Oct 26, 2016


WEDNESDAY, OCTOBER 26, 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, OCTOBER 25, 2016.  Any party requesting an appearance must notify all other parties of their intent to appear.

1.      SCV-252044 Mukherji v. Patel:

This case is on calendar for two post-trial motions.  First, plaintiff Joy Mukherji (“Plaintiff”) moves for an award of prejudgment interest from defendant Nitin Patel (“Defendant”) following their June 17, 2016 trial.  Second, Plaintiff’s attorneys, Spencer P. Scheer and Michael D. Imfeld move to be relieved as counsel.  Both motions are unopposed.

Plaintiff’s motion for prejudgment interest is DENIED.  Plaintiff initially made a request for prejudgment interest in her Post-Trial Brief filed July 8, 2016.  On July 14, 2016, the Court issued its Decision After Court Trial and denied Plaintiff’s request for interest, stating “[n]o prejudgment interest is awarded.”  (See, Decision after Court Trial, 2:7.)  Again, in the Judgment After Court Trial, the Court affirmed that “[n]o prejudgment interest is awarded.”  (See, Judgment After Court Trial, 2:7.)  Accordingly, the Court has already considered and ruled on the issue of prejudgment interest and therefore, Plaintiff’s motion is DENIED.

Plaintiff’s counsels’ unopposed motion to be relieved as counsel is GRANTED.

Plaintiff’s counsel shall submit a written order consistent with this tentative and in compliance with California Rule of Court 3.1312   


2.      SCV-253801 Hurley v. Comcast:
            This case is on calendar for two motions.  First, Kerry Hurley, an individual, on behalf of herself and all persons similarly situated (“Plaintiff”) moves for Final Approval of Class Settlement with Comcast of California/Colorado/Texas/Washington, Inc. (“Defendant”).  Second, Plaintiff moves for Award of Attorneys’ Fees, Costs and Service Award.  Both motions are unopposed. 

            Plaintiff’s motions are GRANTED.  Unless there is a request for oral argument to contest this tentative ruling, the Court will execute the Proposed Final Approval Order submitted with the motions.


3.      SCV-254094 Skaff v. Rio Nido Roadhouse:

The Motion to Quash has been dropped by the moving party (non-party Jere V. Starks) as the moving party has represented that defendants have withdrawn the trial subpoena regarding Mr. Starks and therefore the motion to quash is moot.


4.     SCV-257318 Fernandez v. Sonoma Valley:

This case is on calendar for defendant Sonoma Valley Community Health Center’s (“Defendant”) unopposed Motion for Summary Judgment of plaintiff Gary J. Fernandez’s (“Plaintiff”) Complaint for Medical Malpractice.  Defendant seeks summary judgment on the grounds that the uncontroverted declaration of Steven Fugaro, M.D. establishes that at all times, Defendant met the applicable standards of care in its treatment of Plaintiff and therefore, Defendant is entitled to judgment as a matter of law.  Because Plaintiff not opposed the motion, the court can accept as true the facts submitted by Defendant, so long as they are properly in evidence before the court.  (See, Lyons v. Security Pacific Nat. Bank (1995) 40 Cal.App.4th 1001, 1014; see also, Melorich Builders, Inc. v. Superior Court (1984) 160 Cal.App.3d 931, 935 [If the moving party’s declarations are not controverted, the court must accept them as true for summary judgment purposes]; Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1084-1087 [A court may grant a defendant’s unopposed motion for summary judgment so long as the defendant’s evidence overcomes the burden established in the Code of Civil Procedure section 437c, subdivision (o)(2).].) 

Here, Defendant has met its initial burden of proof and has made a prima facie showing that one or more elements of the cause of action cannot be established.  (See, Code Civ. Proc., § 437c(p)(2); see also, Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.)  Therefore, the burden shifted to Plaintiff to show the existence of a triable issue of material fact.  (See, Code Civ. Proc., §437c(o)(2).)  Because Plaintiff has not opposed the motion, Plaintiff has failed to meet that burden and therefore, Defendant’s Motion for Summary Judgment is GRANTED. 

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


5.     SCV-257451 Paynter v. Tellier:

This case is on calendar for Jamie Tellier’s (“Defendant”) motion for a protective order to stay his deposition.  Based on the fact that Defendant has already appeared for his deposition, this motion is MOOT. 


6.     SCV-258303 Solheim v. Badboy:

This case is on calendar for two motions.  First, defendants Juliana Gaita; Victoria Ann Gonzalez; Joshua Mark Liszt; Liszt & Associates, P.A.; and Gaita & Liszt, P.L. (collectively “Defendants”) move to amend the Court’s March 30, 2016 Order which granted Defendants’ motion to quash plaintiff Brenda Solheim’s (“Plaintiff”) service of summons.  Defendants seek to amend the Order to include a dismissal of Defendants from this action.  However, on October 13, 2016, Plaintiff filed a Request for Dismissal of Defendants and the Court entered the dismissal on the same date.  Accordingly, Defendants’ motion to amend is MOOT and apparently has been dropped by the moving party. 

Second, Defendants move for an order of monetary sanctions against Plaintiff and her counsel in the amount of $10,655.38, pursuant to Code of Civil Procedure section 128.5.  Section 128.5 states in relevant part that “[a] trial court may order a party, the party’s attorney, or both to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.”  (Code Civ. Proc. §128.5(a).)  The terms “actions” and “tactics” include, but are not limited to, “the making or opposing of motions or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading.”  (Code Civ. Proc. §128.5(b)(1).)  “Frivolous” is defined as “totally and completely without merit or for the sole purpose of harassing an opposing party.”  (Code Civ. Proc. §128.5(b)(2).)  “Harassing” conduct includes vexatious tactics which, although literally authorized by statute or rule, go beyond that which is appropriate under any reasonable standard.  (See, West Coast Develop. v. Reed (1992) 2 CA4th 693, 702.)

