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TENTATIVE RULINGS LAW & MOTION CALENDAR Wednesday, September 28, 2022, 3:00 p.m. Courtroom 17 – Hon. Bradford DeMeo 3035 Cleveland Avenue, 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 an in-person appearance by 4:00 p.m. the day before the hearing. If the tentative ruling is accepted, no appearance is necessary via Zoom unless otherwise indicated. TO JOIN ZOOM ONLINE: D17 – Law & Motion 3:00 pm Wednesday/2:30 pm Friday Meeting ID: 895 5887 8508 Passcode: 062178 TO JOIN ZOOM BY PHONE: By Phone (same meeting ID and password as listed for each calendar): +1 669 900 6833 US (San Jose) 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 Judge DeMeo's Judicial Assistant by telephone at (707) 521-6725, and all other opposing parties of your intent to appear by 4:00 p.m. on Tuesday, September 27. Parties in small claims cases and 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. MCV-254124, Capital One Bank v Acree
Plaintiff Capital One Bank (USA), N.A., (“Plaintiff”) filed the complaint in this action against defendant Neal Acree (“Defendant”), with a cause of action for common counts. This matter is on calendar for Plaintiff’s motion pursuant to pursuant to Cal. Code Civ. Proc. (“CCP”) § 664.6 and the filed settlement agreement (the “Agreement”) to enter judgment in the case in the amount of $3,505, as Defendant has defaulted on the agreement. There is no opposition to the motion. The Motion is GRANTED.
CCP § 664.6(a) provides: “If parties to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” CCP § 664.6(b) provides that a written agreement is enforceable if signed by a party, that party’s attorney, or an insurer’s authorized agent. See also Provost v. Regents of University of California (2011) 201 Cal.App.4th 1289, 1295. Like proving a contract, in order to have an enforceable agreement under CCP § 664.6, the moving party must show that there was mutual consent to common terms. Bowers v. Raymond J. Lucia Companies, Inc. (2012) 206 Cal.App.4th 724, 732-733. A motion to enforce a settlement agreement under CCP § 664.6 must show there is an agreement signed by all the parties to the agreement, not just the parties against whom the agreement is sought to be enforced. Sully-Miller Contracting Co. v. Gledson/Cashman Construction, Inc. (2002) 103 Cal.App.4th 30, 37.
Plaintiff moves the Court for a judgment pursuant to the settlement agreement. Plaintiffs ask for $2,900 in principle, and $605 in costs. The stipulation states that Defendant owes $2,959.57, plus costs. The stipulation states that Defendant is to receive credit for any and all payments made. Plaintiff avers that Defendant made his last payment on February 8, 2021. Defendant paid $59.57 on February 8, 2021, and this was the first and last payment made toward the stipulated amount. Plaintiff served a memorandum of costs stating their costs were $605. Therefore, the amounts of $2,900 in principle, and $605 in costs are appropriate.
Therefore, the Motion is GRANTED. Judgment will be entered in the amount of $3,505.00.
Plaintiff shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule of Court 3.1312(a) and (b). Thereafter, the Court will enter the proposed judgment.
2. SCV-265261, Protect Our Plaza v City of Sonoma
Motion to Tax/Strike Costs GRANTED. The motion is granted as to taxing the costs of Real Parties in Interest (“RPIs”) as follows: filing, motion, and service costs of $2,575 as detailed below, reporter or transcript costs of $669.20, and exhibit costs of $181.57, a total of $3,425.77. This leaves to RPIs $874 in recoverable costs as claimed in their memorandum. The motion is granted as to taxing Respondent’s claimed costs for preparation of the record.
Facts and History
Petitioner, an unincorporated association, brought a petition for writ of mandate enforcing the California Environmental Quality Act (“CEQA”) as to the alleged plan of Real Parties in Interest (“RPIs”) to expand RPIs’ Sonoma Cheese Factory (“the Factory”) (“the Project”), which Respondents City of Sonoma (“the City”) and City Council of the City of Sonoma (“the Council”) approved in 2019. Petitioner sought a writ of mandate ordering Respondents to set aside the Project approval and take no further action towards the Project without preparing an environmental impact report (“EIR”) in compliance with CEQA.
After the hearing of February 2, 2022, this court denied the petition in full. It subsequently entered judgment against Petitioner on June 1, 2022.
Respondent filed a memorandum of costs on May 24, 2022, and RPIs filed a memorandum of costs on June 6, 2022.
Petitioner moves the court to tax the costs claimed. It admits that RPIs and Respondent are entitled to recover proper, reasonable costs, but challenges certain costs of RPIs and certain costs of Respondent.
RPIs oppose the motion as to their costs, arguing that they actually and reasonably incurred the costs which they list, the costs are standard recoverable costs, and Petitioner has failed to cite to anything demonstrating that they are improper.
Respondent also opposes the motion, arguing that the volume of documents, and particularly e-mails which required examination to find and cull out privileged documents, necessitated hiring a law firm to use a software program to assist and that this is the bulk of the expense.
Recovery of Costs
A “prevailing party” may recover costs pursuant to Code of Civil Procedure (“CCP”) § 1032. There is no dispute that Respondent and RPIs are the prevailing parties in this case.
CCP §1033.5 governs what items a prevailing party under CCP §1032 can claim as costs. CCP § 1033.5(a) lists those costs which are generally recoverable and states, in pertinent part and with emphasis added,
(a) The following items are allowable as costs under Section 1032:
(1) Filing, motion, and jury fees.
