Mar 29, 2017



Wednesday, March 29, 2017, 3:00 P.M.

Courtroom 13 – Honorable Bradford DeMeo

600 Administration Drive, Santa Rosa, CA


CourtCall is available for all Law and Motion appearances, EXCEPT parties in small claims cases and motions for claims of exemption which are mandatory appearances.  CourtCall can be reached 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) 521-6563 by 4:00 p.m. today, Tuesday, March 28, 2017.  Any party requesting an appearance must notify all other opposing parties of their intent to appear.  Parties in small claims cases and motions for claims of exemption are exempt from this requirement.


MCV-196844  Ford Motor Credit v. Angotti

            Appearances required. 

SCV-250234  Malcolm O. McCoy v. April McCoy

A court must expunge a lis pendens where the plaintiff fails to establish the probable validity of his claim(s).  Defendant has shown that there is no possibility Plaintiff (now deceased) will prevail on the validity of his real property claim.  Defendant has held legal title to the property located at 8924 Poplar Avenue, Cotati, CA (“The Property”) since 2007. She has paid the mortgage, taxes, and insurance.  The Plaintiff’s complaint alleges conflicting theories regarding his transfer of The Property to her, including fraud, mistake, undue influence, intoxication, mental incapacity and fraudulent conveyance.  None of Plaintiff’s theories is supported by the evidence necessary to invalidate a deed, valid on its face. To the contrary, the facts and evidence resoundingly support the validity of the deed, and April’s long-term reliance.          

            In addition, the circumstances warrant the award of attorney’s fees here.

            Defendant April McCoy is Entitled to Recover her Attorney’s Fees

In connection with the expected motion to expunge the lis pendens, CCP §405.38 provides that the court shall award April her reasonable attorney’s fees and costs in making this motion, “unless the court finds that the other party acted with substantial justification or that other circumstances make the imposition of attorney’s fees and costs unjust.

In the present situation, Malcolm did not act with substantial justification in recording the lis pendens. Malcolm requested the grant deed and requested assistance with coordinating having it signed and notarized in jail. April was not present when the grant deed was executed, so she could not have exercised undue influence to gain leverage.

SCV-256704  David B. Heisenger v. St. Joseph Health, Santa Rosa Memorial Hospital, et al

            This case comes on hearing for defendants St. Joseph Health’s (SJH) and Santa Rosa Memorial Hospital’s (SRMH) demurrer to the Second Amended Complaint and the 2nd Cause of Action for Fraud and motion to strike Page 3, paragraph 14(a)(2), for  “punitive damages.”

            Procedurally, the Court notes that Plaintiff’s Opposition brief is not a substantive opposition to the issues raised in the demurrer/motion to strike. Plaintiffs do not even address Defendant’s Motion to Strike. Plaintiff’s opposition appears to be little more than a  request seeking leave to file another  amended complaint. However, it appears unlikely that Plaintiff can cure the defects in his complaint by allowing him another opportunity to amend.

            Defendants’ demurrer to the second cause of action for fraud is sustained without leave to amend for failure to state facts sufficient to constitute a cause of action (CCP §430.10(e)). Plaintiff fails to plead the alleged fraud with particularity. 

            Motion to Strike

            Defendants SJH & SRMH move to strike Plaintiff’s claim for punitive damages at Page 3, paragraph 14(a)(2), punitive damages for fraud.  The grounds for the motion are that Plaintiff has failed to plead facts sufficient to support a claim for punitive damages. The motion to strike the punitive damage claim should be granted without leave to amend.             

            Moving party shall prepare a proposed order consistent with this ruling.

SCV-256892  Christina Sweeney v. David Plagge and Millie Plagge

The motion to strike the prayer for damages in plaintiff’s first, second and third causes of action of plaintiff’s First Amended Complaint is granted, with prejudice. Plaintiff has not and cannot demonstrate any basis to allege either a statute or contract containing a basis for attorney’s fees.

