Jun 23, 2017

TENTATIVE RULINGS

LAW & MOTION CALENDAR

Wednesday, June 21, 2017, 3:00 p.m.

Courtroom 19 – 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, June 20, 2017.  Parties in small claims cases and motions for claims of exemption are exempt from this requirement.

 

 

 

 

1.         MCV-185250, Pacific Credit Exchange v. Causey

 

            APPEARANCE REQUIRED.  The types and degrees of property exempt from levy are described in Code of Civil Procedure sections 704.010-704.210.  The debtor is directed to bring documentation supporting her claims of exemption.

 

 

2.         MCV-185543, Unifund CCR Partners v. Puckett

 

            APPEARANCE REQUIRED.  The types and degrees of property exempt from levy are described in Code of Civil Procedure sections 704.010-704.210.  The debtor is directed to bring documentation supporting his claims of exemption.

 

 

3.         SCV-254320, Alden v. Alden

 

            Defendants’ motion is DENIED on both procedural and substantive grounds.  Plaintiffs’ request for attorneys’ fees is GRANTED in the amount of $3,750.  Plaintiffs’ request for sanctions is DENIED.

 

 

4.         SCV-255831, Landry v. Davenport

 

            Diane M. Landry (“Plaintiff”) demurrers to the first, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, and twelfth affirmative defenses asserted in Patricia Davenport and Alvin Davenport’s (“Defendants”) First Amended Verified Answer (“FAVA”).  Plaintiff brings this demurrer pursuant to Code of Civil Procedure section 430.20(a) and on the grounds that the FAVA fails to state facts sufficient to support the affirmative defenses.  Defendants oppose the demurrer and argue that the FAVA states sufficient facts to put Plaintiff on notice of the defenses alleged and sufficiently states the ultimate facts needed to sustain each affirmative defense. 

 

            Plaintiff’s demurrer is SUSTAINED, WITH LEAVE TO AMEND.

 

            Although an answer has the same pleading requirements as a complaint, in that a defendant need only allege “ultimate facts” rather than “evidentiary” matter of “legal conclusions,” the answer must state facts “as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint.”  (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384.)  “A party against whom an answer has been filed may object, by demurrer as provided in Section 430.30, to the answer upon any one or more of the following grounds: (a) The answer does not state facts sufficient to constitute a defense[;] (b) The answer is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible[;] (c) Where the answer pleads a contract, it cannot be ascertained from the answer whether the contract is written or oral.”  (Code Civ. Proc. § 430.20(a)-(c).) 

 

            “In the case of a demurrer to the answer…the defect in question need not appear on the face of the answer.”  (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 733–734.)  “The determination of the sufficiency of the answer requires an examination of the complaint because its adequacy is with reference to the complaint it purports to answer.”  (Ibid, citing Chadbourn, Grossman, Van Alstyne, Cal. Pleading, § 1334, pp. 490, 491; see also, Miller & Lux, Inc., v. San Joaquin Light & Power Corp. (1932) 120 Cal.App. 589, 600.)  “This requirement, however, does not mean that the allegations of the complaint, if denied, are to be taken as true, the rule being that the demurrer to the answer admits all issuable facts pleaded therein and eliminates all allegations of the complaint denied by the answer.”  (Ibid, citing Miller & Lux, Inc., supra, 120 Cal.App. at 600.) 

 

            In this case, the Court agrees with Plaintiff that Defendants’ FAVA fails to state sufficient facts to support its first, third through tenth, and twelfth affirmative defenses.  Accordingly, the demurrer is sustained, with leave to amend.  Defendants shall file a Second Amended Answer not later than June 30, 2017.

 

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

 

 

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

 

            This case is on calendar for Scott Peterson, M.D.’s (“Defendant”) motion for summary judgment as to Plaintiff’s claim for medical negligence.  Defendant brings this motion pursuant to Code of Civil Procedure section 437c and on the grounds that Plaintiff cannot establish one or more elements of a cause of action for medical negligence.  Specifically, Defendant contends that, based on the declarations of his expert witnesses, Neal L. Benowitz, M.D. and Benny Gavi, M.D., Plaintiff cannot establish that Defendant’s conduct fell below the standard of care or that Defendant’s actions were the legal cause of the underlying injury to Plaintiff.  Plaintiff opposes the motion and submits the declaration of his own expert witness, Steven Fugaro, M.D.