(9) Transcripts of court proceedings ordered by the court.
(11) Court reporter fees as established by statute.
(13) Models, the enlargements of exhibits and photocopies of exhibits, and the electronic presentation of exhibits… may be allowed if they were reasonably helpful to aid the trier of fact.
(14) Fees for the electronic filing or service of documents through an electronic filing service provider if a court requires or orders electronic filing or service of documents.
(16) Any other item that is required to be awarded to the prevailing party pursuant to statute as an incident to prevailing in the action at trial or on appeal.
Subdivision (b) lists those items not recoverable, “except when expressly authorized by law.” The list includes, “(5) Transcripts of court proceedings not ordered by the court.” Finally, subdivision (c) specifies, in pertinent part,
An award of costs shall be subject to the following:
(1) Costs are allowable if incurred, whether or not paid.
(2) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.
(3) Allowable costs shall be reasonable in amount.
(4) Items not mentioned in this section and items assessed upon application may be allowed or denied in the court's discretion.
The court generally may not allow as costs items that statutes do not authorize. Ladas v. California State Auto. Assn. (1993)19 Cal.App.4th 761, 774. However, “costs are one of two types: those recoverable as a matter of right and those recoverable at the discretion of the court.” Perko’s Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 242. The court does have discretion under the statutes to allow or deny items that the statute does not expressly mention. CCP § 1033.5(c)(4).
RPIs seek $2,700 for filing and motion fees, $669.20 for court reporter fees as established by statute, $181.57 for exhibits, and $749 for electronic filing and service fees.
Petitioner challenges the filing, motion, and service fees, items 1 and 14, as unreasonable and insupportably high. It points out that these are far greater than Petitioner’s and Respondent’s filing and motion fees combined and argues that the parties agreed to e-service, so such expenses should have been unnecessary. Indeed, RPIs’ claimed filing, motion and service fees total $3,449, which is far more than Petitioner’s total fees of about $700 combined with Respondent’s $605.80. RPIs’ costs memorandum does not include any specification or explanation.
RPIs’ opposition on this point is based on the declaration of paralegal Ron Auceda (“Auceda”) with the law firm’s disbursement diary at Ex. 1 expressly showing the claimed costs for items 1 and 14. This exhibit shows $2,175 for a “filing/recording fee” for a verified answer, plus the $435 first appearance fee, $400 for an “appeal,” a $90 fee for a motion for judgment on the pleadings, plus five other filing charges of $27 each amounting to $135, plus one $22 filing fee. The first appearance fee, the $90 fee for the failed motion for judgment on the pleadings, and the charges of $22 and $27 each, a total of $157, appear reasonable. The $2,175 fee, however, on its face appears to be unreasonable and improper. The “appeal” fee of $400 appears to have no basis since there was no appeal and nothing else indicates anything which would have such a fee. The court grants the motion to tax as to the $2,175 fee and the $400 “appeal” fee.
Petitioner also challenges the claimed reporter or transcript expense of $669.20, noting that there was no hearing on the writ and no party paid for a court reporter for any other hearing. In opposition, RPIs rely on Auceda Dec., Ex.2, another disbursement diary excerpt. The record shows that there was a court reporter for the hearing on the motion for judgment on the pleadings on August 19, 2020, but nothing shows that RPIs paid for this. RPIs’ claimed reporter expense in Ex.2 is dated January 6, 2021, and described as a “Veritext city council meeting transcription.” Moreover, nothing demonstrates that these, or any other reporter or transcription costs were for “Transcripts of court proceedings ordered by the court” or “Court reporter fees as established by statute,” the only kinds which are recoverable as costs. As noted above, section 1033.5(b)(5) expressly states that “Transcripts of court proceedings not ordered by the court” are not recoverable costs. Finally, RPIs’ own rather vague evidence indicates that the transcript costs were not even for court proceedings. The court GRANTS the motion to tax costs as to the $699.20 “reporter fees.”
Finally, Petitioner attacks the claimed $181.57 in costs for models, exhibits, and the like. It argues that there was no hearing on the writ and that these were not justifiable. As noted above, section 1033.5(a) states that such costs “may be allowed if they were reasonably helpful to aid the trier of fact.” The court thus has discretion to allow these, there was no “trier of fact” as such, there was no hearing, and the decision was on the administrative record, rendering any such exhibits unnecessary anyway. The court finds no sufficient justification for these costs and accordingly GRANTS the motion as to these.
In total, the court GRANTS the motion to tax RPIs’ filing, motion, and service costs of $2,575 as detailed above, reporter or transcript costs of $669.20, and exhibit costs of $181.57, a total of $3,425.77. This leaves to RPIs $874 in recoverable costs as claimed in their memorandum.
In its memorandum of costs, Respondent claims $565 for filing and motion fees, $40.80 for electronic filing or service fees, and $24,029.76 for “other,” in this case the costs of preparing the administrative record.
Petitioner challenges the claimed costs for preparation of the administrative record, arguing that it paid $8,182 for preparing the record plus $291.25 for transcripts of the administrative hearings included in the record, and no party objected to it preparing the record while Respondent’s costs memorandum explains that these costs were simply for its staff and agents to take the time to review and provide the documents for the record. It also argues that Respondent was not entitled to delegate the task to another party.
