Oct 01, 2022
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TENTATIVE RULINGS                 
LAW & MOTION CALENDAR                   
Wednesday, September 28, 2022, 3:00 p.m.
Courtroom 16 – Hon. Patrick M. Broderick
3035 Cleveland Avenue, Suite 200, Santa Rosa
 
PLEASE NOTE: Per order of the court, any party or representative of a party must appear remotely through Zoom for this calendar, unless you request in person appearance by 4:00 p.m. the day before the hearing.

 
   
TO JOIN “ZOOM” ONLINE,
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Meeting ID: 824-7526-7360                                                                                                            
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By Phone (same meeting ID and password as listed above):
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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, YOU MUST notify the Court by telephone at (707) 521-6729, and all other opposing parties of your intent to appear by 4:00 p.m. today, Tuesday, September 27, 2022. Parties in motions for claims of exemption are exempt from this requirement.
 
PLEASE NOTE: The Court’s Official Court Reporters are “not available” within the meaning of California Rules of Court, Rule 2.956, for court reporting of civil cases.
 

 

     1&2.  SCV-267587, Felker v JRK Residential Group, Inc  
 
This matter is on calendar for the demurrer of Plaintiffs Sharon Felker, Herman Grishaver, Edgar Cruz Soriano, and Jeanace Zetino (“Plaintiffs”) to the second through thirtieth affirmative defenses set forth in the amended answer of Defendants JRK Residential Group, Inc. (“JRK Residential”) and JRK Property Holdings, Inc. (“JRK Holdings,” together “JRK” or “Defendants”).
            This matter is also on calendar for the motion of JRK for sanctions pursuant to Code of Civil Procedure sections 128.5 and 128.7 in the amount of $50,000 for Plaintiffs’ allegedly meritless demurrer to JRK’s amended answer.
            In their First Amended Complaint (“FAC”), Plaintiffs allege that JRK Residential is a large residential property owner, manager, operator, and lessor, which owns 25,273 multifamily units in the United States and 12 apartment complexes in California. JRK Residential is a subsidiary of JRK Holdings. Plaintiffs allege that JRK have used common form leases which are contracts of adhesion; and that Defendants have charged their tenants unlawful rent increases, charges, and fees. Plaintiffs allege that in 2017 massive wildfires destroyed thousands of homes and a state of emergency was declared in several California counties, including Los Angeles, Sonoma, and Ventura. As a result, Penal Code section 396 prohibited increasing the rental price advertised, offered, or charged for housing to an existing or prospective tenant by more than 10 percent. Plaintiffs allege that section 396 has applied to rental housing since at least January 2017. Despite this, and also in violation of the Tenant Protection Act of 2019, Defendants increased rents more than 10%, plus additional allegations. Plaintiffs’ causes of action are on behalf of themselves and five putative plaintiff classes: (1) the Price Gouging Class; (2) Rent Cap Class; (3) Month to Month Rent Increase Class; (4) Renter’s Liability Insurance Fine Class; and (5) Late Charge Class. Plaintiffs assert causes of action against Defendants for unfair competition under Business & Professions Code § 17200 (“UCL”); violation of the Civil Code §§1750 et seq. (Consumers Legal Remedies Act or “CLRA”); and for unlawful liquidated damages under Civil Code §1671. 
On June 3, 2022, JRK filed its amended answer. The amended answer contains a general denial and lists thirty affirmative defenses.[1] The second through the thirtieth affirmative defenses are for: Failure to Join Indispensable Parties; Due Process; Standing; Arbitration/Class Action Waiver; Compliance with Law; Validity; Estoppel; Unclean Hands; Laches; Waiver; Voluntary Payment; Contributory Negligence/Partial Fault of Plaintiffs; Failure to Mitigate/Doctrine of Avoidable Consequences; Consent; Privilege; Justification; Not “Unfair” Under Section 17200; Not “Deceptive” Under Section 17200; Not “Unlawful” Under Section 17200; No Unjust Enrichment/No Restitution; No Class Action; Res Judicata/Collateral Estoppel; No Damages; Offset; Superseding Cause; Fault of Third Parties; Ratification; Reasonableness and Good Faith of Defendant; and, No Liability for Agent Acting on Behalf of Principal.
1.      Demurrer to Amended Answer
Plaintiffs bring this demurrer pursuant to Code Civ. Proc. §§ 430.20(a) and (b) and 431.30(g) on the grounds that twenty-nine affirmative defenses fail to allege sufficient facts or are uncertain.
