appear.

1.  SCV-254659 Pacific Bell v. Cole:

            This is on calendar for Defendant /Appellant Pacific Bell’s Motion for Summary Judgment.  The Plaintiffs/Respondents (the Plaintiffs) are field service technician employees for Pac-Bell. They primarily conduct their duties for Pac-Bell in the field with a company provided vehicle. The Plaintiffs were hourly employees entitled to meal and rest breaks. The Plaintiffs are subject to certain polices that govern how and where they may spend their meal breaks. The Plaintiffs submitted complaints to the Labor Commissioner regarding the restrictions, arguing that the restrictions meant that they were taking their meal breaks “on-duty” effectively denying them the benefit of the meal break. In particular, the Plaintiffs argue that Pac-Bell restricts where they may take their meal break, prohibits them from travelling to their homes during their lunch breaks, and requires them to stay with their company vehicle the entire time. The Labor Commissioner found that Pac-Bell’s restrictions on the Plaintiffs meal break effectively denied them an “off-duty” meal break. Accordingly, the Labor Commissioner awarded the Plaintiffs pay for the meal periods and interest. The present action is a trial de novo appeal from decisions of the Labor Commissioner.

Pac-Bell has moved for summary judgment, contending that the undisputed material facts entitle it to judgment in its favor as a matter of law. Pac-Bell asserts that the Plaintiffs were not “substantially restricted” during their meal periods. Pac-Bell offers evidence that each of the Plaintiffs engaged in personal activities during lunch, despite any restrictions. Pac-Bell further argues that the Plaintiffs could seek prior management approval to deviate from the restrictions. Pac-Bell contends that the Plaintiffs, and their Union, are taking an overly technical interpretation of the rules in order to establish a violation where none exists. Pac-Bell further questions the motivation of the Plaintiffs—arguing that the complaints were part of a broader strategy to “win back” a 30 minute meal period. Further, Pac-Bell argues that the Plaintiffs claims are preempted by Labor Management Relations Act (29 USC § 185 (“LMRA”)). Pac-Bell’s request for judicial is granted. Pac-Bell has made a number of evidentiary objections, all of which are overruled.

The Plaintiffs oppose, arguing that the triable issues of fact remain with respect to whether Pac-Bell substantially restricted meal period activities. The Plaintiffs rely heavily on the “Job Performance Polices and Expectations” document which details many of the rules that the Plaintiffs contend restricted their activities during their meal periods. (Exhibit A [sealed exhibits].)The Plaintiffs argue that they were both disciplined and subject to discipline for violating the Standards. The Plaintiffs assert that Pac-Bell’s policies place onerous restrictions on their lunch breaks which violate their right to a duty free meal break. The Plaintiffs further contend that the claims are not preempted as they involve the Plaintiffs’ allegations regarding a statutory right, not a contractual right under the Collective Bargaining Agreement (CBA).


LMRA § 301 does not preempt state law claims that are independent of the CBA. A claim is “independent” if it can be resolved without interpreting the CBA. The case of Valles v. Ivy Hill Corp. [(9th Cir. 2005) 410 F.3d 1071, 1080–1081] is instructive. There, the court held that the right to uninterrupted meal periods is a nonnegotiable right not subject to preemption even if employees are covered by CBA. Here, the Plaintiffs contend that Pac-Bell is not providing a duty free meal period through its restrictions on the Plaintiffs. The claims here are based entirely on the Plaintiffs’ rights under California law, and do not require this court to interpret or enforce the CBA between the parties. This is a discrete issue related to Pac-Bell’s polices which the Plaintiffs contend restrict their right to the duty free meal period. (See Valles, supra, 410 F.3d at 1081.) As a result, the present action is not preempted by § 301.

Triable Issues of Material Fact

Pac-Bell asserts that despite the language of the rules, the Plaintiffs were not actually restricted or discouraged in attending to personal activities during their meal periods.  Pac-Bell argues that nothing about the rules restricted the Plaintiffs’ activities during meal periods. In essence, Pac-Bell argues that the rules at issue were either not enforced as written, or subject to exception when they received permission from their supervisors. Further, Pac-Bell contends that it may put reasonable restrictions on the use of the company trucks, like the “out of route” rule. Moreover, Pac-Bell argues that the real restriction on the Plaintiffs was the amount of time allotted to the meal period.

