Law and Motion Calendar – Department Nine (8:30 a.m.)
February 26, 2015
1. GUARDIANSHIP OF MICHELLE D. PP-20140187
Petition to Appoint Guardian.
Family friends of the proposed ward petition to be appointed co-guardians of the person of
the proposed ward. The verified petition contends that parental custody would be detrimental
to the minor and establishment of a guardianship is necessary or convenient.
“Upon hearing of the petition, if it appears necessary or convenient, the court may appoint a
guardian of the person or estate of the proposed ward or both.” (Probate Code, § 1514(a).)
The court applies a clear and convincing evidence standard of proof to it’s determinations of
whether or not it appears necessary or convenient to appoint a guardian, whether or not
granting custody to a parent would be detrimental to the child, and whether or not granting
custody to the nonparent is required to serve the best interest of the child. (Guardianship of
Jenna G. (1998) 63 Cal.App.4th 387, 394.)
The petitioners filed the mandated Child Information Attachment form for the Probate
Guardianship petition (Form GC-210(CA)). The petitioners executed the Duties of Guardian
and Acknowledgment of Receipt (Form GC-248).
The petitioners filed confidential Guardian Screening Forms (Form GC-212). However, they
failed to explain their responses to question numbers 10, 14 and 15 by attachment to the
forms. This needs to be remedied.
Notice
The minor’s mother executed the portion of Judicial Council Form GC-211 consenting to
appointment of the proposed guardian and waiving notice of this proceeding, which was filed
on November 17, 2014. The minor’s father executed the portion of Judicial Council Form GC211 consenting to appointment of the proposed guardian and waiving notice of this proceeding,
which was filed on December 23, 2014.
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Law and Motion Calendar – Department Nine (8:30 a.m.)
February 26, 2015
The court notes that there is no proof of service of notice of the hearing and a copy of the
petition on the paternal and maternal grandparents. The verified petition lists the maternal
grandfather as deceased. The minor’s paternal grandparents and maternal grandmother must
be served with notice of the hearing and a copy of the petition by mail. (Probate Code, §§
1511(a) and 1511(c).) While the whereabouts of the paternal grandparents is listed as
“unknown” in the Child Information Attachment (Form GC-210(CA).) and the section related to
the identity of the maternal grandmother and her address was left blank on that form,
petitioners have not provided sufficient information by declaration from which the court can
determine whether or not service of notice of the hearing and copies of the petition to these
interested persons should be dispensed with because those persons cannot with reasonable
diligence be given the notice, or the giving of the notice would be contrary to the interest of
justice. (Probate Code, § 1511(g) and Rules of Court, Rule 7.52.) The due diligence
declarations filed on January 14, 2015 are insufficient in that petitioner has not stated any facts
in those declarations detailing exactly what attempts she made to locate the maternal
grandmother and paternal grandparents. She only states that the details of her attempts to
check directory assistance, telephone directories and check with friends and relatives are:
“UNSUCCESSFUL”. That does not provide the court with any facts as to what she did to check
phone directories, directory assistance and friends and relatives.
Absent sufficient declarations of due diligent attempts to locate and serve, the maternal
grandmother and paternal grandparents must be served by mail with notice of the hearing and
a copy of the petition. (Probate Code, §§ 1511(a) and 1511(c).) The court can not reach the
merits of the petition absent proof of adequate service on the interested persons.
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Law and Motion Calendar – Department Nine (8:30 a.m.)
February 26, 2015
Reports
DOJ live scan reports concerning the petitioners are not in the court’s file and the
Department of Social Services report state that at the time the report was prepared, the
petitioners planned to complete the live scan during the afternoon of January 2, 2015.
The report from the Department of Social Services recommends the petition be granted.
The minor’s mother appeared at the January 14, 2015 hearing and asserted a Code of Civil
Procedure, § 170.6 peremptory challenge to Judge Brooks and the matter was reassigned to
Judge Stracener.
TENTATIVE RULING # 1: APPEARANCES ARE REQUIRED AT 8:30 A.M. ON THURSDAY,
FEBRUARY 26, 2015 IN DEPARTMENT NINE.
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Law and Motion Calendar – Department Nine (8:30 a.m.)
February 26, 2015
2. LAGOMARSINO v. DUMONT PC-20080287
Judgment Debtor Examinations.
TENTATIVE RULING # 2: THE PERSONAL APPEARANCES OF THE DEBTORS ARE
REQUIRED AT 8:30 A.M., THURSDAY, FEBRUARY 26, 2015 IN DEPARTMENT NINE,
PROVIDED PROOFS OF SERVICE OF THE ORDERS TO APPEAR FOR EXAMINATION
ARE FILED PRIOR TO THE HEARING SHOWING THAT PERSONAL SERVICES ON THE
DEBTORS WERE EFFECTED NO LATER THAN TEN DAYS PRIOR TO THE HEARING
DATE (CCP, § 708.110(d)). IF THE APPROPRIATE PROOFS OF SERVICE ARE NOT
FILED, NO EXAMINATIONS WILL TAKE PLACE.
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Law and Motion Calendar – Department Nine (8:30 a.m.)
February 26, 2015
3. CHADOR REALTY v. MAHAN PC-20100313
Third Party Examination.
TENTATIVE RULING # 3: THE PERSONAL APPEARANCE OF THE THIRD PARTY IS
REQUIRED AT 8:30 A.M., THURSDAY, FEBRUARY 26, 2015 IN DEPARTMENT NINE.
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Law and Motion Calendar – Department Nine (8:30 a.m.)
February 26, 2015
4. DIAMOND v. OSANNA PC-20120485
Judgment Debtor Examination.