CCP section 430.20(a) and (b) provide: “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.” CCP section 430.30(a) provides: “When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading.”
CCP section 431.30 governs answers. Subsection (g) provides: “The defenses shall be separately stated, and the several defenses shall refer to the causes of action which they are intended to answer, in a manner by which they may be intelligibly distinguished.”
Plaintiffs demur to the second through thirtieth affirmative defenses as they fail to identify which causes of action they are intended to answer. Plaintiffs demur to the nineth, tenth, sixteenth, seventeenth, and twenty-third affirmative defenses on the grounds that they fail to state facts sufficient to constitute a defense.
a.       Identifying which causes of action each affirmative defense is intended to answer
Plaintiffs cite Grappo v. McMills (2017) 11 Ca1.App.5th 996, 1014, for their position that a complaint that fails to identify the defendant(s) against whom the cause of action [or affirmative defense] is being asserted is subject to a special demurrer for uncertainty.
In Grappo, in discussing the role of courts in entering default judgments, the appellate court noted that a default judgment should not have been entered in that case, in part, because “the complaint does not comply with the California Rules of Court. For example, California Rules of Court, rule 2.112 provides that each cause of action should be headed so as to identify briefly the nature of the claim asserted; and if there is more than one, it should identify the defendant or defendants against whom the cause of action is being asserted. As the leading practical treatise advises, failure to comply with rule 2.112 presumably renders a complaint subject to a motion to strike (Code of Civ. Proc., § 436), or a special demurrer for uncertainty.” (Grappo, supra, at 1014.)
Here, JRK does not dispute that their answer does not identify which causes of action each affirmative defense is intended to answer. However, they argue that demurrers for uncertainty are disfavored; that “uncertain” means both ambiguous and unintelligible; that Plaintiffs can figure out what is meant by JRK’s affirmative defenses through discovery; and that CCP section 431.30(g) is not a ground for demurrer.
JRK cites Hagely v. Hagely (1886) 68 Cal. 348, 349, which cited then Code of Civil Procedure section 444 for the proposition that failing to separate two defenses alleged together is not one of the causes for which a demurrer to an answer may be interposed. “[S]uch a defect can only be reached by motion to strike out or by some other appropriate proceeding.” (Ibid.)
The Court agrees that Plaintiffs should have brought a motion to strike pursuant to CCP section 436(b). That section allows the Court at any time in its discretion to “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”
JRK does not disagree that CCP section 431.30(g) requires them to refer to the causes of action which each affirmative defense is intended to answer. Rather, it objects on the above noted grounds indicating that this motion is pointless and a waste of judicial resources. However, as noted in FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 376, if Plaintiffs do not object to the form of the pleading, they have waived said objection, which may lead to further procedural issues.
JRK’s answer plainly does not comply with CCP section 431.30(g). Thus, it is subject to a motion to strike. This Court may, at any time, strike out all or any part of any pleading not drawn in conformity with the laws of this state. Accordingly, JRK’s second through thirtieth affirmative answers are hereby stricken as failing to comply with the rules of this state; specifically, Code of Civil Procedure section 431.30(g).
b.      Failure to State Facts Sufficient to Constitute a Defense
In addition, Plaintiffs demur to the nineth, tenth, sixteenth, seventeenth, and twenty-third causes of action on the grounds that they fail to state facts sufficient to constitute a defense. While this demurrer is technically moot as a result of the Court’s striking out these affirmative defenses on other grounds, the Court notes had it not previously stricken these causes of action based upon failure to comply with CCP section 431.30(g) it would have sustained the demurrer to these causes of action as each of them assert bare legal conclusions.
c.       Conclusion and Order
The Court hereby strikes out JRK’s second through thirtieth affirmative defenses. JRK is given leave to amend. Any amended answer shall be filed within 10 days of this Court’s order.
 