In determining whether a party’s “actions or tactics” are “frivolous” or “solely intended to cause unnecessary delay,” the Court uses the “objective” standard of whether “any reasonable attorney would agree that the action is totally and completely without merit.”  (San Diegans for Open Government v. City of San Diego (2016) 247 Cal.App.4th 1306, 1317-1318; see also, Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 12; Chitsazzadeh v. Kramer & Kaslow (2011) 199 Cal.App.4th 676, 683-684.)  The party’s “subjective” intent is immaterial to a motion under section 128.5.  (Id. at 1318-1319.)  “Although the objective standard of proof is easier to satisfy, the Legislature intended to ‘retain the extremely high proof required for such awards’ with its applicability lying with ‘truly egregious behaviors.’”  (Id. at 1318-1319, citing Senate Judiciary Com., Analysis of Assem. Bill No. 2494 (2013-2014 Reg. Sess.) as amended June 16, 2014, p.5.)         

In this close case, while Plaintiff’s action against Defendants may have been ill-advised, both substantively as well as procedurally, it does not appear that Plaintiff’s actions were so “egregious” such that “any reasonable attorney would agree the action is totally and completely without merit.”  Accordingly, Defendants’ motion for sanctions under section 128.5 is DENIED.

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


7.     SCV-258682 Villa v. Scott:

This case is on calendar for the City of Santa Rosa’s (“Defendant”) Demurrer to Julio Lemus Villa’s (“Plaintiff”) Complaint for damages.  Defendant brings this Demurrer pursuant to Code of Civil Procedure section 430.10(e) and on the ground that the Complaint fails to state facts sufficient to constitute a valid cause of action against Defendant. 

Defendant’s Request for Judicial Notice is GRANTED.  Defendant’s Demurrer to the Complaint is SUSTAINED, with leave to amend. Plaintiff to file amended Complaint not later than November 14, 2016.


8.     SCV-258752 Wienholz v. Taatjes:

            This matter comes on calendar for defendants’ motion to compel arbitration and stay or dismiss the action.

            Defendant’s evidentiary objection #18 to the Weinholz declaration is SUSTAINED for lack of personal knowledge.  All other evidentiary objections to the Weinholz and Strickland declarations are OVERRULED.

            The motion to compel arbitration is DENIED.

            As an initial matter, the Court will decide the threshold issues regarding the scope and enforceability of the arbitration agreement.  The parties did not clearly and unmistakably delegate these issues to the arbitrator.  As for the scope of the agreement, the Court finds that the broad language of the arbitration agreement covers all of plaintiff’s causes of action, including the assault and battery claims against Dr. Linzey.  The Court also finds that Dr. Taatjes signed the agreement in both his individual capacity and in his capacity as the owner of the business.  The Court further finds that Dr. Linzey, a non-signatory, has standing to request enforcement of the agreement under an equitable estoppel theory in light of the fact that all allegations by plaintiff, including the assault and battery allegations, are intertwined with the employment agreement.  The Court notes that plaintiff herself describes the assault and battery as workplace violence, alleges a statutory public policy against physical assault by an employer against an employee, alleges that Dr. Linzey was an employer and supervisor, and alleges that all defendants were agents of each other.

            Where public rights are at issue, an arbitration agreement must satisfy the minimum requirements set forth in Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83 and also pass the general conscionability test.  The Court will decline to enforce an arbitration agreement if either of these tests is not met, unless the Court believes that severance of illegal provisions is appropriate.  As an initial matter, the Court rejects defendants’ argument (made for the first time in their reply brief and in contradiction to their original arguments) that the AAA Employment Arbitration Rules apply.  The footnote on page 10 of the Commercial Arbitration Rules does not demonstrate that the Employment Arbitration rules apply in this case.  The Court finds that the agreement adopted the AAA Commercial Arbitration Rules.  The Court further finds that defendants, by arguing the Armendariz factors are satisfied, have conceded that all of plaintiff’s claims pertain to public, not private, rights.

            Although the arbitration agreement appears to satisfy the general principles of conscionability in light of the fact that the agreement was mutual and required both parties to submit all disputes arising out of plaintiff’s employment to arbitration, the Court finds that the agreement fails to meet three of the five heightened Armendariz requirements and therefore violates public policy.  Specifically, the agreement does not provide for adequate discovery, does not guarantee plaintiff a written “reasoned” award, and imposes forum costs on plaintiff that far exceed those that would be required in court.  Additionally, the agreement exposes plaintiff to a greater risk of having to pay defendants’ attorneys’ fees than would be required in court. 

            The Court does not believe that severance (or accepting any of defendants’ stipulations) is appropriate in this case.  The multiple violations of Armendariz demonstrate that the agreement is permeated by an unlawful purpose.  Additionally, the Court does not believe that it could sever any of the deficiencies without rewriting the agreement and/or the AAA Commercial Arbitration Rules, or without issuing detailed court orders requiring the Court’s continued entanglement to enforce such orders.

            The motion to compel arbitration and stay/dismiss the case is DENIED.

Plaintiff shall prepare an order consistent with this decision.


© 2016 Superior Court of Sonoma County