TENTATIVE RULING # 4: THE PERSONAL APPEARANCE OF THE DEBTOR IS
REQUIRED AT 8:30 A.M., THURSDAY, FEBRUARY 26, 2015 IN DEPARTMENT NINE.
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Law and Motion Calendar – Department Nine (8:30 a.m.)
February 26, 2015
5. MATTER OF THOMPSON PC-20150007
OSC Re: Name Change.
TENTATIVE RULING # 5: ABSENT OBJECTIONS, THE PETITION IS GRANTED.
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Law and Motion Calendar – Department Nine (8:30 a.m.)
February 26, 2015
6. MATTER OF HALE PC-20150026
OSC Re: Name Change.
TENTATIVE RULING # 6: ABSENT OBJECTIONS, THE PETITION IS GRANTED.
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Law and Motion Calendar – Department Nine (8:30 a.m.)
February 26, 2015
7. NEVES v. DELAWARE IND. TRUST PC-20060653
OSC Re: Why Order of Sale of Dwelling Should Not be Issued.
Plaintiff as public administrator of the Estate of Melvin Sherman filed a partition action on
December 19, 2006. The case settled on April 6, 2007 at the Mandatory Settlement
Conference. A judicially supervised written settlement agreement under Code of Civil
Procedure, § 664.6 executed by the parties is in the court’s file. On October 23, 2007 judgment
was entered on the settlement agreement wherein defendant Dorothy Mae Wooden as trustee
of the Sherman Trust was ordered to pay $15,000 to the Public Administrator to be used to pay
for administration expenses of the Estate of Melvin Sherman and in return, upon receipt of the
$15,000 payment, the Public Administrator was to quitclaim any interest of the estate in the
real property to Dorothy Mae Wooden as trustee of the Sherman Trust.
Upon application of the judgment creditor, the court issued an OSC re: why an order for
sale of the dwelling should not be made in order to pay off the judgment debt, including
accrued interest.
The amended proofs of service filed on January 6, 2015 declare that on December 22,
2014 the OSC, memorandum of points and authorities, and order upon good cause were
posted on the subject premises on a post next to the driveway and occupant David Kruger was
personally served the documents. Another proof of service declares that on December 17,
2014 the OSC, memorandum of points and authorities, and order upon good cause were
served by mail to the judgment debtors/defendants.
On January 16, 2015 the court received correspondence from defendant Alfred Sherman in
response to the motion without any declaration proving it was served on plaintiff; and the
document is not in the form mandated by the rules of court for filing as an opposition in that it
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February 26, 2015
lacks a caption page (See Rules of Court, Rules 2.111 and 2.118.). Therefore, the court can
not and did not consider it as an opposition to the motion.
“(a) Except as provided in subdivision (b), the interest of a natural person in a dwelling may
not be sold under this division to enforce a money judgment except pursuant to a court order
for sale obtained under this article and the dwelling exemption shall be determined under this
article.” (Code of Civil Procedure, § 704.740(a).)
“(1) Burden of Proof. If the county tax assessor's records indicate the existence of a current
homeowner's exemption or disabled veteran's exemption on the dwelling claimed by the
judgment debtor or the debtor's spouse, the judgment creditor has the burden of proof that the
dwelling is not a homestead. If the records indicate that there is not a current homeowner's
exemption or a disabled veteran's exemption, the burden of proof that the dwelling is a
homestead is on the person claiming a homestead. Where the application states the amount of
the homestead exemption, the person claiming the exemption has the burden of proving that
the amount of the exemption is other than the amount stated in the application. (C.C.P.
704.780(a).) (See Rutter Group, 2 Enforcing Judgments and Debts §6:777 et seq.; C.E.B., 2
Debt Collection Practice 2d, §9.93.) ¶ (2) Determination of Exemption. The court must
determine if the dwelling is exempt and, if so, the amount of the exemption and the fair market
value of the dwelling. (C.C.P. 704.780(b).) To assist in determining the fair market value of the
dwelling, the court may appoint a qualified appraiser. Where an appraiser is appointed, the
court must determine reasonable compensation for the appraisal. (C.C.P. 704.780(d).) ¶ (3)
Order for Sale. As originally enacted, C.C.P. 704.780(b) simply provided that the court must
make an order for sale of the dwelling. In Abbett Elec. Corp. v. Storek (1994) 22 C.A.4th 1460,
1470, 27 C.R.2d 845, the court held that this provision imposed a mandatory duty on the trial
court to issue an order for sale on the determination that a dwelling was exempt, regardless of
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Law and Motion Calendar – Department Nine (8:30 a.m.)
February 26, 2015
the court's determination of the dwelling's value. In response to Abbett, the statute was
amended to provide that an order for sale must be made unless the court determines that the
sale would not be likely to produce a bid sufficient to satisfy any part of the amount due on the
judgment under the minimum bid requirements of C.C.P. 704.800 (see infra, §224). (C.C.P.
704.780(b); C.J.E.R., Judges Benchbook: Civil Proceedings—After Trial §6.63.) ¶ The order
must specify the amount of the proceeds of the sale to be distributed to each person having a
lien or encumbrance on the dwelling, and the names and addresses of those persons. Except
as otherwise provided by C.C.P. 704.710 et seq., the sale is governed by the general
procedure governing execution sales (C.C.P. 701.510 et seq., supra, §144 et seq.). (C.C.P.
704.780(b); see Bratcher v. Buckner (2001) 90 C.A.4th 1177, 1190, 109 C.R.2d 534 [failure of
trial court's sale order to specify amount of proceeds to be distributed to persons with liens,
with their names and addresses, was mere technical defect not requiring reversal and could be
remedied by remand with instructions to modify order].) ¶ If the court determines that the
dwelling is not exempt, it must order a sale in the manner provided by C.C.P. 701.510 et seq.
