Sep 27, 2021
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TENTATIVE RULINGS                            
LAW & MOTION CALENDAR
Wednesday, September 22, 3:00 p.m. via Zoom
Courtroom 18 – Hon. Jennifer V. Dollard
  

 

PLEASE NOTE: In accordance with the Order of the Presiding Judge, a party or representative of a party may appear personally in Courtroom 18 or may appear remotely through Zoom.  Social distancing among members of the public is no longer required and capacity shall be the normal courtroom capacity. 
 
Masks are required at all times, regardless of vaccination status.  Compliant mask coverings do not include; 1) neck gaiters; 2) masks with valves or other holes; 3) bandanas; or 4) face shields.  This order applies to all interior spaces of the courthouse.  
 
CourtCall is not permitted for this calendar.

 

If the tentative ruling is accepted, no appearance is necessary unless otherwise indicated. 

 

The 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, YOU MUST NOTIFY Judge Dollard’s Judicial Assistant by telephone at (707) 521-6723 and all other opposing parties of your intent to appear, and whether that appearance is in person or via Zoom, no later than 4:00 p.m. the court day immediately preceding the day of the hearing.

 
TO JOIN “ZOOM” ONLINE,
D18 –
MeetingID: 838-5609-8726
Password: 000169
https://us02web.zoom.us/j/83856098726?pwd=WEI3K1BPRCswSk0ZYSs4VUw1OU5ydz09

 
TO JOIN “ZOOM” BY PHONE,
By Phone (same meeting ID and password as listed for each calendar):
+1 669 900 6833 US (San Jose)
 
Guide for participating in court proceedings via Zoom in Department 18.
 
-After joining the meeting and checking in with the clerk, please mute your audio when not speaking. This helps keep background noise to a minimum.
-Be mindful of background noise when your microphone is not muted. Avoid activities that could create additional noise, such as shuffling papers.
-Position your camera properly if you choose to use a web camera. Be sure it is in a stable position and focused at eye level, if possible. Make sure everything visible in the frame is appropriate for an appearance in court.
-If a confidential session becomes necessary it is incumbent on you to ensure you are able to participate from a private location so that unauthorized people cannot overhear or see the proceedings.
-Chat is enabled for the sharing of documents among participants and the court and to allow attorneys to communicate individually with each other or their clients only. No chat messages should be sent privately to the court as it would amount to an unauthorized ex parte communication. Neither should chat messages be sent to all participants unless directed by the court.
-The recording function has been disabled. Remember, the prohibition against recording court proceedings, even remote ones, remains.
-Be patient. Check in will take more time and the experience from those who have tried this before is that proceedings are a little slower generally.
 
 
PLEASE NOTE: The court WILL provide a court reporter for this calendar. If there are any concerns, please contact the court at the number provided above.
 
 

 

 

 

1.            SCV-261366, Carter v. Caratti
 
Tentative Ruling:This case was originally on calendar on August 25, 2021 but was continued to allow attorney Jan Eric Bolt additional time to address certain defects in the motion. On August 26, 2021, Mr. Bolt filed an amended motion, amended declaration, and amended proof of service correcting the defects identified by the Court.
Accordingly, Mr. Bolt’s motion to be relieved as counsel for Greg Mitchell is GRANTED. Unless oral argument is requested, the Court will sign the proposed order lodged with the motion. 
 
 
2.        SCV-262998, Dicks v. Oakmont Mariner Point LLC
 
Tentative Ruling: Defendants’ unopposed petition to confirm the arbitration award is GRANTED. 
 
It is well-established that California has a “strong public policy in favor of arbitration as a speedy and relatively inexpensive means of dispute resolution.”  (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9.) “Because the decision to arbitrate grievances evinces the parties’ intent to bypass the judicial system and thus avoid potential delays at the trial and appellate levels, arbitral finality is a core component of the parties’ agreement to submit to arbitration.” (Richey v. AutoNation, Inc. (2015) 60 Cal.4th 909, 916.)  “[I]t is the general rule that parties to a private arbitration impliedly agree that the arbitrator’s decision will be both binding and final” and thus they agree to bear the risk of an arbitrator’s mistake “in return for a quick, inexpensive, and conclusive resolution to their dispute.”  (Moncharsh, supra, 3 Cal.4th at 9, 11.)
 