 

            Defendant’s Objections to Evidence 1-3; 5 (incorrectly numbered as “4”) and 6 (incorrectly numbered as “5”) are SUSTAINED.  Objection to Evidence 4 is OVERRULED.  Defendant’s motion for summary judgment is GRANTED.  Based on the declarations of his expert witnesses, Defendant has clearly met his burden and has made a prima facie showing that one or more elements of Plaintiff’s claim for medical negligence cannot be proven.  Conversely, Plaintiff has failed to meet his burden of proof and has failed to demonstrate there is a disputed issue of material fact.  Although Plaintiff’s expert declarations may establish a triable issue of fact with respect to the element of causation, the evidence does not demonstrate that there is a triable issue of material fact with respect to whether Defendant’s conduct breached the applicable standard of care.  In fact, Plaintiff’s expert’s declaration conspicuously fails to address the standard of care issue altogether.  Additionally, the Court agrees with Defendant that many of the statements in Dr. Fugaro’s declaration in opposition to the motion are conclusory and are not supported by any factual basis, explanation or reasoning.  (See, Nardizzi v. Harbor Chrysler Plymouth Sales, Inc. (2006) 136 Cal.App.4th 1409, 1415; see also, Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 1108, 1116-1117.)  Accordingly, the motion is GRANTED.

 

            1.         General Rules of Summary Judgment  

 

            The purpose of summary judgment and summary adjudication is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)  A motion for summary judgment shall be granted only if “all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.  (Code Civ. Proc. § 437c(c).)  “The phrase ‘as a matter of law’ is another way of saying that the evidence available to the parties, and placed before the court in support of and in opposition to the motion, raises no material issue that a trier of fact could resolve in favor of the party opposing the motion.”  (Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 756.)

 

            A defendant moving for summary judgment or summary adjudication must demonstrate that the plaintiff’s cause of action has no merit by showing either that (1) one or more elements of the cause of action cannot be established, or (2) there is a complete defense to that cause of action.  (Code Civ. Proc. § 437c(p)(2).)  The moving defendant can make this prima facie showing either by presenting evidence that conclusively negates an element of a plaintiff’s cause of action or by presenting evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.  (Aguilar, supra, 25 Cal.4th at 854-855.)  Either showing must be supported by evidence, such as affidavits, declarations, admissions, interrogatory answers, depositions, and matters of which judicial notice may be taken.  (Code Civ. Proc. § 437c(p)(2).)  If the moving party makes this prima facie showing, the burden shifts to the plaintiff to show of the existence of a triable issue of material fact.  (Aguilar, supra, 25 Cal.4th at 849-850.)  A triable issue of material fact exists if the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. (Id. at 850.)  The plaintiff “may not rely upon the mere allegations or denials’ of his pleadings to show that a triable issue of material fact exists but, instead, must set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.”  (Code Civ. Proc. § 437c(p)(2); see also, Aguilar, supra, 25 Cal.4th at 849.)  In ruling on the motion, the trial court must draw all reasonable inferences from the evidence in the light most favorable to the opposing party.  (Id. at 843, 860.) 

 

            2.         Medical Malpractice Actions

 

            “The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.”  (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305; see also, Hanson v. Grode (1999) 76 Cal.App.4th 601, 607.)  “Because the standard of care in a medical malpractice case is a matter ‘peculiarly within the knowledge of experts’, expert testimony is required to ‘prove or disprove that the defendant performed in accordance with the standard prevailing of care’ unless the negligence is obvious to a layperson.”  (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.)  Similarly, “[c]ausation must be proven within a reasonable medical probability based upon competent expert testimony.”  (Dumas v. Cooney (1991) 235 Cal.App.3d 1593, 1603; Hanson, supra, 76 Cal.App.4th at 607.)  To establish proximate causation, “[t]he evidence must be sufficient to allow the jury to infer that in the absence of the defendant’s negligence, there was a reasonable medical probability the plaintiff would have obtained a better result.”  (Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 216.)