(C.C.P. 704.780(b).) However, despite this mandatory language, the court may<<* p.252>>
refuse to issue an order of sale for a nonexempt dwelling if to do so will interfere with the family
law department's continuing jurisdiction over the division of community property interests in the
dwelling. (See In re Marriage of Schenck (1991) 228 C.A.3d 1474, 1482, 279 C.R. 651, 11
Summary (10th), Husband and Wife, §69.) ¶ The fee for issuing an order of sale is $20.
(Govt.C. 70626(b)(1).) ¶ (4) Transmittal of Order. The court clerk must transmit a certified copy
of the order to the levying officer and, if the court making the order is not the court in which the
judgment was entered, to the clerk of the court in which the judgment was entered. (C.C.P.
704.780(c).)” (Emphasis added.) (8 Witkin, California Procedure (5th ed 2008) Enforcement of
Judgment, § 222, pages 250-252.)
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Law and Motion Calendar – Department Nine (8:30 a.m.)
February 26, 2015
Counsel declares the following: judgment was entered on October 23, 2007 in the amount
of $15,000; the judgment has not been wholly or partially satisfied by the judgment debtors;
and there is accrued post-judgment interest in the amount to $10,516.44.
The verified application for order of sale states: the Sheriff levied on the subject real
property on November 6, 2014 under a writ of execution issued on October 28, 2014; the
subject property is a dwelling of the judgment debtors and an adjacent parcel commonly known
as 4601 Edgewater Drive, Greenwood, California; the records of the county assessor indicate
that there is neither a current homeowners’ exemption, nor a disabled veteran’s exemption for
the subject dwelling; upon information and belief, there is no homestead, because a review of
the county recorder’s records only indicate that the Dorothy Sherman Wooden Trust, Dorothy
Mae Wooden, Trustee recorded five documents purporting to be homestead declarations in
2005, none of which meet the statutory requirements for a homestead declaration as set forth
in Code of Civil Procedure, § 704.910; the dwelling is not a homestead, because it is not the
principal residence of any of the judgment debtors or any of their spouses; and there is a tax
lien recorded by the El Dorado County Tax Collector against the subject property in the amount
of $44,200.
“A dwelling in which an owner or spouse of an owner resides may be selected as a
declared homestead pursuant to this article by recording a homestead declaration in the office
of the county recorder of the county where the dwelling is located. From and after the time of
recording, the dwelling is a declared homestead for the purposes of this article.” (Code of Civil
Procedure, § 704.920.)
“(a) A homestead declaration recorded pursuant to this article shall contain all of the
following: ¶ (1) The name of the declared homestead owner. A husband and wife both may be
named as declared homestead owners in the same homestead declaration if each owns an
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Law and Motion Calendar – Department Nine (8:30 a.m.)
February 26, 2015
interest in the dwelling selected as the declared homestead. ¶ (2) A description of the declared
homestead. ¶ (3) A statement that the declared homestead is the principal dwelling of the
declared homestead owner or such person's spouse, and that the declared homestead owner
or such person's spouse resides in the declared homestead on the date the homestead
declaration is recorded. ¶ (b) The homestead declaration shall be executed and acknowledged
in the manner of an acknowledgment of a conveyance of real property by at least one of the
following persons: ¶ (1) The declared homestead owner. ¶ (2) The spouse of the declared
homestead owner. ¶ (3) The guardian or conservator of the person or estate of either of the
persons listed in paragraph (1) or (2). The guardian or conservator may execute, acknowledge,
and record a homestead declaration without the need to obtain court authorization. ¶ (4) A
person acting under a power of attorney or otherwise authorized to act on behalf of a person
listed in paragraph (1) or (2). ¶ (c) The homestead declaration shall include a statement that
the facts stated in the homestead declaration are known to be true as of the personal
knowledge of the person executing and acknowledging the homestead declaration. If the
homestead declaration is executed and acknowledged by a person listed in paragraph (3) or
(4) of subdivision (b), it shall also contain a statement that the person has authority to so act on
behalf of the declared homestead owner or the spouse of the declared homestead owner and
the source of the person's authority.” (Code of Civil Procedure, § 704.930.)
The verified application’s statement that the five purported homestead declarations do not
meet the statutory requirements for a homestead declaration is merely a conclusion of law
premised upon the Public Administrator’s review of the documents. Authenticated copies of the
recorded documents are not before the court for review and determination as to whether or not
they are sufficient to constitute a homestead declaration. At this point, there is an insufficient
showing that the face of the records indicate that there is no homestead exemption declaration.
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Law and Motion Calendar – Department Nine (8:30 a.m.)
February 26, 2015
Absent additional evidence, the court has insufficient evidence to make any finding that there is
no exemption.
TENTATIVE RULING # 7: APPEARANCES ARE REQUIRED AT 8:30 A.M. ON THURSDAY,
FEBRUARY 26, 2015 IN DEPARTMENT NINE.
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Law and Motion Calendar – Department Nine (8:30 a.m.)
February 26, 2015
8. RAY v. WESTWOOD HOMES, INC. PC-20110475
(1) Jeff Bartz’s and JL Bartz Construction Co., Inc.’s Motion for Determination of Good
Faith Settlement.
(2) Westwood Homes, Inc.’s and Westwood Promontory, Ltd’s Motion Contesting
Custom Masonry’s Application for Good Faith Settlement.
(3) Riboni Painting’s Motion for Determination of Good Faith Settlement.
(4) Westwood Homes, Inc.’s and Westwood Promontory, Ltd’s Motion Contesting
Northstar Plumbing’s Application for Good Faith Settlement.