“Any party to an arbitration in which an award has been made may petition the court to confirm, correct or vacate the award.” (Code Civ. Proc. §1285.) A petition to confirm an arbitration award must: (1) set forth the substance, or attach a copy, of the arbitration agreement, unless the petitioner denies the existence of an arbitration agreement, (2) set forth the names of the arbitrators, and (3) set forth, or attach a copy of, the arbitration award and the written opinion of the arbitrators, if any.  (Code Civ. Proc. §1285.4.) A copy of the petition to confirm the arbitration award, a written notice of the time and place of the hearing on the petition, and any other papers upon which the petition is based must be served in accordance with Code of Civil Procedure section 1290.4.  “If a petition [to confirm an arbitration award] is duly served and filed, the court shall confirm the award as made … unless… it corrects the award and confirms it as corrected, vacates the award or dismisses the proceeding.”  (Code Civ. Proc. §1286; see also, Louise Gardens of Encino Homeowners’ Assn., Inc. v. Truck Ins. Exchange, Inc. (2000) 82 Cal.App.4th 648, 658.)  If the arbitration award is confirmed, “judgment shall be entered in conformity therewith.”  (Code Civ. Proc §1287.4.)
 
This case arises from Plaintiff’s claims of elder abuse and negligent hiring and supervision during Plaintiff’s residency at Defendants’ residential care facility. (See, Petition at Attachment 8(c), 1:25-27.) On January 25, 2019, the Court granted Respondents’ petition to compel arbitration. (Id. at 2:1-2.) During the course of the arbitration, Plaintiff’s counsel withdrew from the case and Plaintiff’s son, Jason Laveglia, began acting on Plaintiff’s behalf pursuant to a durable power of attorney. (Id. at 2:3:11.) After multiple attempts to engage Mr. Laveglia and move the case forward, mostly to no avail, the arbitrator finally granted Respondents’ motion to dismiss and the matter was dismissed with prejudice on January 7, 2020. (Id. at 12:24-25.) 
 
Shortly after the arbitrator issued his ruling, Defendants’ filed this petition to confirm the ruling. For various reasons, including the Covid-19 pandemic and the September 2020 Glass Fire, the hearing was continued multiple times and was finally set for September 22, 2021. Despite this delay, Plaintiff has not filed an opposition to the petition and has not put forth any reason for the Court to deny the petition. 
 
Accordingly, because Defendants’ petition complies with the requirements of the Code, the petition is granted. Defendants’ counsel shall submit a written order and proposed judgment to the Court.
 
 
3.        SCV-264070, Hildreth v. The TJX Companies, Inc.
          
Tentative Ruling: Defendant’s unopposed motion to compel the deposition of plaintiff Robert Hildreth is GRANTED. Plaintiff is ORDERED to appear for his deposition within 20 days of the hearing date on this motion.   
 
The Code provides in part that “[t]he service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action…to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying.” (Code Civ. Proc. §2025.280(a).) The Code also provides that “[i]f, after service of a deposition notice, a party to the action…without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document or tangible thing described in the deposition notice.” (Code Civ. Proc. §2025.450(a).) If the motion is granted, the court “shall impose a monetary sanction…unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc. 2025.450(g)(1).)
 
In this case, Defendant noticed Plaintiff’s deposition four different times and each time, Plaintiff failed to appear. (See, Collado Dec. at ¶¶1-8; Ex. 1-3, 7.) Despite these repeated notices and notwithstanding the fact that no objections have been served, Plaintiff has failed to appear for his deposition. (Id. at ¶14.) Accordingly, the motion is warranted and is granted as explained above. The Court acknowledges that the parties’ stipulated request to continue the trial date was recently granted on September 13, 2021 and the trial was continued to April 29, 2022. Therefore, the Court gives Plaintiff 20 days to comply with this order and appear for his deposition.     
 