2.      Motion for Sanctions
JRK moves pursuant to Civil Code sections 128.5 and 128.7 for sanctions against Plaintiffs and their counsel in the amount of $50,000. This motion is based upon Plaintiffs’ alleged “frivolous” demurrer, which JRK alleges was brought in bad faith and is “pure gamesmanship.” As should be clear from the above ruling, the Court disagrees that Plaintiffs’ demurrer was totally and completely without merit. The motion is DENIED. Plaintiffs are awarded $3,200.00 in sanctions against JRK and their attorneys of record.
In their opposition, Plaintiffs request sanctions in the amount of $25,000 for having to file opposition to the motion. The request is based upon Civil Code section 128.5(f)(1)(C) and section 128.7(c)(1). Civil Code section 128.5(f)(1)(C) provides: “If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney's fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.”
Section 128.7(c)(1) allows sanctions after notice and a reasonable opportunity to respond, if this Court determines that an attorney presented a paper for an improper purpose or was otherwise unwarranted. Section 128.7 is not applicable as it requires a notice of motion served pursuant to CCP section 1010.
JRK’s motion for sanctions has no merit as their answer clearly did not comply with pleading requirements and was thus subject to a motion to strike. Accordingly, sanctions for filing the frivolous motion are warranted. The Court finds that reasonable attorney fees and expenses are appropriate in the amount of $3,200 against defendants JRK and their counsel.
­­­­­­­­­            Plaintiffs’ counsel shall submit a written order to the court consistent with this ruling and in compliance with California Rules of Court, Rule 3.1312.
 
3.      SCV-269143, Sears v Roseland MHP, LLC   
 
This matter is on calendar for the motion of Defendant Roseland MHP, LLC for an order to compel the Plaintiff Laurie D. Sears aka Ashley Maserati to appear for her deposition. Defendant requests sanctions in the amount of $1,050.
            On September 22, 2022, the parties filed a stipulation to continue this hearing. The hearing on this motion is CONTINUED to November 9, 2022, at 3:30 p.m., in Department 16.
 