(5) Westwood Homes, Inc.’s and Westwood Promontory, Ltd’s Motion Contesting
Sherman Loehr Custom Tile’s Application for Good Faith Settlement.
TENTATIVE RULING # 8: THESE MATTERS ARE CONTINUED TO 8:30 A.M. ON
THURSDAY, APRIL 2, 2015 IN DEPARTMENT NINE.
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Law and Motion Calendar – Department Nine (8:30 a.m.)
February 26, 2015
9. GONZALES v. LMD SACTO 100, LTD PC-20120228
LMD SACTO 100, LLC’s Motion to Tax Beutler Corp.’s Memorandum of Costs.
TENTATIVE RULING # 9: THIS MATTER IS CONTINUED TO 8:30 A.M. ON THURSDAY,
APRIL 9, 2015 IN DEPARTMENT NINE.
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Law and Motion Calendar – Department Nine (8:30 a.m.)
February 26, 2015
10. BIAMA v. BROWN PC-20120366
Hearing Re: Claim of Exemption.
TENTATIVE RULING # 10: THIS MATTER IS CONTINUED TO 8:30 A.M. ON THURSDAY,
MARCH 26, 2015 IN DEPARTMENT NINE.
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Law and Motion Calendar – Department Nine (8:30 a.m.)
February 26, 2015
11. PRIDE ACQUISITIONS, LLC v. MORA PC-20120649
Motion to Substitute Party Plaintiff.
Pride Acquisitions, LLC (Pride Acquisitions) moves to substitute the name of the party
plaintiff to reflect the current real party in interest. The authorized representative for Unifund
CCR, LLC (Unifund) declares: after commencement of the instant action, Unifund was
assigned all rights to the defendant’s account, including the right to conduct litigation in its own
name; and Unifund is the real party in interest and Pride Acquisitions is merely a nominal party.
Attached to the declaration is Exhibit A, which consists of the following documents: a bill of
sale of certain credit card account receivables, judgments, or evidences of debt by Chase
Bank to Pride Acquisitions, LLC on April 25, 2011; a bill of sale and assignment of accounts,
which states that on September 30, 2013 Pride Acquisitions sold and assigned to Pilot
Receivables Management, LLC all right, title and interest in certain accounts as identified in an
attached account schedule; and an assignment dated September 9, 2013, which provides that
Pilot Receivables Management, LLC transferred and assigned to Unifund all assignor’s rights
in the receivables for the purpose of collection only, including conducting litigation in the
assignee’s name for those receivables.
The proof of service declares that on December 16, 2014 notice of the hearing and the
moving papers were served by mail to defendant’s counsel. There is no opposition to the
motion in the court’s file.
“The court may, in furtherance of justice, and on any terms as may be proper, allow a party
to amend any pleading or proceeding by adding or striking out the name of any party, or by
correcting a mistake in the name of a party, or a mistake in any other respect…” (Code of Civil
Procedure, § 473(a)(1).)
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Law and Motion Calendar – Department Nine (8:30 a.m.)
February 26, 2015
“Amendments to complaints under Code of Civil Procedure section 473, subdivision (a), are
liberally allowed to substitute in plaintiffs with standing for original plaintiffs without standing.
(Cloud, supra, at pp. 1004–1011, 79 Cal.Rptr.2d 544; Klopstock v. Superior Court (1941) 17
Cal.2d 13, 19–21, 108 P.2d 906 (Klopstock).)” (CashCall, Inc. v. Superior Court (2008) 159
Cal.App.4th 273, 287.)
The court has concerns about the proof of assignment of the subject account for collection
purposes to Unifund. There is no documentation attached to the Chase Bank assignment to
Pride Acquisitions and the Pride Acquisitions assignment to Pilot Receivables Management,
LLC that specifically names the subject account as being assigned and transferred; the Pilot
Receivables Management, LLC assignment to Unifund predates the purported assignment of
defendant’s account to Pilot Receivables Management, LLC; and the assignment to Unifund
does not specifically identify the subject account as assigned and transferred. This needs to be
clarified. Should the matter not be clarified, the court is inclined to deny the motion without
prejudice.
The court ordered appearances at the January 22, 2015 hearing and counsel failed to
appear. The matter was continued to this date and the January 22, 2015 minute order served
by mail to the counsels of record for the parties on January 23, 2015.
TENTATIVE RULING # 11: APPEARANCES ARE REQUIRED AT 8:30 A.M. ON
THURSDAY, FEBRUARY 26, 2015 IN DEPARTMENT NINE.
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Law and Motion Calendar – Department Nine (8:30 a.m.)
February 26, 2015
12. BRAGG v. BANK OF AMERICA PC-20130271
Defendants Bank of America’s and Recontrust Co.’s Motion for Terminating Sanction.
TENTATIVE RULING # 12: THIS MATTER IS CONTINUED TO 8:30 A.M. ON THURSDAY,
APRIL 2, 2015 IN DEPARTMENT NINE.
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Law and Motion Calendar – Department Nine (8:30 a.m.)
February 26, 2015
13. CURRY v. DAUGHERTY PC-20130538
Motion to Continue the DRC, MSC, Issues Conference and Trial Dates.
Plaintiff moves to continue the trial, DRC, MSC, and Issues Conference dates on the
ground that plaintiff’s counsel is unavailable for the current trial date due to counsel’s
inadvertence in agreeing to the scheduled dates when he already had a pre-paid vacation on
the same date as the trial date. Plaintiff states in the moving papers that the parties have met
and conferred and stipulated to continuance of the trial and associated dates, with discovery to
remain open. An authenticated copy of the stipulation apparently executed by counsels for
both parties is attached to plaintiff’s counsel’s declaration as Exhibit A.