Public Resources Code (“PRC”) section 21167.6 governs the preparation of the administrative record in actions under CEQA. Subdivision (a) states that the Petitioner shall file a request that the respondent agency prepare the record within 10 days of filing the action. According to subdivision (b)(1), if the petitioner requests the agency to prepare the record, the public agency shall prepare the record not later than 60 days from the date that the petitioner served the request and the “parties shall pay any reasonable costs of fees imposed for the preparation of the record….” However, under subdivision (b)(2), alternatively, “plaintiff or petitioner may elect to prepare the record of proceedings, or the parties may agree to an alternative method or preparation of the record of proceedings, subject to certification of its accuracy by the public agency, within the time limit specified in this subdivision.” Subdivision (f) adds that “In preparing the record of proceedings, the party preparing the record shall strive to do so at reasonable cost in light of the scope of the record.”
Petitioner relies in part on Hayward Area Planning Association v. City of
Hayward (2005) 128 Cal. App.4th 176 (“HAPA”), where petitioner elected to allow the respondent city to prepare the record and the city delegated the task to the law firm representing the real party in interest. After the trial court entered judgment in favor of the city and real party, it awarded them costs which included costs which the real party claimed for preparing the record. The trial court only limited the costs for the preparation to what it found to be a reasonable amount which the city would have incurred had it actually prepared the record. It found the city persuasively demonstrated that it lacked the resources to prepare the record in the statutory time and that it reasonably chose to comply with that deadline instead of seeking an extension, but found that after delegating the preparation to the real party, the city had no effort to control or limit the costs. HAPA, 180-181. It found the rates and charges to be too high so reduced them to a figure which it felt reflected a reasonable cost of the city preparing the record.
The petitioner in HAPA appealed the cost award and the court of appeal reversed, ruling that real party was not entitled to the costs of preparing the record. The court explained, at 183, that
[PRC] Section 21167.6 authorizes only three ways to prepare a CEQA record, none of which were followed in this case. The three alternatives are (1) that the public agency prepare and certify the record; (2) that the petitioner prepare the record, subject to certification by the public agency; or (3) that the parties agree to an alternative method of preparing the record, subject to certification by the public agency. The City's delegation of the task to the real party in interest without obtaining the consent of plaintiffs was inconsistent with this statutory scheme.
It noted that the three identified methods allow for control of the costs to levels which are reasonable and acceptable to the parties who may need to pay for the costs, the petitioner and respondent. The court explained, at 183-184, that when the agency prepares the record, under subdivision (b)(1),
costs are controlled in three ways. First, as occurred in this case, the petitioner may request an initial cost estimate to inform its decision whether to prepare the record itself. That cost estimate serves as a restraint on the agency's ultimate recovery of costs. Second, the agency has a duty to act in the public interest and it is accountable to its constituents for the use of public funds. Had the City here, for example, contracted with Hayward 1900 and assumed responsibility for the costs in the first instance, it would have been required to file a cost bill in its own name. Third, the agency is bound by the statutory mandate to minimize costs, which the trial court enforces by taxing unreasonable costs. (§ 21167.6, subd. (f).)
Similarly, it pointed out, “[w]hen the record is prepared under section 21167.6, subdivision (b)(2), either the petitioner directly controls the costs by its personal assumption of the task, or it indirectly controls the costs by consenting to an alternative arrangement.” By contrast, it added, where the respondent simply allows the real party to prepare the record, there is no oversight of the costs, or duty or incentive to keep them low.
Accordingly, the court found, the city had no authority instead to delegate the preparation to the real party because doing so did not comply with any of the approved methods. It explained further that when a public agency prepares the record, it is under a statutory obligation to keep the costs to a reasonable level with the court enforcing that obligation on a motion to tax costs, while the real party has no such obligation or incentive. The court added, at 184, that while “courts have allowed public agencies to collect the labor costs of outside assistance when they prepare the record under section 21167.6, subdivision (b)(1), no court has condoned the unilateral delegation of the task to a party with an interest in the litigation.” At the same time, it reiterate that agencies may recover costs of preparing the record even when hiring outside assistance, pointing out that “a public agency may seek reimbursement for the labor costs of its own skilled employees who help prepare a record, assuming those costs are both necessary and reasonable,” and may use its own law firm which it has hired to prepare the record, subject again to review for reasonableness.
Respondent argues that HAPA does not support Petitioner’s argument but, despite some valid points, ultimately it is not persuasive. Respondent is correct that in HAPA the court was faced with a specific situation not present here, the city’s unilateral decision to allow the real party to prepare the record, and the court in HAPA expressly ruled that it was improper for the city to delegate preparation of the record to the real party. In this case, Respondent did not delegate to RPI and instead Respondent merely hired a law firm to do the task which it wanted to complete. As noted above, the court in HAPA even expressly pointed out that this has been found to be appropriate, subject to review for reasonableness. In the end, this nuance is irrelevant because where Petitioner is entirely persuasive is the point that Respondent had no authority at all unilaterally to choose such a costly method of sifting through the e-mails because it was Petitioner who had elected to prepare the record under subdivision (b)(2). Respondent here, unlike the city in HAPA, was not the party tasked with the expense and obligation of preparing the record under subdivision (b)(1).
As in HAPA, Respondent is seeking compensation for preparation not authorized in section 21167.6. As detailed above, either Respondent prepares the record, or Petitioner does it, or they mutually agree on a method. Respondent secretly and unilaterally taking on expenses of preparing the record on its own, when Petitioner had elected to do it and in fact did it without objection, is not within the statutorily approved methods.