The Plaintiffs offer evidence that Pac-Bell regularly reminded the Plaintiffs that they were subject to the “out of route rule,” prohibited from eating lunch with other technicians, and prohibited from going home for lunch. (PMF 21.) Further, the Plaintiffs contend that they were told that their job was a “brown bag” job, and that they were required to “be by their truck.” (PMF 36.) The Plaintiffs also offer evidence that their supervisors told them that they were restricted in what activities they could engage in during their lunch period, e.g. that Plaintiff Benzon would not be allowed to go to the gym.  (PMF 37.) The Plaintiffs also present evidence that they were not permitted to abandon their company vehicles during lunch and drive in a separate vehicle to another location. (PMF 41.) Moreover, Plaintiff Romeo presents evidence that he was in fact disciplined for driving his company truck to his home during his lunch hour. (PMF 29.)

In Brinker, the court explained the fundamental employer obligation associated with a meal break is “to relieve the employee of all duty and relinquish any employer control over the employee and how he or she spends the time.” (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1038–1039 [emphasis added].)

Here Pac-Bell is not entitled to summary judgment. There are material issues of fact with respect to what restrictions were placed on the Plaintiffs, how they were enforced, and the actual level of control asserted over the Plaintiffs during their meal periods. Applying the two step analysis from Morrillion further illustrates why summary judgment is not warranted here. The Plaintiff have presented evidence that their supervisors expected them to remain with their trucks during the lunch hour. Further, the Plaintiffs have adduced evidence that their personal activities were substantially restricted during their meal periods.

Accordingly, Pac-Bell’s motion for summary judgment is denied. The Plaintiffs shall draft an order consistent with this ruling.


2.  SCV-254612 County of Sonoma v. Mendiboure:

                Appearances are required.


3.  SCV-254820 Hogan v. Cenlar FSB:

            This is on calendar for Defendants First Tech Credit Union, Cenlar FSB, Nationstar Mortgage LLC, and Northwest Trustee Services Inc.’s (collectively the Defendants) demurrers to the Plaintiffs’ First Amended Complaint (FAC). In the FAC the Plaintiffs assert seventeen causes of action, specifically: (1) Enforce CC § 3050 Lien; (2) Dec. Relief; (3) Injunctive Relief; (4) Wrongful   Foreclosure; (5) Unjust Enrichment; (6) Slander of Title; (7) Quiet Title; (8) Negligence; (9) Promissory Estoppel; (10) Unfair Business Practices; (11) Conversion; (12) Unilateral Rescission of Mortgage against First Tech; (13) Violations of HOBR; (14) Unilateral Rescission against Cenlar/Nationstar; (15) Unilateral Rescission of Insurance Contract against State Farm; (16) Money Had and Received; and (17) Constructive Trust.  

The Defendants have generally and specially demurred to the FAC on a number of grounds. The Plaintiffs have opposed the demurrers.

For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. (See Aubry v. Tri–City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967; Adelman v. Associated Int'l Ins. Co. (2001) 90 Cal.App.4th 352, 359.)

Cenlar’s request for judicial notice is granted. The Plaintiffs’ request for judicial notice is denied.

First Cause of Action

In the First Cause of Action the Plaintiffs are seemingly seeking a determination that their alleged lien under CC § 3050 lien is “superior to any and all liens or encumbrances by [the Defendants].” It seems that there is a present controversy, as alleged, as to the existence and/or priority of the Plaintiffs’ alleged lien.

Accordingly, the demurrers to this cause of action are overruled.

Second Cause of Action

The Plaintiffs in the Second Cause of Action seek declaratory relief and a judicial determination that they “did not breach the terms of the promissory note and deed of trust.” The Plaintiffs premise this cause of action on the relief they obtained against the sellers of the Property, contending that once the rescission was final their obligations under the notes in question were extinguished.  The FAC has alleged a controversy that requires judicial determination, specifically, whether the Plaintiffs are in default of the note in light of the rescission of the purchase agreement.

Accordingly, the demurrers to this cause of action are overruled.

Third/Fifth/Seventeenth Causes of Action

As the Defendants point out, injunctive relief is a remedy, not a cause of action. (Shell Oil Co. v. Richter (1942) 52 Cal.App.2d 164, 168; see also McDowell v. Watson (1997) 59 Cal.App.4th 1155, 1159 (quoting Shell Oil).   Further, unjust enrichment is not a cause of action. ( Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793.) Likewise, constructive trust is a remedy, not a cause of action. ( Glue–Fold, Inc. v. Slautterback Corp. (2000) 82 Cal.App.4th 1018, 1023, fn. 3.)

The Defendants’ demurrers are sustained without leave to amend as to the Third, Fifth, and Seventeenth Causes of Action.

Fourth Cause of Action

The cause of action for “wrongful foreclosure” fails as there are no allegations of a trustee’s sale. (See Abdallah v. United Sav. Bank (1996) 43 Cal.App.4th 1101, 1009.)  Here, there has been no trustee's sale, and therefore no "wrongful foreclosure." 

