Tentative Rulings and Resolution Review Hearings February 13, 2018 Department 3 This Court does not follow the procedures described in Rules of Court, Rule 3.1308(a). Tentative rulings appear on the calendar outside the court department on the date of the hearing, pursuant to California Rule of Court, Rule 3.1308(b)(1). As a courtesy to counsel, the court also posts tentative rulings no less than 12 hours in advance of the time set for hearing. The rulings are posted on the court’s website (www.shasta.courts.ca.gov) and are available by clicking on the “Tentative Rulings” link. A party is not required to give notice to the Court or other parties of intent to appear to present argument. ****************************************************************************************** 8:30 a.m. – Law & Motion ****************************************************************************************** FRUITS, ET AL VS. MEYERS, ET AL Case Number: 187269 Tentative Ruling on Motion to Sever: This motion was withdrawn by the moving party on February 8, 2018. No appearance is necessary on today’s calendar. HUERTAS VS. 99 CENT ONLY STORES, LLC Case Number: 184991 Tentative Ruling on Motion for Order: (1) Compelling Compliance with Subpoenas; (2) Prohibiting Plaintiff from Interfering with Discovery; and (3) Imposing Sanctions against Deponents and Plaintiffs: The present motion is unopposed. Defendant, 99 Cents Only Stores, LLC seeks an order compelling nonparties, Gustavo Lazo and Lazo Transportation to turn over documents requested in a business record subpoena and to appear for their depositions. Defendant also requests sanctions against Gustavo Lazo and Lazo Transportation. Finally, Defendant seeks a protective order and sanctions against Plaintiff, Juan Jose Huertas, for interfering with discovery. As a procedural matter there is no proof of service on Mr. Lazo or Lazo Transportation (herein collectively “Lazo”). Defendant states that Lazo’s counsel has agreed to accept service on behalf of his client in lieu of personal service. Defense counsel’s declaration makes this statement and includes an email where defense counsel thanks Lazo’s counsel for accepting service. There is no Notice and Acknowledgment of Receipt filed. There is nothing in writing from Lazo’s counsel agreeing to accept service. Even if a writing existed, Lazo has never appeared and therefore his counsel is not the attorney of record for Lazo and able to waive service. Based on the foregoing, there is no notice to Lazo and issuing any order would violate CCP § 1005 and basic notions of due process. The Court cannot, due to the service issue, provide a ruling on the merits until Lazo has been provided a proper opportunity to oppose the motion. Since the service issue is curable Defendant will be given an opportunity to cure. As noted, infra, the Court is continuing this matter for that purpose. As for Defendant’s request for a protective order and sanctions against Plaintiff, this request is denied. These issues are barely addressed in Defendant’s memorandum and arise from an allegation that Plaintiff requested Lazo to disobey the subpoenas. Defendant’s memorandum states “Plaintiff has reportedly personally obstructed and interfered….” This information is insufficient to establish good cause to issue a protective order or 1
sanctions. The Court will not issue this relief without specific evidence of interference. “Reportedly” interfering is wholly insufficient. The motion for a protective order and for sanctions against Plaintiff is DENIED. The motion to compel and for sanctions against Lazo is continued to Monday, March 26, 2018 at 8:30 a.m. in Department 3. For the Court to proceed on the merits it will requires personal service on Gustavo Lazo and Lazo Transportation or in the alternative a Notice and Acknowledgement of Receipt signed by Gustavo Lazo on behalf of both non-party deponents. ORION ENERGY SYSTEMS, INC. VS. KWAKE Case Number: 186447 Tentative Ruling on Citation to Appear: On August 21, 2017, Robert Daniel Kwake (the “Judgment Debtor”) was required to appear for a debtor examination by order of the Court. He failed to appear which resulted in the Court issuing a Bench Warrant. Judgment Debtor was cited to appear at today’s hearing by law enforcement pursuant to the Bench Warrant. Judgment Debtor is ordered to appear. PILOT FINANCE, INC. VS. CONLON Case Number: 17CV569 Tentative Ruling on Application for Judgment Debtor Examination: Judgment Creditor, Pilot Finance, Inc. seeks to conduct a debtor examination of Judgment Debtor, John P. Conlon. The Court issued an Order to Appear for Examination on December 15, 2017 which set the debtor examination for today, February 13, 2018. CCP § 708.110 requires 10 calendar days personal service to be made on the Judgment Debtor. No proof of personal service has been filed. On or before the date of this hearing, the Judgment Creditor is to file with the Court a proof of service indicating timely service was affected on the Judgment Debtor. Otherwise, the debtor examinations will be dropped from the calendar. SHILOH PARK, LP VS. RAS CONTRACTORS Case Number: 188751 Tentative Ruling on Petition for Removal of Mechanic’s Lien: Petitioner, Shiloh Park, LP seeks the issuance of an Order to Show Cause against Respondent, RAS Contractors, Inc. to establish why the mechanic’s lien should not be stricken pursuant to CCP § 765.010. Petitioner is also seeking attorney’s fees and civil penalties. “A person shall not file or record…a…lien against another person knowing that it is false, with the intent to harass the person or entity….” CCP § 765.010(b). When a lien is filed in violation of CCP § 765.010, the person whose property is subject to the lien may petition the superior court for an order directing the lien claimant to appear at hearing and show cause why the lien should not be stricken and other relief granted. CCP § 765.010. Attorney’s fees are recoverable for a petition of this nature. CCP § 765.030. A civil penalty of $5,000 is available if the lien is stricken. CCP § 765.040. The Court finds that Petitioner has established a prima facie case to issue the requested Order to Show Cause. Respondent’s opposition provides no authority that this type of petition must be abated while a separate action is pending to foreclose on the mechanic’s lien. The Court intends on consolidating this action and RAS Contractors, Inc. v. Shiloh Park (Shasta County Case No. 188924) in Department 3 to avoid any duplicative efforts. This case would be designated as the lead case. The hearing on the Order to Show Cause is special set for Tuesday, October 30, 2018 at 8:45 in Department 3. The Court will hear from the parties related to the consolidation and if necessary set a hearing date to permit the parties to provide briefing on the issue of 2
consolidation.
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