Respondent unilaterally deciding to incur expenses in the record preparation when it is not even the party charged with controlling the preparation, not only violates the plain language of the law but it violates the underlying policies of allowing that the parties so charged have oversight in order to keep the costs down. This court is mindful of the cost control inherent in the different preparation methods set forth in section 21167.6 as explained in HAPA above. Where the Respondent is tasked with preparing the record, it has control over the costs and has an obligation and an incentive to minimize them. Here, Respondent was not the party tasked with preparing the record and thus clearly had no incentive to minimize them. Indeed, it effectively admits that it chose a more expensive method in order to make it easier. At the same time, where the Petitioner undertakes to prepare the record, it has the ability and incentive to keep the costs low because it is the one who is controlling the preparation and, at least potentially, paying the cost. Allowing Respondent unilaterally to circumvent that cost-control method thus clearly violates the underlying policies as set forth in HAPA, and which provided the basis for the decision in HAPA.
Moreover, as noted above, section 21167.6(f) expressly requires, and allows, the party preparing the record to “strive to do so at reasonable cost in light of the scope of the record,” a right and an obligation which would be frustrated by allowing another party unilaterally to incur additional costs for the preparation and then seek to recover those costs.
As the HAPA court pointed out, an agency may, if tasked with preparing the record, hire an outside firm to do it or to assist. However, that is true where the agency is the party preparing the record which, again, it did not do here. Even assuming that an agency could potentially recover costs for doing necessary and reasonable tasks of collecting documents for the petitioner who is preparing the record, the circumstances here do not support Respondent’s claims. Again, it acted unilaterally in incurring these expenses, without regard to Petitioner, oversight or agreement from Petitioner, or any other involvement from Petitioner. Such unilateral action by a party not even tasked with the preparation of the record is unauthorized and clearly creates a threat of injustice for the reasons explained. Moreover, as the HAPA court further pointed out, respondent agencies who prepared the record have been allowed to recover costs of hiring outside help where they demonstrated that the costs were reasonably incurred and were reasonable in amount. Here, Respondent has done nothing to show that it reasonably needed to hire an outside firm. In HAPA, at least, the trial court had found that the city has demonstrated that it was proper for it to seek outside assistance in order to expedite the preparation rather than seek an extension. This is not a factor here because Petitioner was preparing the record and nothing indicates that Respondent even explained to Petitioner that it needed outside help or more time, or indeed that Petitioner had any clue whatsoever that, in addition to the costs it was incurring itself, Respondent was unilaterally incurring additional costs, costs in fact far greater than those which Petitioner was incurring and which Petitioner reasonably and evidently felt to be the costs for which it could be on the hook.
Perhaps more fitting to this situation, Petitioner also relies on Coalition for Adequate Review v. City and County of San Francisco (2014) 229 Cal.App.4th 1043, where the court ruled that in cases where the petitioner elects to prepare the record, an agency may not recover labor costs for even its own staff to review the petitioner-prepared record. It noted, at 1059, that an agency could incur such labor costs in every case where a petitioner undertakes to prepare the record and that ‘if an agency could always claim a sizeable amount for review “for completeness” or “certification,” that would defeat the Legislature's aim of providing for lower-cost record preparation alternatives. [Citations.]’ The court, at 1060, did find that the agency is entitled to recover necessary, reasonable labor costs such as retrieving and transporting record materials, but only for a supplemental record which the agency later prepared itself.
In St. Vincent’s School for Boys v. City of San Rafael (2008) 161 Cal.App.4th 989, the court found it appropriate for an agency to recover limited, reasonable costs regarding record preparation even though the petitioner had elected to prepare the record, but these were limited to the specific situation before it. In that case, the agency demonstrated that the petitioner had unreasonably burdened the agency with “extraordinary” discovery costs. The court noted, at the same time, that in general authority indicated that this was an unusual situation entitling the agency to recover some limited, specific costs despite the fact that petitioner had prepared the record. It also acknowledged, at 1014, petitioner’s point that there was no authority actually allowing one party to recover preparation costs where the other party had prepared the record.
Petitioner here did not impose on Respondent extraordinary costs with such demands. Moreover, in St. Vincent’s, the court noted that the agency had communicated its troubles in searching for the documents and had requested and received several extensions for doing so. Here, again, Respondent simply chose unilaterally to use the fastest method of gathering the documents, regardless of cost.
Respondent cites to decisions where agencies were allowed to recover reasonable costs of preparing the record but in each of these, the agency was the party tasked with preparing the record. River Valley Preservation Project v. Metropolitan Transit Development (1995) 37 Cal.App.4th 154; Green v. County of Riverside (2015) 238 Cal. App.4th 1363. Of these, Green is not even a CEQA case. These are inapplicable.
The court GRANTS the motion to tax the costs which Respondent has claimed for preparation of the record. Petitioner prepared the record, and Respondent’s unilateral decision to incur far greater additional costs without the involvement of Petitioner violates both the letter of section 21167.6 and the policies which it is intended to effect, and it is inconsistent with the applicable case law interpreting and applying section 22167.6.
The court GRANTS the motion as detailed above. The prevailing party shall prepare and serve a proposed order consistent with this tentative ruling within five days of the date set for argument of this matter. Opposing counsel shall inform the preparing counsel of objections as to form, if any, or whether the form of order is approved, within five days of receipt of the proposed order. The preparing party shall submit the proposed order and any objections to the court in accordance with California Rules of Court, Rule 3.1312.