The proof of service in the court’s file declares that notice of the hearing and the moving
papers were served by mail on defense counsel on January 15, 2015. There is no opposition in
the court’s file.
Absent opposition, it appears appropriate under the circumstances presented to grant the
motion and set a case management conference to set a new trial date and other associated
dates.
TENTATIVE RULING # 13: PLAINTIFF’S MOTION TO CONTINUE THE DRC, MSC, ISSUES
CONFERENCE AND TRIAL DATES IS GRANTED. THE TRIAL DATE IS VACATED.
DISCOVERY SHALL REMAIN OPEN. THE DISCOVERY CUT-OFF DATE IS TO BE
DETERMINED BY REFERENCE TO THE NEW TRIAL DATE. THE COURT SETS A CASE
MANAGEMENT CONFERENCE TO SET THE NEW TRIAL DATE FOR 9:00 A.M. ON
MONDAY, MARCH 23, 2015 IN DEPARTMENT TEN. NO HEARING ON THIS MATTER
WILL BE HELD (LEWIS V. SUPERIOR COURT (1999) 19 CAL.4TH 1232, 1247.), UNLESS A
NOTICE OF INTENT TO APPEAR AND REQUEST FOR ORAL ARGUMENT IS
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Law and Motion Calendar – Department Nine (8:30 a.m.)
February 26, 2015
TRANSMITTED ELECTRONICALLY THROUGH THE COURT’S WEBSITE OR BY
TELEPHONE TO THE COURT AT (530) 621-6551 BY 4:00 P.M. ON THE DAY THE
TENTATIVE RULING IS ISSUED. NOTICE TO ALL PARTIES OF AN INTENT TO APPEAR
MUST BE MADE BY TELEPHONE OR IN PERSON. PROOF OF SERVICE OF SAID
NOTICE MUST BE FILED PRIOR TO OR AT THE HEARING. MATTERS IN WHICH THE
PARTIES’ TOTAL TIME ESTIMATE FOR ARGUMENT IS 15 MINUTES OR LESS WILL BE
HEARD ON THE LAW AND MOTION CALENDAR AT 8:30 A.M. ON THURSDAY,
FEBRUARY 26, 2015 IN DEPARTMENT NINE UNLESS OTHERWISE NOTIFIED BY THE
COURT. ALL OTHER LONG CAUSE ORAL ARGUMENT REQUESTS WILL BE SET FOR
HEARING WITHIN TEN COURT DAYS OF THE ISSUANCE OF THE TENTATIVE RULING.
(EL DORADO COUNTY SUPERIOR COURT LOCAL RULES, RULE 7.10.05, et seq.)
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Law and Motion Calendar – Department Nine (8:30 a.m.)
February 26, 2015
14. DG GRANADE, INC. v. FOOD BANK OF EL DORADO COUNTY PC-20140350
Defendant’s Motion to Consolidate Case with Case Number PC-20140507.
Defendant Food Bank of El Dorado County (Food Bank) moves to consolidate this case for
all purposes with Food Bank of El Dorado County v. D.G. Granade, Inc., Case number PC20140507, on the ground that both actions involve the same parties and attorneys and
common and related questions of law and fact. Defendant Food Bank argues that both actions
arise from the same set of facts surrounding the construction of the new facility for Food Bank.
The proofs of service in the court’s file declare that on January 21, 2015 notice of the
hearing and the moving appears were served on counsel representing D.G. Granade, Inc. and
International Fidelity Insurance Co. There is no opposition to the motion in the court’s file.
“When actions involving a common question of law or fact are pending before the court, it
may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all
the actions consolidated and it may make such orders concerning proceedings therein as may
tend to avoid unnecessary costs or delay.” (Code of Civil Procedure, § 1048(a).)
Absent opposition, under the circumstances presented, it appears appropriate to grant the
motion.
TENTATIVE RULING # 14: ABSENT OPPOSITION, THE MOTION IS GRANTED. DG
GRANADE, INC. v. FOOD BANK OF EL DORADO COUNTY, CASE NUMBER
PC-
20140350 IS DESIGNATED THE LEAD CASE. NO HEARING ON THIS MATTER WILL BE
HELD (LEWIS V. SUPERIOR COURT (1999) 19 CAL.4TH 1232, 1247.), UNLESS A NOTICE
OF INTENT TO APPEAR AND REQUEST FOR ORAL ARGUMENT IS TRANSMITTED
ELECTRONICALLY THROUGH THE COURT’S WEBSITE OR BY TELEPHONE TO THE
COURT AT (530) 621-6551 BY 4:00 P.M. ON THE DAY THE TENTATIVE RULING IS
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Law and Motion Calendar – Department Nine (8:30 a.m.)
February 26, 2015
ISSUED. NOTICE TO ALL PARTIES OF AN INTENT TO APPEAR MUST BE MADE BY
TELEPHONE OR IN PERSON. PROOF OF SERVICE OF SAID NOTICE MUST BE FILED
PRIOR TO OR AT THE HEARING. MATTERS IN WHICH THE PARTIES’ TOTAL TIME
ESTIMATE FOR ARGUMENT IS 15 MINUTES OR LESS WILL BE HEARD ON THE LAW
AND MOTION CALENDAR AT 8:30 A.M. ON THURSDAY, FEBRUARY 26, 2015 IN
DEPARTMENT NINE UNLESS OTHERWISE NOTIFIED BY THE COURT. ALL OTHER
LONG CAUSE ORAL ARGUMENT REQUESTS WILL BE SET FOR HEARING WITHIN TEN
COURT DAYS OF THE ISSUANCE OF THE TENTATIVE RULING. (EL DORADO COUNTY
SUPERIOR COURT LOCAL RULES, RULE 7.10.05, et seq.)