Accordingly, the demurrers to this cause of action are sustained without leave to amend.

Sixth Cause of Action 

The FAC has failed to allege sufficient facts to allege a slander of title. The Plaintiffs do not hold title to the Property, and therefore lack standing to allege a cause of action for slander of title. Even if the Plaintiffs had an ownership interest, the basis of their claim, the recordation of a Notice of Default and Notice of Trustee’s Sale, is privileged. (See CC § 2924(d).) Moreover, the Plaintiffs fail to properly allege a pecuniary loss that resulted from the Defendants’ actions.

Accordingly, the demurrers to this cause of action are sustained without leave to amend.

Seventh Cause of Action

The touchstone of a quiet title action is a plaintiff’s alleged superior claim to title. Here, the Plaintiffs have admitted, and it has been held in the earlier litigation, the Plaintiffs do not have an ownership interest in the subject Property. Moreover, the Plaintiffs are seeking to quiet title against their lender without alleging tender.  (See Aguilar v. Bocci (1974) 39 Cal.App.3d 475, 477 [a plaintiff may not quiet title in himself without discharging his debt].)

Accordingly, the demurrer to the Seventh Cause of Action is sustained without leave to amend.

Eighth Cause of Action

The Plaintiffs premise their cause of action for negligence on the Defendants continuing their “foreclosure activities” after being “notified of the rescission in the underlying case….” The Plaintiffs’ have failed to allege facts to support a negligence cause of action. The Plaintiffs have not properly alleged that the Defendants had a duty to “discontinue their foreclosure activities.” Further, the Plaintiff have failed to allege that the Defendant had a duty to them that required them to cease foreclosing on the property. The current state of the law does not support the Plaintiffs’ claim for negligence. “[A]s a general rule, a financial institution owes no duty of care to a borrower when the institution's involvement in the loan transaction does not exceed the scope of its conventional role as mere lender of money.” (Nymark, supra, 231 Cal.App.3d at p. 1096.) Here, the Defendants are acting in the role of a secured money lender who is foreclosing on the Property.

Accordingly, the demurrers to this cause of action are sustained without leave to amend.

Ninth Cause of Action

The elements for promissory estoppel are: “(1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) his reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.” (Laks v. Coast Fed. Sav. & Loan Assn. (1976) 60 Cal.App.3d 885, 890 (Laks ).) While promissory estoppel applies whenever a promissor induces reliance on a promise that would result in injustice if not enforced, a mere “ ‘hopeful expectation [ ] cannot be equated with the necessary justifiable reliance.’ [Citation.]” (Aceves v. U.S. Bank N.A. (2011) 192 Cal.App.4th 218, 227 (Aceves ).)

The FAC fails to allege a clear and unambiguous promise or does the FAC allege reasonable reliance. The demurrers to this cause of action are sustained with leave to amend.

Tenth Cause of Action

The Plaintiffs premise the UCL claim on the Defendants’ violation of the HOBR and the alleged wrongful foreclosure. As discussed infra, the Plaintiffs have not properly alleged either a violation of the HOBR or a wrongful foreclosure claim. A violation of BP § 17200 is a derivative claim which will either survive or fail with the substantive claims.

Accordingly the demurrers to this cause of action are sustained with leave to amend.

Eleventh and Sixteenth Causes of Action

The Plaintiffs contend that their payments to the Defendants under the respective notes constitutes conversion on the part of the Defendants. “The elements of a conversion are the plaintiff's ownership or right to possession of the property at the time of the conversion; the defendant's conversion by a wrongful act or disposition of property rights; and damages.” (Oakdale Village Group v. Fong (1996) 43 Cal.App.4th 539, 543–544.)  Here, the Plaintiffs allege that they entered into loan agreements with the Defendants. This allegation would seem to defeat any claim that the Defendants held the loan payments “by a wrongful act.” The claim by the Plaintiffs that the Defendants “have a legal obligation…to return [the Plaintiffs’] funds” are not supported by CC §§ 3050, 1692, or 1712. (See FAC ¶ 139.) Moreover, the Plaintiffs common count for money had and received fails for the same reason.

Accordingly, the demurrers to these causes of action are sustained without leave to amend.