3. SCV-265320, Bransford v Cannacraft, Inc
This matter has been rendered MOOT by the subsequent substitution of attorney by Counsel Jeffrey Kirk.
4. SCV-270016, County of Sonoma v Putnam
In this property abatement action, the County of Sonoma (the “County”) seeks a Default Judgment and Permanent Injunction against defendant Andrew Lee Putnam (“Defaulted Defendant”), as partial owner of the property commonly known as 401 Petaluma Ave., Sonoma, California (the “Property”), in the County of Sonoma. Also named in the action, and having appeared, is Ruth Ann Putnam (“Answered Defendant”). The Judgment requested in this motion would include an order permanently enjoining Defaulted Defendant, and his agents and assigns, from maintaining ongoing violations of the Sonoma County ordinances and the unlawful use of the property.
The County filed the underlying Complaint on January 19, 2022 for injunctive relief related to multiple public nuisances on the Property. The County personally served the Defaulted Defendant, at 8435 Liberty Avenue, Rohnert Park, on January 27, 2022. On March 10, 2022, when Lawndale had not filed a response to the Complaint, the County filed a Request for Entry of Default against Defaulted Defendant, and the default was entered the same day.
The County moves for a default judgment against Defaulted Defendant under Code of Civil Procedure section 585(b) and requests that the Court issue a permanent injunction enjoining Defaulting Defendant from, among other things, “from maintaining any condition or use upon the Property contrary to the ordinances of the County of Sonoma; and . . . immediately cease the present unlawful uses of the Property in Violation of the Sonoma County Code”. (Proposed Order at ¶ 6-7.) The County also requests an Order requiring Lawndale to pay unrecovered abatement costs, County Counsel costs, civil penalties and unrecovered attorneys’ fees. The County requests $19,086.19 in abatement costs, $10,575 in attorneys’ fees, $165 in legal costs and $237,000 in civil penalties to this point. The County states that these penalties and fees will continue to accrue through the final satisfaction of the case. The County served the motion by mail on August 3, 2022.
Defaulted Defendant has not filed an opposition. Having received no opposition, the Court rules as follows:
The County’s Request for Judicial Notice is GRANTED. The County’s Motion for a Default Judgment and Permanent Injunction is GRANTED and the County’s requests for abatement costs, civil penalties, and attorneys’ fees are also GRANTED.
The CCP provides that if the defendant has been served, other than by publication, and no response has been filed, “the clerk, upon written application of the plaintiff, shall enter the default of the defendant” and “[t]he plaintiff thereafter may apply to the court for the relief demanded in the complaint.” (Code Civ. Proc. §585(b).) “The court shall hear the evidence offered by the plaintiff, and shall render judgment in the plaintiff’s favor for that relief, not exceeding the amount stated in the complaint, in the statement required by Section 425.11, or in the statement provided for by Section 425.115, as appears by the evidence to be just.” (Ibid.) “If the taking of an account, or the proof of any fact, is necessary to enable the court to give judgment or to carry the judgment into effect, the court may take the account or hear the proof, or may, in its discretion, order a reference for that purpose.” (Ibid.) Additionally, Sonoma County Code section 1-7 allows for the assessment of civil penalties and recover of costs, including “any administrative overhead, salaries and expenses incurred by the following departments: health services, permit and resource management, county counsel, district attorney, transportation and public works, agriculture/weights & measures, and fire and emergency services.” (See, SCC at §1-7(d).)
In this case, the County’s Complaint; entry of default; and this motion for a default judgment and permanent injunction provide a sufficient basis for the Court to enter the judgment and injunction as requested. Accordingly, the motion is GRANTED.
Unless oral argument is requested, the Court will sign the Proposed Order lodged with the motion.
5 & 6. SCV-270145, County of Sonoma v Bagley
Plaintiff the County of Sonoma (the “County”, or “Plaintiff”), filed the complaint against defendants William T. Bagley (“Defendant”) arising out of Defendant’s nuisance property (the “Complaint”). Defendant has filed a cross-complaint with his answer which contains causes of action for: 1) libel; 2) negligence.; 3) intentional infliction of emotional distress; and 4) (mislabeled 6) intentional interference with prospective economic advantage (the “Cross-Complaint”). This matter is on calendar for the County’s demurrer to the Cross Complaint pursuant to Cal. Code Civ. Proc. (“CCP”) § 430.10(e) for failure to state facts sufficient to constitute a cause of action, as well as the County’s motion to strike pursuant to CCP § 435 et seq.
An amended answer was filed June 7, 2022 which appears to address the County’s concerns regarding the lack of verification of answer. Therefore, the County’s demurrer to the Answer is MOOT. Analysis proceeds to the
I. Legal Standards
A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. CCP § 430.30(a). In the event a demurrer is sustained, leave to amend should be granted where the complaint’s defect can be cured by amendment. The Swahn Group, Inc. v. Segal (2010) 183 Cal.App.4th 831, 852.
A motion to strike lies where a pleading contains “irrelevant, false, or improper matter[s]” or is “not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” CCP § 436(b). However, “falsity,” must be demonstrated by reference to the pleading itself of judicially noticeable matters, not extraneous facts. See CCP § 437. A motion to strike is also properly directed to unauthorized claims for damages, meaning damages which are not allowable as a matter of law. See, e.g. Commodore Home Systems, Inc. v. Sup. Ct. (1982) 32 Cal.3d 211, 214 (motion to strike lies against request for punitive damages when the claim sued upon would not support an award of punitive damages as a matter of law). And punitive damages may be stricken where the facts alleged do not rise to the level of “malice, fraud or oppression” required to support a punitive damages award. See, e.g. Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63.
