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Law & Motion Calendar

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.

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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 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. the court day immediately preceding the day of the hearing. 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.

Tentative Rulings

Friday, February 16, 2024

3:00 p.m. 

Law & Motion Tentative Rulings 2-16-2024

ANY REQUESTS FOR ORAL ARGUMENT WILL BE HEARD ON TUESDAY, FEBRUARY 20, AT 3:00 P.M. IN DEPT. 17.

 

1.         SCV-267840, RMB Real Estate Investments 2, LLC v. California Capital Insurance Company

Plaintiff RMB Real Estate Investments 2, LLC’s (“Plaintiff” or “RMB”) motion for prejudgment interest is GRANTED, per Civil Code section 3287, for the amount of $666,063.80.

PROCEDURAL HISTORY

Plaintiff obtained a favorable verdict in the amount of $1,947,235.00 on December 21, 2023, against Defendant California Capital Insurance Company (“Defendant” or “CCIC”). (Motion, 2:5-10.) The jury also awarded attorney’s fees plus prejudgment interest and punitive damages. (Id. at 2:11-16.) Plaintiff now seeks prejudgment interest per Civil Code 3287(a) for the total amount of $666,075.01 against Defendant. (Id. at 2:17-18.)

EVIDENTIARY OBJECTIONS

“All written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion. Objections to specific evidence must be referenced by the objection number in the right column of a separate statement in opposition or reply to a motion, but the objections must not be restated or reargued in the separate statement.” (C.R.C., Rule 3.1354.) A fact within the separate statement being undisputed waives any evidentiary objections to the support for that fact. (Hurley Construction Co. v. State Farm Fire & Casualty Co. (1992) 10 Cal.App.4th 533, 540–541.) Plaintiff bears the burden of showing that there are no triable facts. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)

Defendant’s objection numbers 1 through 4 to Plaintiff’s evidence are OVERRULED.

ANALYSIS

Legal Standard

Civil Code section 3287(a) allows a person who is entitled to recover damages certain to also recover prejudgment interest unless the debtor is prevented by law or by the act of the creditor from paying that debt. Section 3287 mandates an award of prejudgment interest where the amount of plaintiff’s claim can be determined by established market values or by computation. (Wisper Corp. v. California Com. Bank (1996) 49 Cal.App.4th 948, 958.)

Plaintiff cites to Chesapeake Industries v. Togova Enterprises, Inc. (1983) 149 Cal.App.3d 901, which describes two considerations for awarding prejudgment interest. The first consideration is that prejudgment interest has traditionally been denied on unliquidated claims due to the general equitable principle that if a person does not know what sum they owe, they cannot be in default for not failing to pay it. (Chesapeake Industries v. Togova Enterprises, Inc. (1983) 149 Cal.App.3d 901, 906.) The right to prejudgment interest cannot be defeated by setting up an “unliquidated counterclaim as an offset.” (Id. at 907.) The second consideration is “the countervailing policy that injured parties should be compensated for the loss of the use of their money during the period between the assertion of a claim and the rendition of judgment.” (Id. at 906) Courts focus on the debtor’s knowledge of the amount of plaintiff’s claim, specifically, whether defendant actually knew the amount owed or could otherwise compute the amount from reasonably available information. (Id. at 907.)

Moving Papers

Plaintiff argues it provided Defendant with real data to calculate lost income on a monthly basis by October 2020 and Defendant had also available the evidence presented at trial which has clear and ascertainable dates of denial by Defendant for indemnity due and for the “Increased Period of Restoration” or “IPOR.” (Motion, 4:3-10.) Plaintiff contends that the simple interest owed is the total amount multiplied by 0.1 to determine the annual interest, which amount is then divided by 365 to obtain the daily interest. (Id. at 4:21-25.) Plaintiff calculated the IPOR prejudgment interested owed and the interest on the Extended Business Income or Extended Period of Indemnity (“EPOI”), less the payments already made to Plaintiff on the EPOI in the amount of $441,129.00. Plaintiff calculated the prejudgment interest on the IPOR as “$388,280.93” and on the EPOI as “$277,690.50,” for a total sum of “$666,075.01.” The Court has found several miscalculations in the numbers Plaintiff provided, which are discussed in more detail below.