Pursuant to CCP §436, a motion to strike lies to either: (a) strike out any irrelevant, false or improper matter inserted in a pleadings; or (b) strike out all or any part of any pleading not drawn or filed in conformity with the laws of this states, a court rule, or an order of the court.

Factual allegations in a pleading must be accepted as true for purposes of a demurrer or motion to strike.  They may be stricken if grounds to strike appear on the face of the pleading under attack or from matter which the court may judicially notice.  CCP §437(a).

            Defendants move the Court for an Order striking certain portions of plaintiff’s First Amended Complaint (“FAC”) as follows:

1.     Paragraph 1 of the prayer to the first cause of action, appearing on page 8, lines 27 through 28;

2.     Paragraph 3 of the prayer to the first cause of action, appearing on page 9, at lines 2  through 3;

3.     Paragraph 4 of the prayer to the second cause of action, appearing on page 9, line 12; and

4.     Paragraph 4 of the prayer to the third cause of action, appearing on page 9, line 21.

            Code of Civil Procedure §1021 provides that, except as attorney’s fees are provided by statute, “the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties…” Section 1033.5(a)(10) of the Code of Civil Procedure, provides that attorney’s fees are recoverable as costs when authorized by a contract, statute or law. Civil Code §3496 allows for the recovery of attorney’s fees in certain enumerated cases wherein a governmental agency seeks to enjoin specific, enumerated activity.

            Although paragraph 1 of the prayer to the first cause of action seeks recovery: “For Judgment in a sum to be determined at trial but not less than $100,000.00 in contract damages, with interest at the legal rate (10% per annum) from September 14, 2014, until Judgment,” there is no contract between plaintiff and the moving defendants mentioned anywhere in the First Amended Complaint.   Plaintiff’s fourth cause of action for breach of contract in their First Amended Complaint names defendants Farmers Specialty Company and Foremost Insurance Co.  (See FAC, page 5, lines 26-27.)

            As such, no contract damages, including attorney’s fees may be recovered against the instant defendants.

SCV-259708   Jonathan Michael Cook v. Hyundai Motor America, et al.

This matter comes on calendar for Defendant Hyundai Motor America’s  CCP §435/436 Motion to Strike the following portions in Plaintiff’s 1st Amended Complaint for an alleged violation of the Song-Beverly Consumer Warranty Act: paragraph 11; paragraph 12, lns 20-22; paragraph 13, lns 27-28; paragraph 14, lns 3-4; paragraph 15, lns 8-9; paragraph 16, lns 13-14; paragraphs 17-24; paragraph 29; paragraph 33, lns 4-5; paragraph 34, lns 6-7.

The targeted language pertains to language regarding breach of implied warranty claims and allegations of tolling the statute of limitations or estopping its enforcement.  The grounds for the motion are that the language is not drawn in conformity with the laws of this state and are improper and do not apply to the instant matter.  CCP §436(a) & (b).  Specifically, defendant argues the identified language should be stricken because the statute of limitations has expired on the alleged breach of implied warranty claims and plaintiff’s equitable tolling and equitable estoppel allegations are improper in this instance because plaintiff has failed to plead, and cannot plead, the necessary elements to support either doctrine.  Defendant further argues that language pertaining to the claim for breach of implied warranty of fitness should be stricken on the additional ground that plaintiff fails to allege he purchased the vehicle for any “particular purposes” above and beyond the vehicle’s ordinary purpose.   