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Law and Motion Calendar – Department Nine (8:30 a.m.)
February 26, 2015
15. BORBA v. TERHUNE PC-210140503
Defendants Terhune’s, Premier Securities & Trust of Switzerland, AG’s, and Equity
Assets International LLC’s Motion to Quash Service of Summons and Complaint.
Defendants Terhune, Premier Securities & Trust of Switzerland, AG (Premiere Securities),
and Equity Assets International, LLC move to quash service on the following grounds: service
on both Premiere Securities and Equity Assets International, LLC are fatally flawed; and the
court has no general jurisdiction or specific jurisdiction over these nonresident defendants.
Plaintiffs oppose the motion on the grounds that the summons and complaint were properly
served by personal service on defendant Terhune in his individual capacity, as director of
Premiere Securities, and as the principal of Equity Assets International, LLC; and the exercise
of specific jurisdiction over all defendants comports with the principles of due process.
Defendants’ Objections to Declarations in Opposition to Motion
-
Declaration of Jessica Wayne
Objection number 1 is overruled.
Objection number 2 is overruled as to the evidence of defendant Terhune being the only
active officer/managing member of defendant Equity Assets International, LLC and sustained
as to the document relating to First Equity Holding Group, Ltd.
Objection numbers 3-8 are sustained.
-
Declaration of Plaintiff David Borba
Objection numbers 1-3 and 6-8 are overruled.
Objection numbers 4 and 5 are sustained.
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Law and Motion Calendar – Department Nine (8:30 a.m.)
February 26, 2015
Service of Summons and Complaint
Defendants contend that the personal service on the business entity defendants was fatally
defective and, therefore, the service did not confer personal jurisdiction over those business
entities.
“’A defendant who takes the position that the service of summons as made upon him did
not bring him within the jurisdiction of the court, may serve and file a notice of motion to quash
the service. [Citation.] The effect of such a notice is to place upon the plaintiff the burden of
proving the facts that did give the court jurisdiction, that is the facts requisite to an effective
service.’ (245 Cal.App.2d at p. 868, 54 Cal.Rptr. 302.)” (Floveyor Internat., Ltd. v. Superior
Court (1997) 59 Cal.App.4th 789, 793-794.)
-
Service on Premiere Securities
Citing Corporations Code, § 2110 defendants argue that Premiere Securities could only be
served by personal delivery of the summons and a copy of the complaint on an officer or
general manager of the corporation. Defendants contend the service on defendant Premiere
Securities is fatally defective in that defendant Terhune is only a director of the corporation and
can’t be considered an officer or general manager of the corporation; and he only received a
single copy of the complaint when he should have received an additional copy for the
corporation as well.
“A summons may be served on a corporation by delivering a copy of the summons and of
the complaint: ¶ (a) To the person designated as agent for service of process as provided by
any provision in Section 202, 1502, 2105 or 2107 of the Corporations Code (or Sections 3301
to 3303, inclusive, or Sections 6500 to 6504, inclusive, of the Corporations Code as in effect on
December 31, 1976 with respect to corporations to which they remain applicable); ¶ (b) To the
president or other head of the corporation, a vice president, a secretary or assistant secretary,
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Law and Motion Calendar – Department Nine (8:30 a.m.)
February 26, 2015
a treasurer or assistant treasurer, a general manager, or a person authorized by the
corporation to receive service of process; ¶ (c) If the corporation is a bank, to a cashier or
assistant cashier or to a person specified in subdivision (a) or (b); or ¶ (d) When authorized by
any provision in Section 1701, 1702, 2110 or 2111 of the Corporations Code (or Sections 3301
to 3303, inclusive, or Sections 6500 to 6504, inclusive, of the Corporations Code as in effect on
December 31, 1976, with respect to corporations to which they remain applicable), as provided
by such provision.” (Emphasis added.) (Code of Civil Procedure, § 416.10.)
Service by Corporations Code, § 2110 is only an alternative method of service on
corporations. “In addition to the provisions of Chapter 4 (commencing with Section 413.10) of
Title 5 of Part 2 of the Code of Civil Procedure, process may be served upon a foreign
corporation as provided in this chapter.” (Corporations Code, § 2110.1.)
Defendant Terhune declares he is a director of Premiere Securities, but he is not an officer.
(Declaration of Robert C. Terhune III in Support of Motion, paragraphs 1 and 5.) The
commercial registry of Premiere Securities lists Mr. Terhune as one of only two “Members” of
the corporation.
Plaintiff David Borba declares that at all times stated in the complaint, defendant Terhune
personally represented to plaintiff David Borba that defendant Terhune was an agent with
authority to act on behalf of both Premiere Securities and Equity Assets International, LLC; and
defendant Terhune further represented to plaintiff’s employee Ali Arfa that defendant Terhune
was an agent with authority to act on behalf of both Premiere Securities and Equity Assets
International. (Declaration of David Borba in Opposition to Motion, paragraph 1.) There is also
evidence in the declaration of David Borba, as stated in detail later in this ruling, which
establishes that defendant Terhune was the sole contact for defendant Premier Securities
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Law and Motion Calendar – Department Nine (8:30 a.m.)
February 26, 2015
during all discussions about the subject transaction and he drafted the documents related to
the transaction.