 
4&5.  SCV-269300, Garcia v RAC Acceptance East, LLC  
 
This matter is on calendar for the motions of defendants RAC Acceptance East, LLC (“RAC”) and Stoneledge Furniture, LLC (“Stoneledge”) for an order compelling Plaintiff Isabel Garcia (“Plaintiff”) to arbitrate the claims in this action and to stay this action pending completion of arbitration. 
1.      Motion by Defendant RAC
Defendant RAC has provided the declaration of Jared Dale, a Human Resources Information Systems Analyst III for RAC. (Dale decl., ¶1.) Due to his position with RAC, he has access to, and is familiar with, RAC’s business records, including personnel records. (Id., ¶¶2, 4.) Mr. Dale states that Plaintiff was hired by RAC as a Customer Service Representative on February 4, 2016. (Id., ¶5.) He states: “As part of Plaintiff’s onboarding process, Plaintiff reviewed and completed new hire documents using Taleo, RAC’s online onboarding platform. As part of the online onboarding, Plaintiff created a unique user ID and confidential password on Taleo. Plaintiff also executed an Electronic Signature Acknowledgment and Agreement. By signing this form, a new hire agrees that her electronic signature, in conjunction with a password that was used to gain access to the online onboarding system, would identify the record or transaction as the new hire’s.” (Ibid.)
Mr. Dale goes on to state: “During the onboarding process, RAC electronically presented Plaintiff with the standalone Mutual Agreement to Arbitrate Claims (the “Arbitration Agreement”). On February 4, 2016 (Plaintiff’s first day of work), Plaintiff clicked on the link to review the Arbitration Agreement and electronically signed and acknowledged the Agreement. RAC offered, and Plaintiff expressly accepted, the terms of the Arbitration Agreement. Plaintiff’s assent and acknowledgement of the Arbitration Agreement included an electronic signature block plainly bearing Plaintiff’s name (in addition to her name separately and clearly printed) next to the execution date of February 4, 2016.” (Id., ¶6.) “Upon completion of the new hire paperwork, Plaintiff exited out of Taleo. Once Plaintiff completed and logged out of the onboarding platform, neither she nor any other individuals can make any changes to the Arbitration Agreement acknowledgment, except by hand on the printed copy of those forms.” (Id., ¶7.) “All personnel documents - including completed Arbitration Agreements - are stored electronically and in a confidential and secure manner such that they are accessible only to management level employees or HRIS employees who have been granted access using their own unique login information.” (Id., ¶8.)
Exhibit 1 is the Electronic Signature Acknowledgment and Agreement. It supports Mr. Dales’ declaration and indicates that Plaintiff was given a Taleo Candidate Number, that she agreed to keep her Taleo password secret, and to use it to electronically sign documents. She signed that agreement as “Maria Garcia.” (Dale decl., Exhibit 1.)
Exhibit 2 is a five-page Mutual Agreement to Arbitrate Claims. The signature page contains a space for the “Applicant/Employee Signature,” which contains the typed name “Maria Isabel Izzy Garcia,” and a space for the “Applicant/Employee Name Printed,” which contains the typed name “Maria Garcia.” (Dale decl., Exhibit 2.) There is no indication from the face of the document that Taleo software was used to access the document or that the signature was signed electronically.
            In her declaration, Plaintiff states that she reviewed Exhibit 2 and does not recall having signed it. (Garcia decl., ¶6.) She also states she never received a paper copy. (Ibid.)
            RAC met its initial burden to show an agreement to arbitrate by attaching a copy of the agreement to its motion, which purportedly bears Plaintiff’s electronic signature. (See Fabian v. Renovate America, Inc. (2019) 42 Cal.App.5th 1062, 1067.) However, because Plaintiff declared that she did not remember signing the arbitration agreement, RAC has “the burden of proving by a preponderance of the evidence that the electronic signature was authentic.” (See ibid.)
            The party seeking authentication may carry its burden “in any manner,” including by presenting evidence of the contents of the contract in question and the circumstances surrounding the contract's execution. (Fabian, supra, at 1068.) In Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, the court found the moving party had not met its burden because it did not provide evidence establishing how, or on what basis, the declarant inferred that the electronic signature was “the act of” the plaintiff-employee; that the date and time printed on the agreement were accurate; that the electronic signature could only have been placed on the agreement by a person using the plaintiff-employee's unique identification number and password; and that the agreement was therefore signed by the plaintiff. (Ruiz, supra, at 844.)