         The motion is granted without leave to amend for the following reasons:

         According to the complaint, the alleged “breach” of the implied warranties occurred on August 8, 2010 when defendant delivered to plaintiff a vehicle with serious defects and nonconformities to warranty.  The Court finds that, pursuant to Cal.Comm. Code §2725, the breach of implied warranty cause of action “accrued” on the date of breach, not the date of discovery.  Plaintiff’s reliance on Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297 and Cal.Comm.Code §2725(2) for his argument that the Cause of Action “accrued” upon the date of discovery (October 24, 2013) is misplaced.  The Mexia case simply held that Song-Beverly Act’s statutory language creating a limited, prospective duration for the implied warranty of merchantability does not create a one year deadline for discovering latent defects or for giving notice to the seller.  The Mexia Court had no occasion to determine whether a “discovery rule” applies to the statute of limitations in breach of implied warranty claims; nor did the Mexia Court have any occasion to determine when the plaintiff’s claim in Mexia actually accrued.  Mexia’s language that a plaintiff may discover a latent defect more than one year after delivery of the product was simply made in the context of Mexia’s rejection of the argument that the statutory language of the Song-Beverly Act required plaintiff to discover and report latent defects to the seller within one year.  Notably, the Mexia Court stated that in the case of a latent defect, the “breach” by the existence of the unseen defect, not by its subsequent discovery.  Mexia does not support plaintiff’s claim that the implied warranty claim accrued on the date of discovery.  Similarly, the delayed discovery provision in Cal.Comm.C. §2725(2) does not support plaintiff’s claim that the Cause of Action accrued upon discovery either.  The delayed discovery provision set forth in Cal.Comm.C. §2725(2) only applies to warranties that explicitly extend to future performance of goods.  An implied warranty does not explicitly say anything, and therefore implied warranties cannot extend to future performance (Cardinal Health v. Tyco Electronics Corp. (2008) 169 Cal.App.4th 116, 134; Travelers Indem. Co. v. Dammann & Co., Inc. (D.J.J. 2008) 592 F.Sup.2d 752, 765).  Therefore, the provision has no application to implied warranty claims.  Thus, the breach of implied warranty claims accrued on August 8, 2010.  This action, commenced on October 28, 2016, is time barred by the four-year statute of limitations unless some other theory tolls the statute of limitations or estops defendant from raising the defense.

The Court finds plaintiff’s equitable tolling and equitable estoppel claims inapplicable to the facts of this case, as alleged in the complaint.  In appropriate circumstances, equity will toll the statute of limitations while a plaintiff who has several legal remedies for the same harm pursues one of those remedies.  Aguilera v. Heiman (2009) 174 Cal.App.4th 590.  Equitable tolling requires that three essential elements be satisfied by the party seeking the tolling: (1) timely notice to the defendant in filing the first claim; (2) lack of prejudice to defendant in gathering evidence to defendant against the second claim; and (3) good faith and reasonable conduct by the plaintiff in filing the second claim.  Aguilera at 598.

The equitable tolling allegations do not apply because plaintiff’s acts of bringing the vehicle into the dealership for repairs cannot be viewed as a first “claim” or “claims” for purposes of the equitable tolling allegations.  Additionally, assuming arguendo that the act of bringing the vehicle in for repairs could constitute a “first claim,” the complaint fails to allege how those acts put defendant on notice of the current legal claim for breach of an implied warranty of merchantability and/or fitness, and further fails to allege facts showing plaintiff acted diligently in filing the current action some three years after October 24, 2013 (the date plaintiff realized the breach).

The equitable estoppel allegations are similarly improper.  If there is still ample time to institute the action within the statutory period after the circumstances inducing the delay have ceased to operate, the plaintiff who failed to do so cannot claim estoppel.  Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 656.  Plaintiff had nearly a year to file the action within the statute of limitations after defendant’s alleged misconduct ceased.  Additionally plaintiff fails to allege that any of the dealership’s statements were intended to dissuade plaintiff from filing this action.

 Finally, plaintiff’s allegations regarding the alleged breach of implied warranty of fitness is improper for the additional ground that plaintiff fails to allege the vehicle was purchased for a “particular” purpose above and beyond the ordinary purpose of a vehicle. 

The motion to strike is granted without leave to amend. 

Moving party shall prepare a proposed order consistent with this ruling.



© 2017 Superior Court of Sonoma County