“California law provides that service of process may be effected on a corporation by, among
other means, delivering a copy of the summons and the complaint to “a general manager” of
the corporation. Cal.Code of Civ. Proc. § 416.10(b). California courts have interpreted “general
manager” to “include [ ] any agent of the corporation ‘of sufficient character and rank to make it
reasonably certain that the defendant will be apprised of the service made.’ ” Gibble v. Car–
Lene Research, Inc., 67 Cal.App.4th 295, 313, 78 Cal.Rptr.2d 892 (1998), quoting Eclipse Fuel
Engineering Co. v. Superior Court, 148 Cal.App.2d 736, 745–46, 307 P.2d 739 (1957).” (Falco
v. Nissan North America Inc. (C.D.Cal. 2013) 987 F.Supp.2d 1071, 1074.)
The appellate court in Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295 also
stated: “The issue remains whether service pursuant to section 416.10 was validly completed
in this case. As far as this record discloses, it was. It is well settled that strict compliance with
statutes governing service of process is not required. Rather, in deciding whether service was
valid, the statutory provisions regarding service of process should be liberally construed to
effectuate service and uphold the jurisdiction of the court if actual notice has been received by
the defendant. (Pasadena Medi–Center Associates v. Superior Court (1973) 9 Cal.3d 773,
778, 108 Cal.Rptr. 828, 511 P.2d 1180; Dill v. Berquist Construction Co., supra, 24 Cal.App.4th
at p. 1437, 29 Cal.Rptr.2d 746.) Thus, substantial compliance is sufficient. (Ibid.) Furthermore,
service on a person who was ostensibly, even if not actually, a corporate officer is sufficient
under section 416.10. (See Pasadena Medi–Center Associates v. Superior Court, supra, at pp.
778–779, 108 Cal.Rptr. 828, 511 P.2d 1180.) Where there has been service upon a corporate
agent with ostensible authority to accept it, jurisdiction is established and a claim of defective
service in such a case is not a proper basis for setting aside a default judgment entered
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February 26, 2015
against the corporation. (Id. at p. 777, 108 Cal.Rptr. 828, 511 P.2d 1180.)” (Gibble v. Car-Lene
Research, Inc. (1998) 67 Cal.App.4th 295, 313.)
Under the totality of the circumstances established by the evidence in the declarations
submitted in support of, opposition to, and reply to the motion, the court finds that as a director
and sole agent for negotiation and drafting of the subject agreement with defendant Premier
Securities, defendant Terhune at the very least was a general manager in that he is an agent
of the corporation of sufficient character and rank to make it reasonably certain that the
defendant Premier Securities will be apprised of the service.
As for the claim that defendant Terhune only received one copy of the pleadings as
declared in paragraph 2 of defendant Terhune’s declaration in support of the motion, the
authorized Washington State process server declares that in the evening of December 4, 2014
the process server personally handed Mr. Terhune three sets of the required documents,
including three sets of the summons and complaint and the other litigation documents
(Declaration of Tye Goetz, paragraph 5.). The court finds the process server’s declaration
credible.
The motion to quash service on defendant Premier Securities on the ground of lack of
sufficient service on a president or other head of the corporation, a vice president, a secretary
or assistant secretary, a treasurer or assistant treasurer, a general manager, or a person
authorized by the corporation to receive service of process is denied.
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Service on Equity Assets International, LLC
Defendants argue that Equity Assets International, LLC is a Nevada LLC with a designated
agent for service of process in Nevada; defendant Terhune is not the registered agent; and,
therefore, service on defendant Equity Assets International, LLC by serving defendant Terhune
on behalf of the LLC is fatally defective and requires that service on the LLC be quashed.
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February 26, 2015
““[A] limited liability company is a hybrid business entity formed under the Corporations
Code consisting of at least two members who own membership interests. The company has a
legal existence separate from its members. While members actively participate in the
management and control of the company, they have limited liability for the company's debts
and obligations to the same extent enjoyed by corporate shareholders. [Citations.]” (Kwok v.
Transnation Title Ins. Co. (2009) 170 Cal.App.4th 1562, 1571, 89 Cal.Rptr.3d 141 (Kwok).)
Under Corporations Code section 17300, a member of an LLC “has no interest in specific
limited liability company property.” (Accord, Kwok, at pp. 1570–1571, 89 Cal.Rptr.3d 141.)”
(Capon v. Monopoly Game LLC (2011) 193 Cal.App.4th 344, 357, fn. 11.)
Corporations Code, § 17701.16 is only an alternative method of service on LLCs and
foreign LLCs. “In addition to Chapter 4 (commencing with Section 413.10) of Title 5 of Part 2 of
the Code of Civil Procedure, process may be served upon limited liability companies and
foreign limited liability companies as provided in this section.” (Corporations Code, §
17701.16(a).)
Therefore, service of process on a foreign LLC is not limited to service on the registered
agent for service of process and may also be served on the president or other head of the LLC,
a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a
general manager, or a person authorized to receive service of process. (See Code of Civil
Procedure, §§ 416.10(b) and 416.40(b).)
The court takes judicial notice that defendant Terhune is listed in the records of the Nevada
Secretary of State as the only active officer and managing member of Equity Assets
International, LLC. (See Declaration of Jessica Warne, Exhibit B.) A Washington State
authorized process server declares: the process server was instructed to serve three separate
and complete sets of documents on Mr. Terhune with one set for him individually and the other
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Law and Motion Calendar – Department Nine (8:30 a.m.)
February 26, 2015
two sets for each of the business entities; the documents to be served were provided to the
process server by pdf files, each of which he printed out to deliver to Mr. Terhune; and in the
evening on December 4, 2014 the process server personally handed to Mr. Terhune three
document sets each containing a summons, notice of case assignment and case management
conference, clerk’s certificate of service, notice to litigants, case management statement, and
complaint with exhibits. (Declaration of Tye Goetz, paragraphs 3-5.)