Defendant opposes the prejudgment interest requested stating section 3287 does not permit interest based on the evidence presented. (Opposition, 2:2-5.) Defendant argues there is no basis here to conclude that the amounts owed were liquidated and undisputed at any time before trial, and also that Plaintiff’s own claimed amounts kept changing over time. (Id. at 2:22-:27.) According to Defendant, Plaintiff did not know with certainty what amount had been owed, therefore there could not have been a liquidated amount owed. (Ibid.)

In reply, Plaintiff reaffirms that Defendant has known the actual amount owed or was able to compute the damages based on the data supplied via reasonably available information provided to Defendant. Plaintiff makes reference to the deposition of Lisa Morris, Defendant’s expert, who testified regarding calculation of loss. 

Application

The Court finds a basis under Civil Code section 3287 to award prejudgment interest to Plaintiff based on the damages awarded by the jury. Defendant could have independently and reasonably calculated from information available the amount owed to Plaintiff. As such Plaintiff is entitled to recover prejudgment interest on the amount of damages awarded. However, the Court has found several miscalculations and errors in the moving papers, Judd declaration, and Exhibit G. The various discrepancies are noted in the below table:

Category of Interest

Motion’s

Calculations

Exhibit G –

Interest Calculation

Court’s Calculation

IPOR Jury Award

$1,065,853.00

$1,065,853.00

$1,065,853.00

Annual Interest (IPOR)

$106,558.30

$106,585.30

$106,585.30

Daily Interest (IPOR) (5/1/20 to 12/22/23)

$291.94

$292.01

$292.01

Number of Days

1330

1330

1330

Total Interest (IPOR)

$388,280.93

$388,379.31

$388,373.30

EPOI Jury Award

$881,382.00

$881,382.00

$881,382.00

Annual Interest (EPOI)

$881,138.20

$88,138.20

$88,138.20

Daily Interest (EPOI)

(10/28/20 to 12/22/2023)

$241.47

$241.47

$241.47

Number of Days

1150

1150

1150

Total Interest (EPOI)

$277,690.50

$277,695.70

$277,690.50

Total Sum Interest

$666,075.01

$666,075.01

$666,063.80

Based on the Court’s calculation and supporting evidence, the total amount of prejudgment interest owed is $666,063.80.

CONCLUSION

The motion is GRANTED for the amount of $666,063.80 in prejudgment interest. 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).

 

2.         SCV-269023, Grace v. Rodriguez

Based on defendant’s counsel’s representation and a pending stipulation and order to set aside the default and default judgment, this matter is DROPPED from calendar as moot.

A Case Management Conference hearing is hereby set for June 13, 2024, in Department 17 at 3:00 p.m. A case management statement must be filed no later than fifteen (15) calendar days prior to the hearing. Filing of complete dismissal or Judgment two (2) days before hearing will result in matter being dropped from calendar.

Tentative Rulings are available two (2) court days prior to the hearing on the Court’s website at www.sonoma.courts.ca.gov.

 

3.         SCV-269834, Lucas v. Estate of William Pederson, Deceased

Decedent Plaintiff Cynthia Lucas’s (“Decedent”) unopposed motion for leave to file a Supplemental Complaint per Code of Civil Procedure (“C.C.P.”) section 464(a) is GRANTED.

The event giving rise to this action was a motor vehicle accident that occurred on June 8, 2020, in Santa Rosa, which resulted in the death of Mr. William Pedersen who allegedly failed to make a right turn and drove into Decedent’s vehicle. (Motion, 2:2-8.) Decedent commenced the action against Mr. Pedersen’s estate pursuant to Probate Code sections 550 through 554, but she unexpectedly died on July 19, 2023, so her surviving spouse, Roger Quan, seeks to substitute in per the parties’ stipulation. (Id. at 2:7-12.) 

A plaintiff or defendant may upon motion file a supplemental complaint or answer alleging facts material to the case that occurred after the former complaint or answer. (C.C.P. § 464(a).) After the filing of a supplemental complaint, the Court Clerk shall issue an amended or supplemental summons per section 412.10. (C.C.P. § 464(b).)

The purpose of this motion and the filing of a supplemental complaint is to name Decedent’s surviving spouse, Roger Quan, as successor-in-interest so that he can assert this action against Mr. Pederson’s estate on behalf of Decedent’s estate. The proposed supplemental complaint is attached as Exhibit A to the Declaration of Johann Hall. The parties have stipulated to this, as shown in Exhibit B to the Declaration of Johann Hall, and Defendant has filed a notice of non-opposition as to this motion.