Finally, because Defendant has not requested monetary sanctions and has not provided any evidence to support such an award, no monetary sanctions are awarded.
 
Unless oral argument is requested, the Court will modify and sign the proposed order submitted with the motion.
 
 
4.        SCV-267300, 601 Main Street v. Frym
 
Tentative Ruling:Defendant’s motion to tax costs is DENIED as moot. The Court ruled on June 21, 2021 that cross-defendant Leoni’s request for attorney fees and costs was denied. (See Exhibit C to Declaration in opposition.)  Defendant shall prepare an order after hearing.
 
 
5.        SCV-267413, County of Sonoma v. Anderson
 
Tentative Ruling: Defendant’s motion to vacate the short cause trial is DROPPED based on the Court’s August 16, 2021 Order granting Defendant’s ex parte application for the same relief. 
 
 
6.        SCV-267453, Baker v. Baker
 
Tentative Ruling: Defendant Bonnie Baker’s motion to set aside a default judgment is DENIED. The request to allow evidence to be presented at the hearing is denied. The Court has not entered a default judgment in this case and in fact, Defendant filed an answer to the complaint on January 22, 2021. To the extent Defendant seeks to set aside the Court’s August 12, 2021 Order granting Plaintiff’s motion for partition and sale of the property, which was issued after Defendant filed this motion on July 2, 2021, that request is DENIED on the grounds Defendant has not sufficiently demonstrated that the Order was entered as a result of her “mistake, inadvertence, surprise, or excusable neglect” and she has not explained how she intends to address any “mistake, inadvertence, surprise, or excusable neglect” in further pleadings.
 
Specifically, the Code states that “[t]he court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.  [Citation.] Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc. §473(b); see also, Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258 [burden is on the moving party to show that mistake was one that “a reasonably prudent person under the same or similar circumstances might have made,” that is, a “mistake anyone could have made.”].) 
 
Here, even assuming that Defendant is seeking to set aside the Court’s August 12, 2021 Order, Defendant’s motion fails for several reasons. To start, Defendant has not sufficiently identified any “mistake, inadvertence, surprise, or excusable neglect” and she has not sufficiently demonstrated that the Order was entered as a result of that “mistake, inadvertence, surprise, or excusable neglect.” Additionally, Defendant has not explained what, if anything, she intends to file to address the issue. The Code specifically states that “[a]pplication for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted…” (Code Civ. Proc. §473(b).) The purpose of this requirement is to “provide the delinquent party with an opportunity to show good faith and readiness to answer the allegations of the complaint…”  (Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 402.) The substance of these requirements was touched on in the opposition. Yet the Court notes no reply was filed.
 
For all these reasons, the motion is denied. 
 
Plaintiff’s counsel shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule of Court 3.1312.
 
           
7&8.  SCV-267587, Felker v. JRK Residential
 
Tentative Ruling: Judge Dollard recuses herself on this matter. The parties will be notified of a new assignment for all purposes and will receive notice of new hearing dates. 
 
9.         SCV-267938, Brennan v. Skvaril, M.D.
 
Tentative Ruling: Attorney Marc E. Grossman’s motion to be relieved as counsel for Plaintiff Elizabeth Brennan is CONTINUED to Wednesday November 10, 2021 at 3:00 P.M. in Department 18. The Court notes that Mr. Grossman has not filed a proof of service demonstrating that the notice of motion, declaration, and proposed order were properly served on Ms. Brennan as required by Rule of Court 3.1362(d). (See, Cal. R. Ct. 3.1300(c) [“Proof of service of the moving papers must be filed no later than five court days before the time appointed for the hearing.”].) 
 
 
10.       SPR-091333, Matter of Pilar D. Guevarra Trust
 
Tentative Ruling:Attorney Elizabeth A. Blair’s motion to be relieved as counsel for Petitioner Mayo Jimenez is GRANTED. Unless oral argument is requested, the Court will sign the proposed order submitted with the motion. 
 
 
 
*This is the end of the Tentative Rulings*
 
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