            RAC argues that this case is more akin to Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047. In that case, the petition alleged that the plaintiff’s employment with defendants was governed by three documents: the employee physician contract, the dispute resolution procedure (DRP), and defendants’ rules and regulations (R&R). (Id., at 1051.) Defendants alleged these documents were provided to that plaintiff as part of his offer of employment. (Ibid.) In evaluating the issue, the Espejo Court examined the requirements for authenticating an electronic signature. An electronic signature has the same legal effect as a handwritten signature. (Espejo, supra, at 1061.) “Still, any writing must be authenticated” before it may be received in evidence. (Ibid. [citing case].) “Civil Code section 1633.9 addresses how a proponent of an electronic signature may authenticate the signature—that is, show the signature is, in fact, the signature of the person the proponent claims it is. The statute states: ‘(a) An electronic record or electronic signature is attributable to a person if it was the act of the person. The act of the person may be shown in any manner, including a showing of the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.’ (Civ.Code, § 1633.9, subd. (a), italics added.)” (Ibid.)
            In Ruiz, the defendant’s business manager summarily asserted that the plaintiff was the person who electronically signed the agreement; but, she did not explain how she arrived at that conclusion. (Ruiz, supra, at 843.) In her reply declaration, she stated that the agreement was part of an employee acknowledgment form that is presented to all defendant’s employees and each employee is required to log into the company's HR system, using his or her “unique login ID and password,” to review and sign the employee acknowledgment form. (Id., at 843-844.) This did not explain how, or upon what basis, she inferred that the electronic signature on the agreement was “the act of” the plaintiff.
            The declaration in Espejo “offered the critical factual connection that the declarations in Ruiz lacked. (Espejo, supra, at 1062.) In Espejo, the reply declaration detailed defendant’s security precautions regarding transmission and use of an applicant's unique username and password, as well as the steps an applicant would have to take to place his or her name on the signature line of the employment agreement and the DRP. (Ibid.) “Based on this procedure, she concluded that the ‘name Jay Baniaga Espejo could have only been placed on the signature pages of the employment agreement and the DRP by someone using Dr. Espejo's unique username and password.... [¶] Given this process for signing documents and protecting the privacy of the information with unique and private usernames and passwords, the electronic signature was made by Dr. Espejo on the employment agreement and the DRP at the date, time, and IP address listed on the documents.” Therefore, the Espejo court determined that these details satisfactorily meet the requirements articulated in Ruiz and established that the electronic signature on the DRP was “the act of” the plaintiff.
            Here, Mr. Dale’s declaration is more akin to that of the declarant in Ruiz. The moving party does not establish how its Human Resources Information Systems Analyst III could determine that it was the Plaintiff who typed her name on the signature lines of the arbitration agreement. It appears Mr. Dale was not a percipient witness and only reviewed the documents after the fact. He does not present sufficient details of the onboarding process and the documents Plaintiff must have signed in that process. He only concludes that she was presented with the arbitration agreement which she signed. He does not state how he knows that she must have signed it. In Espejo, it was because the plaintiff had to sign each document before moving onto the next. That plaintiff had to gain access to those documents using his unique username and password. Here, Mr. Dale only states that Plaintiff created a unique user ID and confidential password as part of the onboarding process. He then concludes that Plaintiff was electronically presented with the arbitration agreement. He notes that managers have access to the arbitration agreements. His declaration does not establish that that it is more likely than not that it was Plaintiff who put her name on the arbitration agreement. Moreover, the arbitration agreement in this case does not have the appearance of an electronically signed document as there is no date, time, and IP address listed on it. Nor does it have any indication that it was created within RAC’s Taleo system.
            The Court finds that RAC has not met its burden to authenticate the printed name on the arbitration agreement provided in support of this motion was “an act of” Plaintiff’s. 
            If the Court were to find an enforceable arbitration agreement, Plaintiff argues that she may elect to invalidate it pursuant to the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (“the Act”). Pursuant to the Act, “at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.” Plaintiff has not established that the Act is applicable here. Plaintiff alleges sexual battery and sexual harassment last occurred on October 2, 2020. Plaintiff’s “ongoing claim” is for retaliation, which she has not shown is covered by the Act. 