 

            “California courts have incorporated the expert evidence requirement into their standard for summary judgment in medical malpractice cases” so “[w]hen a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.”  (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984–985.)  A plaintiff opposing a motion for summary judgment on a medical malpractice claim must present competent expert testimony that the defendant’s delivery of medical services fell below the standard of care and the breach of the duty of care proximately caused the injury.  (Rutherford v. Owens–Illinois, Inc. (1997) 16 Cal.4th 953, 957–958; see also, Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467 [“In a medical malpractice case based on breach of the standard of care, expert testimony is generally required to establish both the standard of care and the defendant's breach thereof.”].)  “Plaintiff also must show that defendants’ breach of the standard of care was the cause, within a reasonable medical probability, of his injury.”  (Ibid.)  However, although expert declarations submitted in opposition to motions for summary judgment are liberally construed, the opining expert must have sufficient skill or experience so that his or her opinion would be likely to assist the jury in the search for the truth.  (Garrett v. Homedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 189; see also, Powell v. Kleinman (2007) 151 Cal.App.4th 112, 125-126; Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1319.)

 

            In this case, Defendant’s motion for summary judgment is based on the testimony of two expert witnesses, Dr. Benny Gavi and Dr. Neal Benowitz.  In his declaration in support of the motion, Dr. Gavi Testified as follows:

 

            ● Based upon my education, training, experience, and review of the materials listed above, Dr. Peterson at all times exercised the level of skill, knowledge, and care in the diagnosis and treatment of decedent that other reasonably careful internal medicine specialists would possess and use in similar circumstances.  (Gavi Dec. at ¶ 5.)

 

            ● Dr. Peterson’s admitting history and physical examination of decedent on June 27, 2013 was thorough and detailed.  Dr. Peterson timely and appropriately responded to the nurse’s requests for orders on June 26 and 27.  Dr. Peterson’s plan to admit decedent with physical therapy and occupational therapy, continuing Megace therapy for improved diet, and pain medication as needed was appropriate.  (Gavi Dec. at ¶ 6.)

 

            ● Decedent’s condition was appropriate for admission to Emeritus Senior Living (“Emeritus”).  Decedent did not require hospitalization.  Decedent was discharged to Emeritus from Santa Rosa Memorial Hospital (“SRMH”) in stable condition.  Decedent’s discharging physician at SRMH, John Hurwitz, D.O., determined that it was appropriate to discharge decedent to a skilled nursing facility (“SNF”).  At the time of Dr. Peterson’s examination of decedent, decedent’s vital signs were normal and his physical exam did not reveal anything that would necessitate admission to a hospital.  Decedent did not have shortness of breath, fever, chills, or chest pain.  He was alert, cooperative, and nontoxic.  Additionally, his lung exam was completely clear, indicating that his pneumonia was resolving.  (Gavi Dec. at ¶ 7.)

 

            ● Dr. Peterson’s authorization for administration of Ativan 0.5 mg by mouth every six hours as needed complied with standard of care.  It was a low, conservative dose which decedent reported taking and tolerating at home in the past.  Treating decedent’s agitation, sleeplessness, and discomfort weighed in favor of giving the Ativan, particularly given that the small dose was previously tolerated at home and was going to be administered in a healthcare setting in which decedent was monitored.  (Gavi Dec. at ¶ 8.)

 

            ● The standard of care did not require decedent receive deep suctioning or otherwise be transferred to a facility that performs it.  Dr. Peterson’s history and physical examination did not elicit findings suggesting the need for deep suctioning.  Decedent was not coughing.  He did not have copious secretions and his lungs were clear to auscultation, demonstrating the absence of mucus in his airway.  (Gavi Dec. at ¶ 9.)

 

            ● Based upon my education, training, experience, and review of the materials listed above, no act or omission by Dr. Peterson was the cause, or a substantial factor in causing, decedent’s death.  Based upon my education, training, experience, and review of the materials listed above, no act or omission by Dr. Peterson was the cause, or a substantial factor in causing, injury to decedent.  (Gavi Dec. at ¶ 10.)