Twelfth and Fourteenth Causes of Action

These causes of action are for “unilateral rescission” of the underlying mortgages. Each of these causes of action fail to allege that the Plaintiffs have: “Restore[d] to the other party everything of value which [they] ha[ve] received from [them] under the contract or offer to restore the same upon condition that the other party do likewise….” (CC § 1691.) At the very least the Plaintiffs must allege that they are willing to tender the consideration provided by the Defendants. (See Davenport v. Litton Loan Servicing, LP (N.D.Cal.,2010) 725 F.Supp.2d 862, 880; see also Joshua Tree Townsite Co. v. Joshua Tree Land Co. (1950) 100 Cal.App.2d 590 [Rescission of contract is not allowable where party demanding it cannot or does not restore other party to condition he would have been in but for contract.].) The FAC fails to allege tender, and therefore these causes of action fail.

Accordingly, the demurrers to these causes of action are sustained with leave to amend.

Thirteenth Cause of Action

The court notes that a notice of bankruptcy filing was filed in this case indicating that the Plaintiffs have filed a case under Chapter 13 of the bankruptcy code. The protections of the HOBR only apply to those who fall under the definition of “borrower” as stated in CC § 22920.5(c), which provides that “’borrower’ means any natural person who is a mortgagor or trustor and who is potentially eligible for any federal, state, or proprietary foreclosure prevention alternative program offered by, or through, his or her mortgage servicer.” However, CC § 2920.5(c)(2)(C) provides that: “For purposes of the sections listed in paragraph (1), ‘borrower’ shall not include any of the following: … An individual who has filed a case under Chapter 7, 11, 12, or 13 of Title 11 of the United States Code and the bankruptcy court has not entered an order closing or dismissing the bankruptcy case, or granting relief from a stay of foreclosure.” Here, the Plaintiffs have filed for bankruptcy protection, and therefore are not considered borrowers for purposes of the HOBR.

Accordingly, the demurrer to this cause of action is sustained with leave to amend.


The Defendants respective demurrers to the First and Second Causes of action are overruled. The respective demurrers to the Ninth, Tenth, Twelfth, Thirteenth, and Fourteenth causes of action are sustained with leave to amend. The respective demurrers to Third, Fourth, Fifth, Sixth, Seventh, Eighth, Eleventh, Sixteenth and Seventeenth causes of action are sustained without leave to amend.

            The Defendants are to draft orders consistent with this ruling.


4.  MCV-227743 Bramhall v. Miller Oil Co.:

            The court has received and reviewed Plaintiff’s Motion for an Award of Attorney Fees, along with all supporting documents.  Additionally, the court has received and reviewed Defendants’ Opposition thereto and Defendants’ Request for Judicial Notice.  Last, the court has received and reviewed Plaintiff’s Reply, Plaintiff’s Supplemental Declaration in Support of Reply, and Plaintiff’s Objections to Defendant Miller’s Evidence.

            Plaintiff’s objections to Defendants’ Request for Judicial Notice as to this court’s Final Decision After Court Trial are overruled.  Plaintiff’s objections to the content of attorney Goldstone’s Declaration are granted.  In all other respects, Defendants’ Request for Judicial Notice is granted.
            Plaintiff’s Motion for Attorney Fees is granted in its entirety.  Plaintiff was the prevailing party
[1] on all causes of action, not just a cause of action sounding in negligence.[2]  Plaintiff is entitled to attorney fees.[3],[4]  Plaintiff’s fees are not excessive or unreasonable.[5]

            Accordingly, Plaintiff’s motion is granted and plaintiff is awarded fees in the amount of $21,725.00.


5.  MCV-2230625 Midland Funding v. Vielma:

            This is a collections action arising from the Defendant’s alleged default on a credit card.

On March 26, 2014, the Plaintiff served Requests for Admission.  The Defendant failed to respond. In response, the Plaintiff filed this motion, seeking to have the requests for admissions deemed admitted. (CCP § 2033.280.)  No opposition to the motion has been filed.

Plaintiff's motion is GRANTED. The Plaintiff is to draft an order consistent with this ruling.


6.  MCV-231228 State Farm v. City of Rohnert Park:

            This matter has been dropped from calendar as a dismissal of the entire action has been filed.


7.  SCV-254575 Reverse Mortgage v. Kolbach:

            This is on calendar for Plaintiff’s motion to file a First Amended Compliant.  The Plaintiff’s proposed amended complaint would add additional defendants. No opposition has been filed.

Here, the Plaintiff’s motion is procedurally flawed to an extent that it must be denied. First, the Plaintiffs have not filed a proof of service.  Further, CRC Rule 3.1324 provides: “A separate declaration must accompany the motion and must specify: (1) The effect of the amendment; (2) Why the amendment is necessary and proper; (3) When the facts giving rise to the amended allegations were discovered; and (4) The reasons why the request for amendment was not made earlier.” Here, the Plaintiff’s declaration does not satisfy the requirements of CRC Rule 3.1324—it only indicates that a “skip trace…was able to locate two heirs with a possible interest in the property.”   Moreover, the motion fails to provide a memorandum of points and authorities. (See CRC Rule 3.1113.)