            Plaintiff also argues that the arbitration agreement is unconscionable. Both procedural and substantive unconscionability must be present before an arbitration provision is rendered unenforceable on unconscionability grounds, but they need not be present in the same degree. (De Leon v. Pinnacle Property Management Services, LLC (2021) 72 Cal.App.5th 476, 484 [citing cases].)
Procedural unconscionability may be proven by showing oppression, which is present when a party has no meaningful opportunity to negotiate terms or the contract is presented on a take-it-or-leave-it basis. (Ibid.)
“Substantive unconscionability exists when a term is so one-sided as to shock the conscience. In evaluating substantive unconscionability, courts often look to whether the arbitration agreement meets certain minimum levels of fairness. In Armendariz, our Supreme Court instructed that, at a minimum, a mandatory employment arbitration agreement must (1) provide for neutral arbitrators, (2) provide for more than minimal discovery, (3) require a written award that permits limited judicial review, (4) provide for all of the types of relief that would otherwise be available in court, and (5) require the employer to pay the arbitrator's fees and all costs unique to arbitration. [Citation.] ‘Elimination of or interference with any of these basic provisions makes an arbitration agreement substantively unconscionable.’ [Citation.]” (Ibid.)
In DeLeon, the agreement was procedurally unconscionable because it was a requirement of employment; i.e., it was a contract of adhesion. It was substantively unconscionable as it shortened the applicable statute of limitations to one year and only allowed limited discovery. Additional discovery could be done only on a showing of “substantial need.” These discovery restrictions favored the defendants because employment cases are factually complex and their outcomes are often determined by the testimony of multiple percipient witnesses as well as information about the disputed employment practice. (Id. at 487.)
RAC’s arbitration agreement only grants each party a right to one individual deposition. It states: “Each party shall have the right to take the deposition of one individual and any expert witnesses designated by another party. Each party also shall have the right to propound requests for production of documents to any party. The subpoena rights specified below shall be applicable to discovery pursuant to this Discovery provision. The Arbitrator shall have exclusive authority to consider and enter orders concerning any issue arising related to the quantity or conduct of discovery. Each party to this Agreement can petition and/or request that the Arbitrator allow additional discovery, and additional discovery may be conducted pursuant to the parties’ mutual stipulation or as ordered by the Arbitrator.” The agreement gives each party “the right to subpoena witnesses and documents for the arbitration, as well as documents relevant to the case from third parties.”
It appears that the arbitration agreement does not allow any interrogatories or any requests for admissions. While an arbitrator is allowed to grant the parties additional discovery, it is not clear if he or she is allowed to grant the right to take interrogatories or requests for admission.
For its part, Stoneledge misconstrues Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, which only stated that because the parties had incorporated the California Arbitration Act into their agreement, adequate discovery was available despite the language restricting it in the agreement.
While the arbitration agreement is potentially unconscionable, due to the number of issues presented in opposition, Plaintiff did not adequately address this issue. Regardless, due to RAC’s failure to establish an arbitration agreement between the parties, the Court need not make a determination on this issue.
For the reasons stated above, the motion is DENIED.
Plaintiff’s ­­­­­­­counsel shall submit a written order to the court consistent with this ruling and in compliance with California Rules of Court, Rule 3.1312.
2.      Motion by Stoneledge
Stoneledge’s motion is based upon the arbitration agreement Plaintiff allegedly signed with defendant RAC and the doctrine of equitable estoppel. However, as RAC did not meet its burden on its motion to compel arbitration, Stoneledge cannot rely on the doctrine of equitable estoppel to compel arbitration.
Stoneledge also argues that the arbitrator should determine whether an agreement to arbitrate exists. Under the FAA, state law governs formation of arbitration agreements. (Turtle Ridge Media Group, Inc. v. Pacific Bell Directory (2006) 140 Cal.App.4th 828, 832.) Once a viable arbitration agreement is found under state law, federal law governs its interpretation. (Ibid.) Here, because RAC has not established an enforceable contract to compel arbitration, there is no delegation clause for the Court to consider.
Stoneledge’s motion to compel arbitration is DENIED.
Plaintiff’s counsel shall submit a written order to the court consistent with this ruling and in compliance with California Rules of Court, Rule 3.1312.
 