II. Request for Judicial Notice
The County filed a Request for Judicial Notice (“RFJN”) which seeks judicial notice of two documents, one within this case and another being a public record. Without weighing the truth of the matters therein, the requests for judicial notice are GRANTED.
“On a demurrer a court’s function is limited to testing the legal sufficiency of the complaint. [Citation.] ‘A demurrer is simply not the appropriate procedure for determining the truth of disputed facts.’ [Citation.] The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable. [Citation.]”). Bounds v. Sup. Ct. (2014) 229 Cal.App.4th 468, 477-478. “(A) court cannot by means of judicial notice convert a demurrer into an incomplete evidentiary hearing in which the demurring party can present documentary evidence and the opposing party is bound by what that evidence appears to show.” Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal.App.4th 97, 115.
A demurrer can be utilized where a complaint discloses some defense that would bar recovery, including where it shows that the statute of limitations has run. Guardian North Bay, Inc. v. Sup. Ct. (2001) 94 Cal.App.4th 963, 971-972. But to be subject to a general demurrer, the running of the statute must appear “clearly and affirmatively” from the face of the complaint; it is not enough that the complaint might be time-barred. Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42. If the dates in question are not shown on the face of the complaint, there is no ground for demurrer, as dates are not an essential element of a cause of action. See, e.g. Union Carbide Corp. v. Sup.Ct. (1984) 36 Cal.3d 15, 25.
It is a requirement when filing an action for money damages against a public entity to present a claim to that entity prior to the filing of a legal action. Gov. Code, § 905. Claims submitted must include the date place and circumstances of the occurrence, a general description of the injury damage or loss, and the names of public employees causing the injury damage or loss. Gov. Code, § 910. “(F)ailure to file a claim is fatal to the cause of action.” City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 454. Even actual knowledge of the alleged injuries on the part of the governmental entity is inadequate to cure the failure of a plaintiff to file a claim. Johnson v. City of Oakland (1961) 188 Cal.App.2d 181, 184.
Governmental entities also have immunity for injures resulting from the acts or omissions of its employees, as well as any form of suit from which the employees themselves are immune. Gov. Code § 815. Government entities and their employees, acting within the scope of their employment, are generally not subject to liability for negligent or intentional misrepresentations. Gov. Code §§ 818.8, 822.2. This immunity extends to claims of intentional infliction of emotional distress and defamation. Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033, 1050 (immunity under Gov. Code § 822.2 applied to both claims for intentional infliction of emotional distress and defamation); Old Town Development Corp. v. Urban Renewal Agency of City of Monterey (1967) 249 Cal.App.2d 313, 337 (governmental immunity applies to libel); accord. Amylou R. v. County of Riverside (1994) 28 Cal.App.4th 1205, 1209 (County is immune from suit for intentional infliction of emotional distress); contra City of Costa Mesa v. D'Alessio Investments, LLC (2013) 214 Cal.App.4th 358, 383 (governmental immunity does not apply to trade libel). Interference with prospective economic advantage is an exception to this general immunity. City of Costa Mesa v. D'Alessio Investments, LLC, supra, 214 Cal.App.4th at 383. The government also maintains immunity to claims of negligence not rooted in specific statutory exceptions to their general immunities. Harshbarger v. City of Colton (1988) 197 Cal.App.3d 1335, 1349; Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 809.
To constitute an action for libel, a plaintiff must show that the defendant made a false and unprivileged publication which causes damage to plaintiff’s reputation. Civ. Code, § 45. In pleading libel, a plaintiff must confer the exact statement which is claimed to be false. Des Granges v. Crall (1915) 27 Cal.App. 313, 315. “Defamation is an invasion of the interest in reputation. The tort involves the intentional publication of a statement of fact that is false, unprivileged, and has a natural tendency to injure or which causes special damage.” Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645. Publication means communication to any third person who understands the defamatory meaning of the statement and the application to whom reference is made.Vedovi v. Watson & Taylor (1930) 104 Cal.App. 80, 83. A plaintiff cannot publish the defendant’s statements in order to manufacture the publication requirement; defendant must be responsible for the publication leading to libel claims.Live Oak Publishing Co. v. Cohagan (1991) 234 Cal.App.3d 1277, 1284. Only where plaintiff is compelled to re-publish the statements in aid of disproving them is the defendant’s publication not required. Id.
The tort of intentional interference with prospective economic relations/advantage has five elements: (1) the existence, between the plaintiff and some third party, of an economic relationship that contains the probability of future economic benefit to the plaintiff; (2) the defendant's knowledge of the relationship; (3) intentionally wrongful acts designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm proximately caused by the defendant's action. Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc. (2017) 2 Cal.5th 505, 512; see also CACI 2202 (CACI 2202 breaks the same elements up into seven elements). “The tort does not require interference with a relationship which has ripened into a contract, but merely requires one which has such a potential; it is a question of fact whether the business relationship between the plaintiff and third party is sufficient to support the tort.” Tri-Growth Centre City, Ltd. v. Silldorf, Burdman, Duignan & Eisenberg (1989) 216 Cal.App.3d 1139, 1153. A cause of action for tortious economic interference is intended to protect the same “stable economic relationships” as would be subject to tortious interference with a contract. Fresno Motors, LLC v. Mercedes Benz USA, LLC (9th Cir. 2014) 771 F.3d 1119, 1125. The statute of limitations for intentional interference with prospective economic advantage is two years. See CCP § 339.