Based on the foregoing, the Court finds no issue with the unopposed motion and GRANTS Roger Quan leave to file the supplemental complaint as successor-in-interest of Decedent’s estate. Moving party 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).

           

4.         SCV-270072, Shockey v. General Motors LLC

Plaintiff Roxanne Shockey’s (“Plaintiff”) motion to compel the deposition of Defendant General Motors LLC’s (“GM”) person most qualified and custodian of records (“PMQ”) is GRANTED, per Code of Civil Procedure (“C.C.P.”) section 2025.450 and sanctions are awarded in the amount of $1,860.00.

PROCEDURAL HISTORY

Plaintiff commenced this action against GM under the Song-Beverly Consumer Warranty Act for alleged defects and nonconformities to warranty regarding Plaintiff’s 2019 Chevrolet Silverado 1500 (“Subject Vehicle”). (Motion, 3:2-13.) Plaintiff served GM with a notice of deposition of its PMQ with a demand for document production. (Id. at 3:14-22.) The topics for examination included: (1) GM’s pre-litigation analysis as to whether the 2019 Chevrolet Silverado 1500 should be repurchased; (2) all repairs and service performed on the 2019 Chevrolet Silverado 1500; (3) GM’s policies and procedures for determining whether a vehicle qualifies for a repurchase or replacement under the Song-Beverly Act; (4) GM’s training for evaluating a pre-litigation repurchase request under the Song-Beverly Act; (5) GM’s response to Plaintiff’s pre-litigation purchase request; and (6) GM’s policies and procedures applied in this case for calculating the repurchase amount for Plaintiff’s Silverado under the Song-Beverly Act. The production request was for: (1) entire pre-litigation file regarding Silverado; (2) pre-litigation communications with Plaintiffs regarding Silverado; (3) policies and procedures for determining whether a vehicle qualifies for a repurchase under the Song-Beverly Act; (4) all training materials provided to employees or call centers agents regarding the handling of pre-litigation consumer requests for a vehicle repurchase in California; (5) all documents evidencing pre-litigation evaluation of whether the Silverado qualified for repurchase under the Song-Beverly Act; (6) all documents reviewed in pre-litigation evaluation of whether the Silverado qualified for repurchase under the Song-Beverly Act; and (7) GM’s policies and procedures for calculating a repurchase under the Song-Beverly Act.

GM served objections to the notice of deposition stating that no witness would be produced on the noticed date, to which Plaintiff responded via a detailed meet and confer letter detailing deficiencies in the objections. (Id. at 4:1-3.) No witness appeared at the deposition, so Plaintiff emailed Defendant requesting alternative deposition dates to be proposed within three days, but Defendant did not respond to the email. (Id. at 4:6-10.) Since then, Plaintiff says it has served “200” identical notices of deposition and requests for alternative dates, yet GM has never produced a PMQ for deposition. Thus, Plaintiff has filed this motion and Defendant has opposed.

ANALYSIS

Legal Standard

C.C.P. section 2025.450(a), provides: “If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, 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.” On non-appearance of a deponent, the moving party shall attempt to meet and confer in good faith regarding the non-appearance. (Leko v. Cornerstone Building Inspection Service (2001) 86 Cal.App.4th 1109, 1124.) The motion “shall set forth specific facts showing good cause justifying the production for inspection of any document or tangible thing described in the deposition notice.” (C.C.P. § 2025.450(b).)

Sanctions are warranted and mandatory when a motion under subdivision (a) is granted, in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, 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. (C.C.P. § 2025.450(c)(1). “…Where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.’” (Creed-21 v. City of Wildomar (2017) 18 Cal. App. 5th 690, 702.)

Moving Papers

Plaintiff seeks to compel the deposition of GM’s PMQ per C.C.P. section 2025.450 for failure to produce a witness on multiple occasions and failure to cooperate in providing alternative dates for setting a deposition despite numerous requests since July of 2023. Plaintiff seeks sanctions in the motion in the amount of “$2,310.00” but only an award of $1,860.00 is supported in the accompanying declaration by counsel. (Declaration of Thomas, ¶¶ 14-16.)

