Sep 17, 2014

LAW & MOTION TENTATIVE RULINGS

TUESDAY, SEPTEMBER 16, 2014 - 8:30 a.m.

COURTROOM 19 – Judge Arthur A. Wick

3055 Cleveland Avenue, Santa Rosa, CA  95403

 

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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, SEPTEMBER 15, 2014.  Any party requesting an appearance must notify all other parties of their intent to appear.

1.  SCV-247137 Capri Creek v. Etter & Sons:

            This is on calendar for Defendant/Cross-Complainant Etter & Sons’ (Etter) demurrer to the 4th Amendment to the Second Amended Complaint, and for Cross-Defendant Haligan Plastering’s  (Haligan) demurrer to the Fourth Cause of Action of Cross-Complainant Karl Kardel’s First Amended Cross-Complaint.

Haligan Demurrer

Haligan contends that the Fourth Cause of Action for Express Indemnity to the Kardel Cross-Complaint is defective in that it fails to include the alleged contract as an Exhibit. Further, Haligan contends that even if the Exhibit was attached, there is no evidence that Haligan executed the agreement at issue. (Citing Otworth v. Southern Pac. Transportation Co. (1985)166 Cal.App.3d 452.) The demurrer has not drawn opposition.

Haligan’s demurrer is not well-taken. Otworth instructs that: “If the action is based on an alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference.” (Id. at 459.) The Cross-Complaint sets out the terms of the express indemnity verbatim. (See Cross-Complaint ¶ 17.) As for Haligan’s contention that the agreement was never executed, this too is not well-taken on demurrer. A hearing on demurrer may not be turned into a contested evidentiary hearing. (See Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 605.) Whether Haligan executed the agreement is not a question that can be answered on demurrer.

Accordingly, the demurrer is overruled. Kardel is to draft an order consistent with this ruling.

Etter Demurrer

Etter has demurred to Plaintiff Capri Creek’s cause of action for fraudulent concealment. Etter contends that the subject cause of action is barred by the statute of limitations, is not plead with the requisite specificity, fails to allege a confidential relationship, and fails to establish through allegation a duty to disclose.  Etter requests judicial notice, which is granted.

Capri Creek opposes, arguing that the complaint adequately alleges fraudulent concealment against Etter. Capri Creek contends that the allegations clearly allege that it may rely on the delayed discovery rule. Further, Capri Creek further argues that the complaint alleges sufficient facts to establish that Etter had a duty to disclose the use of OSB board as sheathing, instead of plywood.

Here, Capri Creek’s allegations are sufficient to support the fraudulent concealment cause of action, and the delayed discovery. The operative complaint alleges that the Plaintiff did not discover the issues related to the substation of the OSB board until much later—despite its diligence. Capri Creek’s allegation, like any plaintiff, must be given a liberal interpretation. Etter’s contentions would basically turn the demurrer into an evidentiary hearing. The allegations contend that the nature of the OSB’s orientation, and its effect on the construction was unknown until after filing the instant lawsuit—these facts must be taken as true. Further, the operative complaint does properly allege that Etter had a duty to disclose. While Etter seems to disagree with the allegations, again, that disagreement is not grounds for sustaining the instant demurrer. The allegations contained in the operative complaint satisfy the elements found in Barnhouse v. City of Pinole (1982) 133 Cal.App.3d 17, 190.

Accordingly, Etter’s demurrer is overruled.  Capri shall draft an order consistent with this ruling.

 

2.  MSC-183812 Williams v. Bloedau:

            The parties are to appear.

           

3.  SCV-248629 Cameron v. Vintage Greens:

            Cross-Defendants/Defendants Pacific Coast Bldg. Products Inc. dba Alcal Insulation, Morris Heating, and Sacramento A-1Door dba A-1 Door and Building Solutions move for an orders determining that their respective settlements are in good faith for purposes of CCP § 877 and 877.6. The motions are unopposed.

Since the motions are uncontested the settlors’ moving papers need only “set[ ] forth the ground of good faith accompanied by a declaration which sets forth a brief background of the case.” (City of Grand Terrace v. Superior Court (1987) 192 Cal. App. 3d 1251, 1261.) The moving parties have met their respective burdens.  Accordingly, the motions are granted. The moving parties are to draft orders consistent with this ruling.

 

4.  SCV-251043 Bank of New York v. Fields:

            The motion to Compel Deposition of Kelly Shipley was withdrawn by the moving party.

            This is on calendar for Defendant/Cross-Complainant Janice Fields’ motion for sanctions with respect to Defendant Bank of New York’s (BONY) alleged non-compliance with a previous court order compelling the production of certain documents responsive to discovery served by Fields.

Fields contends that BONY has failed to provide adequate responses and verifications to her request for production of documents no. 20 (RPD #20).  RPD #20 was the subject of an earlier court ruling compelling BONY to provide a further response. BONY opposes, arguing, in essence, that it has fully complied with this court’s order.

On March 4, 2014, this court ordered BONY to: “[S]upply defendant and this court with an affirmative representation as to whether all documents requested in RPD #20 have not been produced by plaintiff. Said supplemental verified response is due on or before March 12, 2014.”  On March 11, 2014, BONY filed with this court a supplemental response that indicated that it has produced all documents requested in RPD #20.

Fields takes issue with the supplemental response on several points. She argues that the person who verified the response is not authorized to verify the response as to BONY—but rather was verified by the “servicer.” Further Fields argues that the response to RPD #20 was inadequate because it failed to include a document that evidences the Plaintiff’s receipt of the subject loan.  Fields seeks evidentiary sanctions.

Fields’ motion for sanctions is not well-taken. BONY complied with the March 4, 2014 order. Fields’ contention that the verification is faulty is without merit. The representative has testified to her qualification to sign the verification. Further, BONY has provided evidence that BANA has given authorization to those persons who signed the verifications. Further, it is clear that BONY has provided an affirmative statement of compliance—which the court accepts. Fields’ further contention that BONY’s production of the Loan Schedule to the Trust should be excluded because it was not produced in response to RPD #20 is likewise not well-taken. That document, as explained by BONY, was produced in response to the PMK notice—not RPD #20.

Accordingly, Fields’ motion and request for sanctions is denied in its entirety. BONY shall draft an order consistent with this ruling.

 

5.  SCV-254254 MLCFC 2007-7 Complex v. Bicentennial:

            The Receiver’s unopposed motion to Approve Final Report and Account, Discharge, Exonerate Bondsman and approve compensation is granted. If the Plaintiff wishes to dismiss the action following the granting of the motion, than it is free to do so.

The Receiver is to draft an order consistent with this ruling.

 

6.  SCV-255897 Smith v. Building by Design:

            The Petitioner has satisfied the requirements of CC § 8480 et seq., and is therefore entitled to the requested relief and attorney fees per CC § 8488(c).  Accordingly, the Petition will be granted.

Petitioner is to submit a proposed order that is in accordance with this ruling.

 

7.  MSC-184035 Lobato v. Shlegeris:

            Judgment on Plaintiff’s Claim was entered in favor of Plaintiff for $7,823.90, plus costs of $150.  Defendant did not appear at trial.  Defendant was served with the Judgment on June 20, 2014.  Thereafter on July 1, 2014, Defendant filed a Motion to Vacate (Cancel) Judgment.  Said filing was timely.

            In Defendant’s Motion, the lone reason for the request is stated as follows: “Out of town.  Defendant’s claim not served yet.”

            Defendant provided no other facts to support the request.  The stated reason is insufficient to set aside the judgment as a matter of law.

            Accordingly, Defendant’s Motion is denied in its entirety.

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