 

            ● The peak effect of oral Ativan occurs within one hour of ingestion and, therefore, any major depressive respiratory effect would manifest within that time period.  Based on plaintiff Jonathan Kennedy’s deposition, decedent was awake and talking during the peak effect of Ativan.  Furthermore, decedent was administered an Acetaminophen tablet at 3:26 a.m., demonstrating that decedent was alert and responsive enough to ingest a pill well after the peak period of Ativan.  Accordingly, Ativan was not the cause, or a substantial factor in causing, decedent’s death.  Moreover, Ativan was not the cause, or a substantial factor in causing, injury to decedent.  (Gavi Dec. at ¶11.)

 

            Additionally, Dr. Benowitz testified as follows:

 

            ● The administration of Ativan was not the cause, or a substantial factor, in causing injury to decedent or in decedent’s death.  (Benowitz Dec. at ¶ 5.)

 

            ● A low and conservative 0.5 mg dose of oral Ativan was given to decedent around 11:47 p.m. on June 27.  The peak effect of oral Ativan occurs within one hour of ingestion and, therefore, any major depressive respiratory effect would be greatest within that time period.  (Benowitz Dec. at ¶6.)  Because decedent was awake and talking during the peak effect of the Ativan and was sufficiently alert and responsive enough to be administered acetaminophen at 3:26 a.m., Dr. Benowitz concludes that “it is my opinion that Ativan did not oversedate decedent, cause respiratory failure, injure decedent, or cause his death around 8:00 a.m., which was more than 8 hours after the dosing of Ativan.”  (Benowitz Dec. at ¶ 6.)

 

            Clearly, based on this expert testimony, Defendant has met his burden and has made a prima facie showing that Plaintiff cannot establish one or more elements of a cause of action for medical malpractice, primarily that Defendant’s conduct constituted a breach of the standard of care owed to Plaintiff or that there was a proximate causal connection between any such alleged breach and the injury to Plaintiff.  Accordingly, the burden of proof thus shifted to Plaintiff to demonstrate, through expert testimony, that there is a triable issue of material fact.

 

            In his opposition to the motion, Plaintiff submits the declaration of Dr. Steven Fugaro to present evidence of Defendant’s negligence.  Specifically, Dr. Fugaro testifies in his declaration as follows:

 

            ● Mr. Kennedy required care that the staff at Emeritus Skilled Nursing Facility were not trained to provide for him; upon admission to Emeritus SNF on 6/26/13 he required tracheal suctioning based upon the assessment of Dr. Hurwitz, who had just cared for him and discharged him from at Santa Rosa Memorial Hospital.  Emeritus SNF nurse Rogina Calindao O’Donnell, who transferred Dr. Hurwitz's discharge orders onto the Emeritus doctor’s order sheets, was clear in her deposition testimony that the staff of Emeritus were not trained to perform deep tracheal suctioning and they could not admit patients with this need.  Nonetheless, Dr. Peterson, the associate medical director of Emeritus at the time, chose to admit Mr. Kennedy to Emeritus despite the known and documented risks, that he was required by the standard of care to be aware of.  This included the admission order from Dr. Hurwitz to do deep tracheal suctioning as needed.  (Fugaro Dec. at ¶ 5(a).)

 

            ● Mr. Kennedy’s recent past medical history upon admission to Emeritus on 6/26/13 included, within the last week, an episode of well documented acute respiratory failure (on 6/21/13) due to the combination of a narcotic overdose at Creekside Rehabilitation Center and the added effect of Ativan given in the Emergency room at Santa Rosa Memorial Hospital.  Ativan will affect each person’s body differently.  The body’s reaction to Ativan is affected by age, pre-existing diseases and cancer.  The body’s ability to excrete the Ativan determines how long and what level of drug remains in the brain cells as well as circulating in the body.  This excretion is different based on age, general health and kidney and liver function.  Clearly by his recent history Mr. Kennedy was not able to tolerate Ativan and its use resulted in him becoming “unarousable” while an inpatient at Santa Rosa Memorial Hospital.  (Fugaro Dec. at ¶5(b).)

