Oct 19, 2017

TENTATIVE RULINGS

LAW & MOTION CALENDAR

Wednesday, October 4, 2017, 3:00 p.m.

Courtroom 19 – Hon. Arnold D. Rosenfield for the Hon. Allan D. Hardcastle

3055 Cleveland Avenue, Santa Rosa

 

CourtCall is available for all Law & Motion appearances, EXCEPT parties in small claims cases and 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, Tuesday, October 3, 2017.  Parties in small claims cases and motions for claims of exemption are exempt from this requirement.

 

PLEASE NOTE:  The court no longer provides Court Reporters for motion hearings.  If they wish, the parties may confer and arrange for one of the parties to bring a privately retained Certified Shorthand Reporter to serve in the matter.

 


 

1.         MCV-240838, Collectronics, Inc. v. Latin Hospitality Group, LLC

 

            Juan Garduno specially appears to bring this motion to quash service of summons of the complaint filed by Collectronics, Inc. (“Plaintiff”).  Mr. Garduno brings this motion pursuant to Code of Civil Procedure section 418.10 and on the grounds Plaintiff never effectuated proper service of the summons and complaint on Mr. Garduno because Mr. Garduno, a resident of Mexico, was physically present in Mexico at the time of the alleged service.  Mr. Garduno contends that the proof of serve filed by Plaintiff, which declares under penalty of perjury that Mr. Garduno was personally served at 9:30 a.m. on June 1, 2017 in California, is false.  Plaintiff has not opposed the motion and in fact, filed a request to dismiss Mr. Garduno from the action on September 18, 2017, i.e., the same day this motion to quash was filed.

 

            Accordingly, based on dismissal of Mr. Garduno from this action which was entered by the Court on September 18, 2017, the present motion is MOOT.   

 

            Unless contested, this tentative ruling will become the final ruling of the Court. 

 

 

2.         SCV-256117, Kennedy v. Emericare, Inc.

 

            DROPPED from calendar at the request of counsel for moving party.

 

 

3.         SCV-256354, Becerra v. Hughes

 

            DROPPED from calendar pursuant to the 8/21/17 OEX minutes.

 

 

4.         SCV-257455, Lynmar Winery v. Wright Contracting

 

            Defendant Dimensions 4 Engineering, Inc.’s demurer to the first amended complaint is CONTINUED to Wednesday, November 1, 2017 at 3:00 p.m. in Courtroom 19 to allow the parties time to meet and confer as required by Code of Civil Procedure section 430.41.  Specifically, section 430.41 states that “[b]efore filing a demurrer pursuant to this chapter, 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” and “[i]f an amended complaint, cross-complaint, or answer 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.”  (Code Civ. Proc. § 430.41(a).  Additionally, the Code states that “[a]s 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, cross-complaint, or answer shall provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer 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: (A) The 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 “(B) That 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).

 

            Although a determination that the meet and confer process was insufficient, or in this case non-existent, shall not be grounds to overrule or sustain a demurrer, the Court believes that the meet and confer requirement is especially applicable to this case and would prove particularly helpful to the parties to resolve some of the issues raised in the demurrer.  For instance, Plaintiff’s opposition to the demurrer concedes that certain causes of action that it alleged are improper and has agreed to dismiss those causes of action.  Additionally, in its reply, Defendant concedes that Defendant “should be allowed one more opportunity to amend its negligence claim,” except for the prayer for attorney’s fees.  These are the very kinds of issues that the meet and confer requirement was designed to address, i.e., to determine if the parties can reach an agreement that would resolve objections to be raised in the demurrer.  Further complicating this demurrer is the fact that Defendant has failed to comply with Rule of Court, rule 3.1320(a), which states “[e]ach ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint…or to specified causes of action…”  (Cal. R. Ct. 3.1320(a).)  Here, Defendant fails to state whether the objections identified in the demurrer apply to the entire complaint or to specific causes of action. 

 

            Accordingly, the hearing on the demurrer is continued to the Court’s Law and Motion calendar on November 1, 2017 and the parties are ORDERED to meet and confer, in good faith, as required by Code of Civil Procedure section 430.41(a)(1)-(2).  Additionally, no later than October 20, 2017, Defendant shall file a declaration as required by Code of Civil Procedure section 430.41(a)(3).

 

            Finally, Defendant’s motion to strike Plaintiff’s prayer for attorney’s fees is GRANTED, with leave to amend, if a contractual or statutory basis for an award of attorney’s fees can be alleged.  (See, Code Civ. Proc. § 1033.5(a)(10).)     