Within the Cross-Complaint there is no contention that he submitted a claim as required under Gov. Code § 905. Failure to submit a claim is fatal to the Cross-Complaint. However, at this juncture, there is nothing admissible before the Court indicating that Defendant did not submit a claim, only a dearth of evidence that Defendant did submit one. This is a defect which may be capable of remedy. Therefore, as to all causes of action, there is reason to sustain the demurrer with leave to amend.
However, Defendant also alleges multiple causes of action to subject to governmental immunity. Particularly, the County is not subject to causes of action for intentional infliction of emotional distress, libel (defamation), or general negligence. See Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033, 1050; see also Harshbarger v. City of Colton (1988) 197 Cal.App.3d 1335, 1349. The County being immune to these claims, this is a pleading defect incapable of remedy. However, the County is not immune to claims for intentional interference with prospective economic advantage. City of Costa Mesa v. D'Alessio Investments, LLC, supra, 214 Cal.App.4th at 383. As such, there is not basis to sustain the demurrer as to this cause of action due to immunity.
It is not apparent to the Court on reading that Defendant’s allegations of causes of action which continued to accrue have run afoul of the statute of limitations. The Cross-Complaint alleges that the actions giving rise to his rather nebulous causes of action. Causes of action which continue to accrue due to subsequent actions run until commission of the last overt act. Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 784. There are several allegations from Defendant in the Cross-Complaint within this calendar year. This would militate against the impression that the statute of limitations bars Defendant’s claims. Particularly because of the nature of the remaining claim of intentional interference with prospective economic advantage, sustaining the demurrer on the grounds of statute of limitations appears inappropriate. The issue of statute of limitations must appear clearly and affirmatively on the face of the complaint, and it is not enough that a matter may be time barred. See Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42. The statute of limitations does not bar Defendant’s Cross-Complaint on the face of the pleading.
Defendant has not plead either libel or intentional interference with prospective economic advantage with adequate particularity to delineate the cause of action. The claims for libel do not state the particular false statement, being so obtuse as to leave the Court unable to determine the alleged false statement. Similarly, the action for interference with prospective economic advantage does not produce cognizable relationships which were damaged through the County’s actions. Nor does the Defendant allege the County had knowledge of those relationships, a necessary element to the claim. Such pleading deficiencies may be remedied.
Based on the above, the demurrer is SUSTAINED without leave to amend as to the causes of action for negligence, intentional infliction of emotional distress, and libel, due to governmental immunity. The demurrer is sustained with leave to amend as to the cause of action for intentional interference with prospective economic advantage.
IV. Motion to Strike
Exemplary damages are expressly repudiated by the Tort Claims Act, and are unavailable to Defendant in the Cross-Complaint. See Gov. Code § 818. This applies to Cross-Complaint ¶ 70, to which the motion to strike is GRANTED without leave to amend. Cross-Complaint ¶ 47 does not appear related entirely to punitive damages, and therefore to that section, the motion to strike is DENIED.
The demurrer is SUSTAINED without leave to amend as to the causes of action for negligence, intentional infliction of emotional distress, and libel, due to governmental immunity. The demurrer is sustained with leave to amend as to the cause of action for intentional interference with prospective economic advantage. The motion to strike is GRANTED in part without leave to amend and DENIED in part.
Plaintiff shall submit his amended complaint within 20 days’ of notice of this order.
The County’s counsel shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule of Court 3.1312(a) and (b).
7. SCV-270614, Mendonca v Linsenmeyer
Plaintiff Jamie Mendonca (“Plaintiffs”) filed the complaint in this action for declaratory relief, partition under Cal. Code Civ. Proc. (“CCP”) §§ 874.313 and 872.210, accounting and damages/waste (the “Complaint”) against defendants Josh J. Linsenmyer (“Defendant”) and Does 1-10, for causes of action related to the property commonly known as 2572 Bodega Avenue, Petaluma, California (the “Property”).
This matter is on calendar for the motion by Defendant for leave of court to file a compulsory cross-complaint pursuant to CCP §§ 428.50. Defendant wishes to file a cross-complaint for declaratory relief (“Cross-Complaint”) for additional clarification as to the rights and responsibilities of the parties at issue in the Complaint. Defendant argues that he should be allowed to file the cross-complaint as it is compulsory.
Plaintiff and Defendant are both owners of the Property. Complaint ¶¶ 2-3. Defendant is also granted an exclusive life estate to the guest house on the property, colloquially known as 2572 ½ Bodega Avenue (the “Guest House”), subject to various constraints. Complaint, Exhibit A (the “Grant Deed”), pg. 4. Plaintiff has moved for partition of the Property, and Defendant has moved to file the Cross-Complaint for declaratory relief, pointing to not just the Grant Deed, but the underlying trust which distributed the Property to the parties.