 

            ● Mr. Kennedy nonetheless was ordered to have Ativan by Dr. Peterson at Emeritus, which Mr. Kennedy received at 11:47 PM on 6/27/2013 for a second time.  He had a Duoneb treatment at 03:29 A.M. as well as administration of Acetaminophen 325 mg 2 tablets.  He was also receiving oral narcotics in the form of Vicodin (hydrocodone) 5/500 every four hours as needed.  The last administration documented in the Emeritus eMAR (electronic medicine administration record) records for Hydrocodone was at 11:05 A.M. on 6/27/13.  However, according to a nursing note on 6/27/13 at 15:36 there appears to be an additional administration of Norco given for 3/10 pain per pt. request despite this not being documented on the eMAR.  This may well have resulted in cumulative effects of narcotics on this patient.  There is minimal documentation of nursing notes from Emeritus.  Mr. Kennedy died at some point in time after 05:10 AM and before 0819 AM on 6/27/13. Mr. Kennedy died between 5 hours and 23 minutes to 8 hours and 32 minutes after he was administered Ativan.  (Ibid.)

 

            ● This is not to say he could not under any circumstances have been given Ativan.  It is to say with a diagnosis of respiratory compromise, a severely weakened condition, copious secretions which required deep tracheal suctioning, a recent choking episode, recent respiratory failure secondary to IV Ativan and a sensitivity to all narcotics and sedatives which depress the central nervous system, the further administration of sedatives and performing of deep suctioning required a higher level of care and a monitored bed.  The addition of Ativan with its recently proven proclivity to make Mr. Kennedy comatose was contraindicated and more likely than not a substantial contributing factor to Mr. Kennedy‘s respiratory depression and unfortunate demise.  (Ibid.)

 

             The staff, over which Dr. Peterson has significant authority and responsibility as the associate medical director, failed to initiate immediate cardiopulmonary resuscitation when Mr. Kennedy was found unresponsive.  His POLST which he signed on 6/24/2013 required the staff to initiate immediate CPR.  The delay which resulted from going to his chart to check his POLST/code status, then calling his son, calling 911, calling a second RN and getting the MD on the phone would more likely than not have caused brain death if Mr. Kennedy was not already dead.  (Fugaro Dec. at ¶ 5(c).)

 

            Although Dr. Fugaro’s declaration appears to establish a triable issue of material fact with respect to the element of causation, it is conspicuously silent on the element of breach.  In fact, nowhere in Dr. Fugaro’s declaration does he state that Defendant’s administration of a 0.5 mg oral dose of oral Ativan to Plaintiff fell below the standard of care under the circumstances of the present case.  The fact that administration of Ativan may have been “contraindicated” based on Plaintiff’s recent reaction at Santa Rosa Memorial Hospital does not make Defendant’s decision to administer the .05 mg dose of Ativan orally several days later and under completely different circumstances necessarily below the applicable standard of care.  (See, Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467 [“Both the standard of care and defendants’ breach must normally be established by expert testimony in a medical malpractice case.”].)  Accordingly, Plaintiff has failed to meet his burden and has failed to demonstrate that there is a triable issue of material fact as to whether Defendant’s conduct fell below the applicable standard of care.  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. 

 

6.         SCV-256943, Bordessa v. Sonoma County Agricultural Preservation & Open Space District

 

            Defendant Sonoma County Agricultural Preservation and Open Space District (the “District”) moves to compel Plaintiffs Alfred Bordessa and Joseph Bordessa, as Successor Trustees of the Bruno Bordessa and Dorothy Bordessa Revocable Intervivos Trust (“Plaintiffs”) to provide further verified responses to Defendant’s request for production of documents, set two, and to produce responsive documents.  Defendant also requests sanctions against Plaintiffs and their attorney of record in the amount of $1,270.  Plaintiffs oppose the motion and request sanctions against Defendant and its attorney of record in the amount of $3,500. 

 

            Plaintiffs’ Request for Judicial Notice in Opposition to the Motion is GRANTED.  The District’s motion to compel production of documents is GRANTED in part and DENIED in part.  The parties’ respective requests for sanctions are both DENIED.

 

            The District’s motion to compel a further response to Request No. 16 is DENIED.  (See, Alch v. Superior Court (2008) 165 Cal.App.4th 1412, 1425–1426, citing Britt v. Superior Court (1978) 20 Cal.3d 844, 848, 859; see also, Save Open Space Santa Monica Mountains v. Superior Court (2000) 84 Cal.App.4th 235, 252 [the right of associational privacy is not absolute, but party seeking discovery of private matters “must do more than satisfy the relevancy standard”; the party is required to demonstrate a compelling need for the discovery, and the “compelling need must be so strong as to outweigh the privacy right when these two compelling interests are carefully balanced.”].)  Here, the District’s request implicates Plaintiffs’ (and their family members’) right to associational privacy.  Therefore, the District must demonstrate a “compelling need” for the documents that outweighs the related privacy rights and must explain how the documents are “directly relevant” to this action.  The District has done neither.  Although the District makes this request with the expectation that no such documents exist and apparently believes that a lack of documents is relevant to prove Plaintiffs’ “motive,” this does not establish relevance and does not constitute a “compelling need” for the requested documents. 