 

 

5.         SCV-258891, Logan v. Lane

 

            Defendants’ motion for terminating sanctions is DENIED.  Although the Court has broad discretion to impose sanctions, including terminating sanctions, if a party fails to obey an order compelling discovery responses, terminating sanctions are a drastic penalty and should be only be used sparingly.  (See, Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604 [despite trial court’s broad discretion in imposing discovery sanctions, “the courts have long recognized that the terminating sanction is a drastic penalty and should be used sparingly”]; see also, Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992 [discovery sanctions “should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery”]; Parker v. Wolters Kluwer United States, Inc. (2007) 149 Cal.App.4th 285, 301 [“it is well established the purpose of discovery sanctions is not to provide a weapon for punishment, forfeiture and the avoidance of a trial on the merits... but to prevent abuse of the discovery process and correct the problem presented ...”].)  In fact, some courts have held that terminating sanctions may only be imposed if there was a failure to comply with a discovery order and the failure was willful.  (Liberty Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1102; see also, Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280 [terminating sanctions are appropriate only “where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules”].)

 

            Here, Defendants have not demonstrated that Plaintiff’s failure to comply with the Court’s August 2, 2017 Order was willful, that there has been a history of abuse in this case, or that a less severe sanction would not produce compliance with the discovery rules.  In fact, although Plaintiff’s compliance with the Court’s Order was belated and potentially spurred by the filing of this motion, the underlying discovery responses have been served and payment of the required sanctions has been made.  Accordingly, terminating sanctions are not warranted in this case and Defendants’ motion is denied.

 

            Additionally, Defendants’ belated request for monetary sanctions, which is made for the first time in the conclusion of their reply brief, is also DENIED.  (See, Code Civ. Proc. § 2023.040 [“A request for a sanctions shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought…”  (Code Civ. Proc. § 2023.040.) 

 

            Plaintiff’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.

 

 

6.         SCV-259458, Parrott v. Severson

 

            Plaintiff’s Motion to Quash the deposition subpoena is GRANTED.  Code of Civil Procedure section 1985.3 provides that “[a]ny consumer whose personal records are sought by a subpoena duces tecum and who is a party to the civil action in which this subpoena duces tecum is served may, prior to the date for production, bring a motion under Section 1987.1 to quash or modify the subpoena duces tecum.”  (Code Civ. Proc. § 1985.3(g).)  A deposition subpoena may be attacked by a motion to quash for several reasons, including that it seeks records beyond the permissible scope of discovery because they are privileged, private, otherwise protected from disclosure and/or because they are not “relevant to the subject matter.”  (Cal. Prac. Guide, Civ. Proc. Before Trial (Rutter 2016) § 8:598, p. 8E-70.) 

 

            The information sought invades the Plaintiff’s constitutional right to privacy, specifically, set forth in Article 1, section 1 of the California Constitution (John B. v. Sup. Ct. (2006) 28 Cal.4th 1177, 1198.  “The right of privacy extends to medical records [citation omitted].”  Ibid; see also Lantz v. Sup. Ct. (1994) 28 Cal.App.4th 1938, 1953.

 

            When discovery seeks disclosure of this type of private information (medical records), the party seeking discovery must demonstrate both a “compelling need for access to [such] information” and “that there is no other less-intrusive means of obtaining the needed information.”  Williams v. Sup. Ct. (2017) 3 Cal.5th 531, 557; see also John B. v. Sup. Ct., supra, at 1199-1200.

 

            The Plaintiff has sufficiently established that the information sought involves, at least in part, an invasion of privacy.  Defendant has not supplied any information to meet the burden of showing a compelling need or no less intrusive means.  Therefore, the Motion to Quash is granted. 

 

            Plaintiff’s counsel shall submit a written order to the Court that is consistent with this tentative ruling and in compliance with Rule of Court, rule 3.1312.

 

 

7.         SCV-259838, Leiphart v. Progressive Direct Insurance Company

 

            DROPPED from calendar at the request of counsel for moving party.

 

 

8.         SCV-260066, Fields v. Zieve, Brodnax & Steele, LLP

 

            This case is on calendar for Defendants’ demurrer to Plaintiff’s Second Amended Complaint.  Notwithstanding the fact that Defendants filed a proof of service on August 4, 2017 indicating that the demurrer and all supporting papers were timely served, Plaintiff has filed a “Notice of Defendant’s Failure to Serve Demurrer” and states that she only received the documents on September 22, 2017 when Defendants’ counsel emailed her a courtesy copy.  Although these statements were not made in a declaration under penalty of perjury, the Court will grant Plaintiff’s request to continue the hearing on Defendants’ demurrer to give her sufficient time to file an opposition. 

 

            Accordingly, the hearing on Defendants’ demurrer is CONTINUED to Wednesday, October 25, 2017, at 3:00 p.m. in Courtroom 19.  Plaintiff’s opposition and Defendants’ reply shall be filed and served in accordance with the statutory deadlines.  (See, Code Civ. Proc. § 1005(b)-(c).)       

 

 

 

 

 

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