6.      SCV-26708, Callahan v Thomas
 
This matter is on calendar for the motion of Plaintiffs Amanda Callahan, Gail Callahan, and DeWinton Callahan (“Plaintiffs”) for an order appointing Gail Callahan the successor trustee of the DeWinton Callahan and Gail Callahan Revocable Trust in place of DeWinton Callahan. The motion is DENIED as the civil division of the superior court does not have jurisdiction over this issue.
            Plaintiffs filed this action on November 19, 2021. The action against defendant Richard Allen Thomas is based upon alleged damage he did to a rental property, trespassing on Plaintiff’s property, and for allegedly forcibly taking a cashier’s check from real estate agent Keleigh Ento and cashing it.
            Plaintiffs move pursuant to CCP section 377.31, which provides: “On motion after the death of a person who commenced an action or proceeding, the court shall allow a pending action or proceeding that does not abate to be continued by the decedent's personal representative or, if none, by the decedent's successor in interest.”
            Here, Gail Callahan is already a plaintiff; therefore, there is no need to substitute Gail Callahan as DeWinton Callahan’s successor in interest in this action.
            Plaintiffs’ motion is substantively a request concerning the internal affairs of a trust. Probate Code section 17200 governs such petitions such as those to appoint a successor trustee. (See Probate Code section 17200(b)(10).) The probate division of the superior court has exclusive jurisdiction of proceedings concerning the internal affairs of the trust. (Prob Code §17000(a).) Accordingly, the civil division of the superior court does not have jurisdiction to determine this issue.
      The motion is DENIED. ­­­­­­­­­­Plaintiffs’ counsel shall submit a written order to the court consistent with this ruling.
7.       SCV-270705, SureTec Insurance Company v Heffelfinger  
This matter is on calendar for the motion of Plaintiff Suretec Insurance Company (“Plaintiff”) for an order directing that service of summons and complaint in this action be effected on Defendant Tammara Heffelfinger (“Defendant”) by publication in The Community Voice. The motion is DENIED.
            A summons may be served by publication if upon affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served in another manner specified in Code of Civil Procedure section 415.10 et seq.
            This action arises out of Probate Case SPR-87362 wherein Defendant was removed as the administrator of the estate. The successor administrator filed a petition surcharging Defendant. As Plaintiff faced liability based upon administrator’s bonds issued in that case, Plaintiff settled with the estate for $50,000. Plaintiff now seeks to collect that amount from Defendant based upon its indemnity agreement.
Plaintiff’s counsel, Rosa Martinez-Genzon, has filed a declaration in support of this motion. She states that Defendant provided Plaintiff with an address at 57 Loni Court, Windsor, CA 95492. (Martinez-Gezon decl. 3.) In connection with the probate matter, Plaintiff was provided with P.O. Box number 1275, Windsor, CA 95492, and given the email address theffwci@aol.com. (Ibid.)
On May 4, 2022, Plaintiff mailed and emailed its summons and complaint along with a notice and acknowledgment of receipt to Defendant’s P.O. Box and email. (Id., 4.) Plaintiff did not receive a response. (Ibid.)
On June 29, 2022, Plaintiff’s counsel searched for Defendant’s address using Westlaw. (Id., ¶5.) The Westlaw search listed three recent addresses: (1) 57 Loni Court, Windsor, CA 95492, (2) P.O. Box 1275, Windsor, CA 95492 and (3) 5300 Route 66, Needles, CA 92363. (Ibid.)
On June 30, 2022, Plaintiff attempted service at the Windsor and Needles addresses. (Id., ¶6.) Plaintiff attempted service at the Windsor address on July 1, 2, 3, and 5th. (Id., §8.) Plaintiff’s process server was told Defendant no longer resided at those addresses. (Id., ¶¶7, 8.)
An order for service by publication requires a showing of reasonable diligence in attempting to serve Defendant. The basic test is whether the declaration shows plaintiff took “those steps which a reasonable person who truly desired to give notice would have taken under the circumstances.” (Donel, Inc. v. Badalian (1978) 87 Cal. App. 3d 327, 333.) Plaintiff has not met that burden here. Plaintiff only attempted to find Defendant’s address through Westlaw. It has not indicated that it has pursued other available avenues; for example, asking Defendant’s relatives, who it should be aware of due to their involvement in the underlying probate case; that it asked Defendant’s former neighbors; that it determined that Defendant left no forwarding address; and/or that it made an attempt to find Defendant on social media sites.
Additionally, CCP section 415.50(b) requires the summons be published in a newspaper “that is most likely to give actual notice to the party to be served.” Here, Plaintiff has requested the Court order summons published in The Community Voice. According to their website, The Community Voice serves the communities of Rohnert Park, Cotati, and Penngrove. Plaintiff has not provided any evidence that it believes that Defendant is in any one of those locations or otherwise shown that The Community Voice is the paper most likely to give Defendant actual notice.
Plaintiff’s motion fails to establish that Plaintiff cannot, with reasonable diligence, serve Defendant in some other authorized manner. Accordingly, the motion is DENIED.
­­­­­­­­      Plaintiff’s counsel shall submit a written order to the court consistent with this ruling.



[1] The thirtieth affirmative defense is labeled as the thirteenth affirmative defense.
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