Jan 21, 2018



Friday, January 19, 2018, 2:00 p.m.

Courtroom 19 – Hon. Allan D. Hardcastle

3055 Cleveland Avenue, Santa Rosa



CourtCall is available for all Law & Motion appearances, EXCEPT 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, Thursday, January 18, 2018.  Parties in motions for claims of exemption are exempt from this requirement.


PLEASE NOTE:  The Court no longer provides Court Reporters for this calendar.  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-242494, LVNV Funding, LLC v. Gorringe


            LVNV Funding, LLC (“Plaintiff”) brings this motion to have the truth of all matters stated in its request for admissions, set one, to Jacinta Gorringe (“Defendant”) deemed admitted.  Plaintiff brings this motion pursuant to Code of Civil Procedure section 2033.280 and on the grounds that Plaintiff served Defendant with requests for admissions, set one, on October 3, 2017 and Defendant has failed to provide any response.  Defendant has not opposed the motion. 


            Code of Civil Procedure section 2033.280 provides that if a party to whom requests for admission are directed fails to serve a timely response, that party “waives any objection to the requests” and “[t]he requesting party may move for an order that…the truth of any matters specified in the requests be deemed admitted.”  (Code Civ. Proc. § 2033.280(a)-(b).)  The court must grant this relief unless it finds that the party to whom the requests have been directed has served, before the hearing on the motion, a proposed response that is in “substantial compliance” with the Code.  (Code Civ. Proc. § 2033.280(c).)  “[T]he burden is on the propounding party to file a motion under [section 2033.280, subdivision (b)] to have requests deemed admitted.”  (Appleton v. Superior Court (1998) 206 Cal.App.3d 632, 635.)


            Plaintiff has met its burden and has sufficiently demonstrated that it properly served a set of requests for admissions to Defendant on October 3, 2017 by U.S. Mail.  (Brodbeck Dec. at ¶3, Ex. 1.)  Plaintiff has also demonstrated that Defendant has failed to serve responses to the subject requests for admissions and has failed to request additional time to respond.  (Id. at ¶¶ 4-5.)  Accordingly, Plaintiff’s motion is GRANTED and the truth of all matters stated in Plaintiff’s request for admissions, set one, are deemed ADMITTED.


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



2.         SCV-259605, County of Sonoma v. Cannon


            CONTINUED to Wed., Jan. 31, 2018, 3:00 p.m., Courtroom 16, unless the moving attorney demonstrates that service address is current residence or business, or that address is last known residence or business address of the client and the attorney has been unable to locate a more current address.  The moving party must show that it verified the address on which it has served the client.  It must remedy that before the court can grant this motion.  If that is provided, the motion is granted.  The discovery motion remains on calendar.



3.         SCV-259815, Gabriel v. Carnahan


            Motion to dismiss is DENIED.


            Defendants’ request for judicial notice of the notice of application filed with the Workers’ Compensation Appeals Board is GRANTED.


            Plaintiff’s request for judicial notice of Defendants’ answer in this action is GRANTED.


            Plaintiff’s evidentiary objections to the declaration of defendants’ counsel, Jennifer Kung Gelini, are SUSTAINED.


            Plaintiff’s request for sanctions is DENIED.


            This is a personal injury action.  Plaintiff alleges he was hired by Defendants to trim a tree on their property and that he suffered an injury while performing the work.


            Defendants move to dismiss this action on the ground that Plaintiff’s remedy is limited to a recently filed workers’ compensation claim.  Long after this action was filed, but shortly before filing this motion, Defendants unilaterally filed a workers’ compensation claim on Plaintiff’s behalf.  Defendants contend that it was not until depositions were taken in June 2017 that “facts were finally learned regarding the course and scope of the work being performed and whether same fell within the workers compensation realm and its exclusive remedy.”  (Moving P&As, 4:2-3.)  Unfortunately, the declaration of defense counsel is not particularly helpful.  It is full of conclusions about employment terms and conditions but devoid of actual facts or excerpts from deposition transcripts.  (In particular see paragraphs 3, 4 and 5 of the declaration of Jennifer A. Kung Gelini.)


            In opposition, Plaintiff challenges Defendants’ right to dismissal on numerous grounds and maintains that he may sue in tort because defendants have waived their right to assert workers’ compensation as his exclusive remedy.


            “An employee injured through the negligence of his employer cannot ordinarily sue in tort. If plaintiff was an employee and was injured…in the course of his employment, he may have a swift and simple remedy before the Workers' Compensation Appeals Board. The parties cannot waive this remedy and confer jurisdiction on the civil courts by stipulation or estoppel.” (Rowland v. County of Sonoma (1990) 220 Cal.App.3d 331, 333.)