Accordingly, the motion to file an amended complaint is denied.


8.  SCV-254805 In Re $34,003.00 US Currency:

            This is on calendar for the People’s motion for default.

The People seek a default against Rebecca Harte under H&S § 11488.5(b). In support of its motion the People submit the declaration of Detective John Whitten, who presents a factual account of the circumstances surrounding the seizure of the money at issue. (See generally Dec. Whitten.) This declaration is more than sufficient to present a prima facie case for forfeiture against the currency at issue. (See H&S 11488.5(b).)

Ms. Harte has filed a “Notice of Appearance by Respondent and Real Party in Interest; Notice of Intent to Not File Formal Opposition Papers to People’s Motion for Default.” Ms. Harte has indicated that she will not file an opposition to the instant motion. Notably, Ms. Harte has not filed a claim to the property. As a result, the People are entitled to take Ms. Harte’s default.

Accordingly, the People’s motion for default is granted. The People shall draft an order consistent with this ruling.


9.  SCV-254806 In Re $70,268.42 US Currency:

            This is on calendar for the People’s motion for default.

The People seek a default against Randell Keller under H&S § 11488.5(b), which provides: “If at the end of the time set forth in subdivision (a) there is no claim on file, the court, upon motion, shall declare the property seized or subject to forfeiture pursuant to subdivisions (a) to (g), inclusive, of Section 11470 forfeited to the state. In moving for a default judgment pursuant to this subdivision, the state or local governmental entity shall be required to establish a prima facie case in support of its petition for forfeiture.” In support of its motion the People submit the declaration of Detective John Whitten, who presents a factual account of the circumstances surrounding the seizure of the money at issue. (See Dec. Whitten.) This declaration is more than sufficient to present a prima facie case for forfeiture. (See H&S 11488.5(b).)

The motion is opposed by Real Party in Interest Randall Keller (RPI), who argues that the People are not entitled to default because he filed an answer to the Petition for forfeiture. RPI contends that his answer is the functional equivalent to a “claim” and as such prevents the People from taking his default.

The People reply, contending that the RPI’s answer fails to satisfy the requirements of a “claim” in that the RPI fails to assert the type, nature, amount, or percentage interest in the subject property. The People argue that strict compliance with the forfeiture statute is required and that the answer filed by the RPI fails to satisfy the claim requirement.

Here, the answer serves as the functional equivalent to a claim under H&S § 11488.5(a) and, therefore, prevents the entry of default. The government has the burden of proof in a forfeiture proceeding. (H&S §§ 11488.4(i), 11488.5(d).) In a contested action seeking forfeiture of cash or negotiable instruments of at least $25,000 in value, proof by clear and convincing evidence is required. (H&S § 11488.4(i)(4).) RPI’s verified answer effectively challenges the forfeiture—requiring the People to present clear and convincing proof that they are entitled to seize the property at issue.

The People’s position that the forfeiture statutes should be construed against the RPI is not well-taken. It is well settled that “‘[s]tatutes imposing forfeitures are not favored and are to be strictly construed in favor of the persons against whom they are sought to be imposed.’ [Citations.]” (People v. $28,500 United States Currency (1996) 51 Cal.App.4th 447, 463.) This disfavor applies “notwithstanding the strong governmental interest in stemming illegal drug transactions....” (People v. Ten $500 etc. Traveler's Checks (1993) 16 Cal.App.4th 475, 479.) The RPI’s answer puts the People’s forfeiture at issue just as a verified claim would; the title of the pleading is not controlling. (See CCP § 475.)

Accordingly, the People’s motion for default is denied. The RPI shall draft an order consistent with this ruling.


10.  SCV-255142 Ananda Partners v. 101 Houseco:

            The hearing on Plaintiffs’ Motion to Compel Responses from Defendant David Lonich is continued to October 21, 2014 at 8:30 in Department 19, in accordance with the Order on Ex Parte Application filed on August 22, 2014.


11.  MCV-192507 Capital One v. Rosa:

            This matter has been addressed by the court in its Ruling after Hearing filed and served on June 11, 2014.  As such, the matter is dropped from this court’s calendar.

[1] Civ. Code section 1717.

[2] See Plaintiff’s Complaint.

[3] This topic was twice discussed by the court with all counsel.

[4] Civil Code section 1717; Maynard v. BTI Group, Inc. (2013) 216 Cal.App.4th 984.

[5] The likely dramatic increase in fees was also discussed by court and counsel.

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