GM argues the motion is procedurally defective because Plaintiff has failed to meet and confer in good faith regarding this motion or to address the objections or contested categories informally before filing this motion. (Opposition, 1:3-9.) GM seeks to narrow these topics to warranties applicable to the Silverado, documents reflecting repairs and service made to the Silverado, repairs to the vehicle reflected in the Global Warranty History Report, communications between GM and Plaintiff and other persons concerning Plaintiff’s Silverado, and whether GM received a request from Plaintiff to repurchase the vehicle and, if so, how GM responded to the request. (Opposition, 1:14-22.) GM requests that the Court deny the motion and sanctions requested.

In reply, Plaintiff denies that there was no effort to meet and confer because Plaintiff continually met and conferred with Defendant by phone and email regarding the scheduling of the PMQ deposition and substance of Defendant’s objections. GM failed to ever provide any potential deposition dates and failed to produce a PMQ pursuant to any of the properly noticed depositions. Plaintiff also argues that the topics requested are relevant to the subject matter of this action.

Application

Plaintiff has served numerous notices of deposition for GM’s PMQ and the witness has failed to appear for any of them. GM has filed general objections to the deposition notices and topics selected, but otherwise agreed in the objection to produce a witness at a mutually agreeable time and place to discuss relevant and nonprivileged aspects of the notice. Regardless, GM has never actually produced any PMQ witness for the noticed depositions since July of 2023. The Court finds the motion and sanctions warranted per section C.C.P. section 2025.450.

CONCLUSION

Based on the foregoing, Plaintiff’s motion to compel GM’s PMQ deposition is GRANTED, and sanctions are awarded in the amount of $1,860.00. Moving party 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).

 

5.         SCV-271325, Stonefield Condominium Assoc. v. DeGrange Properties, LLC

Defendant DeGrange Properties, LLC (“Defendant”) moves for attorneys’ fees in the amount of $29,639.52 for Defendant’s counsel representation throughout this matter, as well as $675.56 for court costs and fees incurred. The motion is GRANTED per Code of Civil Procedure (“C.C.P.”) sections 1032(a)(4) and 1033.5(a)(10)(B).

PROCEDURAL HISTORY

Plaintiff Stonefield Condominium Assoc. (“Plaintiff”) brought this action against Defendant for violations of Sonoma County Municipal Code Chapter 13 Section 1, private nuisance, and public nuisance, after Defendant cleared a certain number of dead and dying trees that had been burned during the Tubbs fire through Defendant’s lands pursuant to the directions from California’s Department of Forestry and local officials. (Motion, 2:15-24.)

Ultimately, without any signed settlement agreement, Plaintiff filed a request for dismissal with prejudice after Plaintiff was allowed to enter Defendant’s property for the limited purpose of removing some dead trees and brush. (Motion, 3:27-28, 4:1-9.)

Believing that this dismissal with prejudice resulted in no relief to either party, Defendant has filed this instant motion for attorneys’ fees as the “prevailing party” in the action.

ANALYSIS

Legal Standard

Defendant brings this motion per Sonoma County Ordinance No. 13, Section I, Chapter 13A-8, which provides that “in any action brought pursuant to this section, the prevailing party shall be entitled to reasonable attorney’s fees and costs pursuant to order of the court.” In California, the prevailing party is “the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant...” (C.C.P. § 1032(a)(4). [Emphasis added.]) Under C.C.P. section 1032, attorney's fees are an allowable cost when authorized by contract, statute, or law. (C.C.P. § 1033.5(a)(10)(B).) In general, the “prevailing party” is entitled as a matter of right to recover costs of suit in any action or proceeding. (Santisas v. Goodin (1998) 17 Cal.4th 599, 606.)

Moving Papers

Defendant, as a prevailing party, moves for attorneys’ fees and costs for his counsel’s legal representation throughout this matter and for the preparation of this motion. Defendant presents that a Lodestar Calculation is appropriate here to determine fees. (Motion, 6:20-28, 7:1-9.) Defendant requests a total of $28,963.96 in fees, supported by attached declarations and invoices. The fees are broken down as follows:

  1. Attorney Scott A. Lewis’s work of 25.4 hours at a rate of $450/hour.
  2. Attorney Scott A. Lewis’s work of 4 anticipated hours for motion’s reply and hearing.
  3. Attorney Martin L. Hirsch’s work of 3.4 hours at a rate of $425/hour.
  4. Attorney Kelsey O’Rourke’s work of 0.3 hours at a rate of $350/hour.
  5. Attorney Regan V. Masi’s work of 22.43 hours at a rate of $325/hour.
  6. Paralegal Ginny Wilkes’ work of 36.3 hours at a rate of $190/hour.