            Key among Plaintiff’s arguments is that Defendants have waived the affirmative defense of workers’ compensation exclusivity by failing to allege that defense in their Answer.  It is true that “the defendant must raise the exclusive workers' compensation remedy as an affirmative defense or waive the protection of the statute.  (Doney v. Tambouratgis (1979) 23 Cal.3d 91, 98-99 [151 Cal.Rptr. 347, 587 P.2d 1160]; Popejoy v. Hannon (1951) 37 Cal.2d 159, 173-174 [231 P.2d 484]; see also Gillespie v. Rawlings (1957) 49 Cal.2d 359, 361, fn. 1 [317 P.2d 601].)” (Rowland v. County of Sonoma, supra, 220 Cal.App.3d 331, 334.) 


            However, “[a]n exception to the duty to affirmatively plead a workers' compensation defense exists if the complaint directly or indirectly alleges facts indicating an employment relationship.” (Rowland v. County of Sonoma, supra, 220 Cal.App.3d 331, 335.) 


            Here, Plaintiff’s complaint alleges:


On or about October 27, 2015, MAURICIO GONZALEZ GABRIEL sustained injuries while on the property located at or near 8843 Oakfield Lane, Windsor, CA is owned by defendants Joshua Carnahan and Danielle Naretto.


Plaintiff MAURICIO GONZALEZ GABRIEL fell from a ladder while trimming a tree on defendants property. Defendant Joshua Carnahan hired MAURICIO GONZALEZ GABRIEL to trim the tree and provided all equipment and tools. Defendants failed to provide appropriate safety equipment and supervision to prevent MAURICIO GONZALEZ GABRIEL from being injured. As a result of Defendants’ negligence, MAURICIO GONZALEZ GABRIEL suffered severe injuries causing economic and non-economic damages. (Underlining added.)


            The above allegations in the complaint clearly indicate an employment relationship.


            Additionally, according to the Rowland Court, “[a]nother exception should apply when postpleading motions indicate that the conditions of compensation might exist. (Doney, supra, 23 Cal.3d at p. 98, fn. 9.)  Indeed, it is rare that a lack of subject matter jurisdiction will be disclosed by plaintiff's complaint.  Evidence disclosed from declarations, admissions, or deposition testimony in support of or in reply to a motion for summary judgment may be stronger than bare pleadings in the complaint to notify the parties and the court of the possible exclusive remedy of workers' compensation.” (Rowland v. County of Sonoma, supra, 220 Cal.App.3d 331, 335.)


            Consequently, Defendants’ failure to affirmatively allege workers’ compensation exclusivity as an affirmative defense is not fatal to this motion.


            But the threshold question remains: Does this court have subject matter jurisdiction over Plaintiff’s claim?  As stated in Rowland: “If the complaint or the record otherwise demonstrates an employment relationship, and if the jurisdiction of the Workers' Compensation Appeals Board is truly exclusive, then the trial court's jurisdiction is limited to a determination of the jurisdictional issue.” (Rowland v. County of Sonoma, supra, 220 Cal.App.3d 331, 335.)


            The court finds Defendants have failed to affirmatively demonstrate that this action is exclusively within the jurisdiction of the Workers’ Compensation Appeals Board.  That determination involves a jurisdictional factual and legal analysis which Defendants have failed to adequately provide in their motion to dismiss.  On this record, the court cannot decide whether the WCAB has exclusive jurisdiction. 


            Accordingly, the motion is denied.


            As opined in Rowland: “Although lack of subject matter jurisdiction can be attacked at any time, counsel for the parties have the duty to raise this fundamental objection at an early time. This saves the unnecessary expense of a trial and its preparation; it promotes judicial economy and determines at the beginning of the process whether a matter properly belongs in the civil court; it also reduces the cost of possible writ review or an appeal. Early determination is also respectful of the legislative policy dictated by the Labor Code and the Code of Civil Procedure.”  (Rowland v. County of Sonoma, supra, 220 Cal.App.3d 331, 335–336.)  Unfortunately, here, this issue was not brought to the court’s attention until mere weeks before the January 26, 2018 trial date.  Therefore, summary judgment/adjudication is no longer an option and Defendants will have to prove this affirmative defense at trial.


            Plaintiff shall submit an order consistent with this ruling.


4.         SCV-261123, P.A. Brokers, LLC v. RAC Associates, LLC


            CONTINUED to Wed., Jan. 24, 2018, 3:00 p.m., Courtroom 19, at the request of Plaintiff’s counsel.


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