 

            The District’s motion to compel a further response to Request No. 18 is now moot and the documents have been produced.

 

            The District’s motion to compel further responses to Requests Nos. 19 and 20 is GRANTED.  The District has shown that the requested documents are sufficiently relevant to this case to establish the good cause necessary for an order compelling a further response.  Conversely, Plaintiffs have not sufficiently justified their objections or demonstrated that all the requested documents have previously been produced.  Therefore, the District’s motion to compel further responses to these requests is GRANTED.  To the extent responsive documents exist that have not already been produced, Plaintiffs are ordered to serve an amended response and produce those documents to the District.  If Plaintiffs wish to assert objections to production of specific documents and/or information, Plaintiffs shall provide the District with a privilege log, detailing the documents withheld; the specific claim of privilege or privacy protection asserted; and sufficient additional information for the parties and the Court to determine if the privilege or protection is justified.  If no such responsive documents exist, Plaintiffs shall serve a supplemental response, in compliance with the code, stating as much.

 

            The District’s motion to compel a further response to Request No. 21 is also GRANTED.  Although Plaintiffs may have a valid objection to the production of loan or financing documents, to the extent they include personal financial information of the trustees or their family, Plaintiffs have failed to demonstrate that those objections are applicable here.  If Plaintiffs wish to assert objections to production of specific documents and/or information, Plaintiffs shall provide the District with a privilege log, detailing the documents withheld; the specific claim of privilege or privacy protection asserted; and sufficient additional information for the parties and the Court to determine if the privilege or protection is justified.

 

            With respect to parties’ dueling requests for sanctions, although it is apparent that neither party is approaching these discovery issues with “substantial justification,” the Court declines to award sanctions to either party.      

 

            The District’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-258303, Solheim v. Badboy Branding, LLC

 

            This case is on calendar for Defendants Badboy Branding, LLC, Emmett Jay Leopardi, and Danielle Bynum’s (collectively “Defendants”) demurrer to Plaintiff Brenda Solheim’s (“Plaintiff”) complaint.  The Court notes that the motion was served on April 14, 2017 to Plaintiff’s prior attorney, Peyman Roshan, who substituted out of the case on or about April 20, 2017.  Based on the fact that Plaintiff has not filed an opposition to the demurrer and the comments made by Ms. Sterling in court, it appears that Mr. Roshan may not have forwarded the demurrer papers to Plaintiff’s new counsel, Terry Sterling.  Accordingly, unless the parties can demonstrate that the demurrer was forwarded to Plaintiff’s new counsel, the Court is inclined to continue the hearing on the demurrer to Wed., July 26, 2017 at 3:00 p.m. in Department 19 to provide Plaintiff’s new counsel an opportunity to file an opposition.  Plaintiff’s opposition and any reply shall be filed and served pursuant the deadlines set out in the code and based on the new hearing date. 

 

            Additionally, the parties are ordered to meet and confer in good faith pursuant to Code of Civil Procedure section 430.41 and attempt to resolve the issues addressed in the demurrer.  Defendants’ shall file a Declaration Re: Meet and Confer no later than July 14, 2017 detailing the parties' meet and confer efforts and informing the Court if any issues have been resolved.  

 

 

8.         SCV-259621, Paley v. Owens

 

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

 

 

9.         SCV-260146, Bundy v. Hobbs

 

            CONTINUED to Wed., Aug. 26, 2017, 3:00 p.m. pursuant to stipulation and order filed June 12.

 

 

10.       SCV-260703, Howard v. Shiomoto

 

            CONTINUED to Wed., Aug. 2, 2017, 3:00 p.m. pursuant to order filed May 26.

 

 

© 2017 Superior Court of Sonoma County