Defendant also requests $675.56 of court costs incurred in filing fees, including for this motion.

In opposition, Plaintiff argues that Defendant is not the prevailing party per section 1032 of this matter just because Plaintiff dismissed the complaint with prejudice, because prior to the dismissal, Plaintiff’s litigation objections were met with Defendant’s cooperation. (Opposition, 1:23-28, 2:1-3.)

In reply, Defendant argues that there was no settlement here and Plaintiff failed to achieve any of its litigation goals because Plaintiff ultimately removed trees and debris at its own expense rather than at Defendant’s expense, which was what was sought in the Complaint.

Application

The definition of a prevailing party in C.C.P. section 1032(a)(4) includes a defendant in a case where neither party obtained relief, which the Court finds applies to Defendant considering Plaintiff’s dismissal with prejudice of the Complaint. For that reason, Defendant is entitled to attorneys’ fees and costs as requested, per statute.

CONCLUSION

Defendant’s motion for attorneys’ fees in the amount of $29,639.52 and $675.56 for costs and fees is GRANTED per Code of Civil Procedure (“C.C.P.”) sections 1032(a)(4) and 1033.5(a)(10)(B). Defendant 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).

 

6.         SCV-271677, Sanchez v. United Services Automobile Association

Defendant United Services Automobile Association’s (“USAA”) application for an order of this Court permitting counsel John A. Little, Jr., to appear as counsel pro hac vice is GRANTED pursuant to California Rules of Court, Rule 9.40. Unless oral argument is requested, the Court will sign the proposed orders lodged with the applications. No appearance required. 

 

7.         SCV-272317, Doe v. Crews

Plaintiff John Doe’s (“Plaintiff”) motion for relief from dismissal is GRANTED per Code of Civil Procedure (“C.C.P.”) section 473(b).

PROCEDURAL HISTORY

Plaintiff filed a complaint in this action against Defendants Roman Catholic Bishop of Santa Rosa, Hanna Boys Center, and John Crews (together “Defendants”) alleging causes of action for sexual abuse against Plaintiff when he was a minor. (Motion, 1:21-25.) After Defendant Roman Catholic Bishop of Santa Rosa filed for bankruptcy protection, a case management conference was set in this matter for June 1, 2023, which Plaintiff failed to appear at because Plaintiff’s counsel failed to calendar the hearing. (Id. at 1:26-28, 2:1-2.) The Court set an Order to Show Cause hearing for July 13, 2023, for which Plaintiff’s counsel filed a case management statement, but failed to appear yet again for the hearing. (Id. at 2:2-7.) Counsel learned of the final Order to Show Cause/Dismissal hearing set for September 21, 2023, and claims that they tried to appear by Zoom, but were met with a notice that the matters had been moved to a different department that directed Counsel to a different Zoom link which Counsel joined. (Motion, 2:8-11, 2:12-15.) Counsel joined the second Zoom link, but no one entered it. (Id. at 2:15-20.) Afterwards, Counsel called the clerk’s office, but it was closed, so as a result the Court dismissed the matter without prejudice. (Ibid.) Plaintiff now moves for the Court to grant relief from this dismissal.

ANALYSIS

Courts shall grant relief from a judgment “whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect” (C.C.P. § 473(b).)  In response to such an application for relief, a trial court shall “vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.” (Ibid.) The affidavit did not need to disclose the reasons for the mistake, inadvertence, surprise, or neglect. (Martin Potts & Assocs., Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 435–36.)

Plaintiff timely moves for the Court to grant relief from the dismissal without prejudice for Plaintiff’s failure to appear at multiple hearings due to the mistakes of Plaintiff’s counsel to calendar the hearings and mistakes made in trying to appear at the Order to Show Cause/Dismissal hearing set September 21, 2023. Plaintiff requests this relief because as the statute of limitations on Plaintiff’s causes of action have been closed by legislation, Plaintiff will be barred from bringing them in the future if relief were not granted.

The Court finds that Plaintiff has met his burden of showing that the dismissal entered against him was caused by his attorney’s mistake, inadvertence, or neglect and will grant the relief.

CONCLUSION

Based on the foregoing, the motion for relief from dismissal is GRANTED, vacating the dismissal without prejudice entered September 21, 2023. Unless oral argument is requested, the Court will sign the proposed order lodged with the motion.

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