CCP § 428.50(c) provides: “The court, after notice to the adverse party, shall grant, upon such terms as may be just to the parties, leave to amend the pleading, or to file the cross-complaint, to assert such cause if the party who failed to plead the cause acted in good faith. This subdivision shall be liberally construed to avoid forfeiture of causes of action.” If the proposed cross-complaint is permissive, leave of court may be granted “in the interests of justice” at any time during the course of the action. On the other hand, if the proposed cross-complaint is compulsory, leave must be granted so long as defendant is acting in good faith. CCP § 426.50. A motion to file a compulsory cross-complaint must be granted unless the bad faith of the moving party is demonstrated by any opposition. Silver Organizations Ltd. v. Frank (1990) 217 Cal.App.3d 94, 99. Cross-complaints are not treated as compulsory, even if they would otherwise qualify under CCP § 426.30, where “(b) both the court in which the action is pending and any other court to which the action is transferrable pursuant to Section 396 are prohibited by the federal or state constitution or by a statute from entertaining the cause of action not pleaded.” CCP, § 426.40. “Subdivision (b) of Section 426.40 is designed to meet problems that may arise when the federal courts have jurisdiction to enforce a cause of action created by federal statute. In some cases, state courts have concurrent jurisdiction with the federal courts to enforce a particular cause of action.” Legislative Comments on Code Civ. Proc., § 426.40, 10 Cal.L.Rev.Comm. Reports 501 (1970); see also Currie Medical Specialties, Inc. v. Bowen (1982) 136 Cal.App.3d 774, 776; LGCY Power, LLC v. Superior Court (2022) 75 Cal.App.5th 844, 865.
The motion is opposed, but Plaintiff makes no argument that the filing was bad faith. Plaintiff does argue that the proposed Cross-Complaint is not compulsory. Plaintiff’s support for this contention appears to rely on a partial reading of CCP § 426.40 (b). As noted above, this is a misreading of § 426.40 (b), which is intended to apply to cases which may bridge between federal and state courts. This provision is clearly inapplicable to the instant case.
This matter, based on the facts, is clearly compulsory. The parties have an interest in the property as delineated in the Grant Deed. Both parties have a remainder interest, but Defendant also has a life estate interest. Defendant has a right to bring a compulsory cross complaint in order to obtain relief in determining the rights and duties of the parties, as related to the Grant Deed. The Grant Deed is also the basis for Plaintiff’s Complaint. Therefore, because Defendant’s Cross-Complaint is based in the same facts and controversies as the Complaint, the Cross-Complaint is compulsory. Plaintiff has not demonstrated any bad faith on the part of Defendant. Therefore, it is mandatory that the Court grant leave to file. See CCP § 426.50.
Plaintiff argues that Defendant has filed an impermissible cause of action based on the pled facts, and therefore the Court should not allow the Cross-Complaint. The Court is unconvinced that the Cross-Complaint is so deficient as to justify denial of leave to file. The existence of a life estate may serve as a basis for denying actions for partition. See Akagi v. Ishioka (1975) 47 Cal.App.3d 426, 433. Additionally, Plaintiff provides no support for the contention that she will have to now litigate Defendant’s Cross-Complaint amounts to “prejudice”. See, e.g. Carbondale Machine Co. v. Eyraud (1928) 94 Cal.App. 356, 360 (under CCP § 473 (b), prejudice is defined as a party being less able to establish their cause of action due to the ruling); accord. Aldrich v. San Fernando Valley Lumber Co. (1985), 170 Cal.App.3d 725, 740 (having to litigate the merits of claims is not prejudice). The Cross-Complaint is sufficient for the Court to grant the compulsory filing in these circumstances.
Defendant’s motion is GRANTED. Defendant shall file his Cross-Complaint within 30 days of notice of this order.
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(a) and (b).
8. SCV-270732, Wiseman v Murphy
Plaintiff Curtis Wiseman (“Plaintiff”) brought this action and filed the complaint (“Complaint”) against defendants the Estate of Glee Murphy, Murphy Revocable Intervivos Trust, David Murphy, Joanna Murphy, Kevin Murphy (Estate of Glee Murphy, Murphy Revocable Intervivos Trust, David Murphy, Joanna Murphy and Kevin Murphy together, “Settling Defendants”), Sonoma Valley Estate Sale (“SVES”, together with Settling Defendants, “Defendants”). This matter is on calendar for the motion by Settling Defendants pursuant to Cal. Code Civ. Proc. (“CCP”) § 877.6 for an order determining that its settlement with Settling Defendants, in the amount of $25,000, is in good faith. The unopposed Motion is GRANTED.
According to the settlement agreement submitted, Plaintiff and Settling Defendants agreed to a structured payment of $25,000 as settlement in exchange for a release of any and all liability associated with Plaintiff’s claims against Settling Defendants.
The Motion is supported by the declaration of Benson Y.L. Chan, attorney for Settling Defendants. Settling Defendants present evidence regarding their comparative potential liability, and the standards for settlement under CCP § 877.6 and Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 494-497.
Based on the moving papers and supporting declarations, which set forth the general terms of the settlement agreement and the general basis for a good faith determination, as well as the fact that there is no opposition to the Motion, the Court concludes that this settlement is in “good faith” as defined by the CCP. See City of Grand Terrace v. Sup. Ct. (1987) 192 Cal.App.3d 1251, 1261 (finding that if a motion for determination of a good faith settlement is not contested, the court does not have to analyze the factors set forth in Tech-Bilt and can summarily grant the motion; “That is to say, when no one objects, the barebones motion which sets forth the ground of good faith, accompanied by a declaration which sets forth a brief background of the case is sufficient.”)
Based on the foregoing, the Motion is GRANTED. Pursuant to CCP § 877.6, any other joint tortfeasor or co-obligor is barred from any further claims under the Complaint against Settling Defendants for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.
Settling Defendants’ counsel shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule of Court 3.1312(a) and (b).