The evidence establishes proper service on defendant Equity Assets International, LLC by
personally serving the sole officer and managing member of the LLC with the summons,
complaint and other litigation documents.
Personal Jurisdiction
““When determining whether specific jurisdiction exists, courts consider the ‘ “relationship
among the defendant, the forum, and the litigation.” ’ (Helicopteros Nacionales de Colombia v.
Hall (1984) 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404, quoting Shaffer v. Heitner
(1977) 433 U.S. 186, 204, 97 S.Ct. 2569, 53 L.Ed.2d 683.) A court may exercise specific
jurisdiction over a nonresident defendant only if: (1) ‘the defendant has purposefully availed
himself or herself of forum benefits' (Vons, supra, 14 Cal.4th at p. 446, 58 Cal.Rptr.2d 899, 926
P.2d 1085); (2) ‘the “controversy is related to or ‘arises out of’ [the] defendant's contacts with
the forum” ' (ibid., quoting Helicopteros, supra, 466 U.S. at p. 414, 104 S.Ct. 1868); and (3) ‘
“the assertion of personal jurisdiction would comport with ‘fair play and substantial justice’ ” '
(Vons, supra, 14 Cal.4th at p. 447, 58 Cal.Rptr.2d 899, 926 P.2d 1085, quoting Burger King
Corp. v. Rudzewicz (1985) 471 U.S. 462, 472–473, 105 S.Ct. 2174, 85 L.Ed.2d 528 [(Burger
King )].)” (Pavlovich, supra, 29 Cal.4th at p. 269, 127 Cal.Rptr.2d 329, 58 P.3d 2.)” (Snowney
v. Harrah's Entertainment, Inc. (2005) 35 Cal.4th 1054, 1062.)
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February 26, 2015
“On a motion to quash service of summons, the plaintiff bears the burden of proving by a
preponderance of the evidence that all jurisdictional criteria are met. (Mihlon v. Superior Court
(1985) 169 Cal.App.3d 703, 710, 215 Cal.Rptr. 442; Ziller Electronics Lab GmbH v. Superior
Court (1988) 206 Cal.App.3d 1222, 1232, 254 Cal.Rptr. 410 (Ziller).) The burden must be met
by competent evidence in affidavits and authenticated documents; an unverified complaint may
not be considered as supplying the necessary facts. (Ziller, supra, 206 Cal.App.3d at p. 1233,
254 Cal.Rptr. 410.) Where there is no conflict in the evidence, the question of personal
jurisdiction is one of law. (Hall v. LaRonde (1997) 56 Cal.App.4th 1342, 1346, 66 Cal.Rptr.2d
399.)” (Nobel Floral, Inc. v. Pasero (2003) 106 Cal.App.4th 654, 657-658.)
“When a defendant moves to quash service of process on jurisdictional grounds, the plaintiff
has the initial burden of demonstrating facts justifying the exercise of jurisdiction. [Citation.]
Once facts showing minimum contacts with the forum state are established, however, it
becomes the defendant's burden to demonstrate that the exercise of jurisdiction would be
unreasonable. [Citation.]" (Vons Companies, Inc. v. Seabest Foods, Inc., supra, 14 Cal.4th at
p. 449, 58 Cal.Rptr.2d 899, 926 P.2d 1085.) Where the evidence is undisputed, as here, the
jurisdiction question is purely one of law subject to de novo review. (Ibid.)” (Stone v. State of
Tex. (1999) 76 Cal.App.4th 1043, 1048.)
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Purposeful Availment
“If the nonresident defendant does not have substantial and systematic contacts in the
forum sufficient to establish general jurisdiction, he or she still may be subject to the specific
jurisdiction of the forum, if the defendant has purposefully availed himself or herself of forum
benefits (Burger King, supra, 471 U.S. at pp. 472-473, 105 S.Ct. at p. 2182), and the
‘controversy is related to or 'arises out of' a defendant's contacts with the forum.’ (Helicopteros,
supra, 466 U.S. at p. 414, 104 S.Ct. at p. 1872; see also Burger King, supra, 471 U.S. at p.
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February 26, 2015
472, 105 S.Ct. at pp. 2181-2182.) …The United States Supreme Court has described the
forum contacts necessary to establish specific jurisdiction as involving variously a nonresident
who has "purposefully directed" his or her activities at forum residents (Burger King, supra, 471
U.S. at p. 472, 105 S.Ct. at pp. 2181-2182), or who has ‘purposefully derived benefit’ from
forum activities (id. at p. 473, 105 S.Ct. at p. 2183), or ‘ “purposefully avail[ed himself or
herself] of the privilege of conducting activities within the forum State, thus invoking the
benefits and protections of its laws.” ‘ (Id. at p. 475, 105 S.Ct. at p. 2183). The court also has
referred to the requisite forum contact as involving a nonresident defendant who ‘ “deliberately”
has engaged in significant activities with a State [citation] or has created “continuing
obligations” between himself and residents of the forum [citation]’ (id. at pp. 475-476, 105 S.Ct.
at pp. 2183-2184), concluding that in such cases the defendant ‘manifestly has availed himself
of the privilege of conducting business [in the forum], and because his activities are shielded
by “the benefits and protections” of the forum's laws it is presumptively not unreasonable to
require him to submit to the burdens of litigation in that forum as well.’ (Id. at p. 476, 105 S.Ct.
at p. 2184.)” (Vons Companies, Inc. v. Seabest Foods, Inc. (1997) 14 Cal.4th 434, 445-446.) If
the defendant’s activities in the forum are not so persuasive as to justify the exercise of general
jurisdiction over him, then the jurisdiction depends upon the quality and nature of his activity in
the forum relative to the particular cause of action asserted. In such a situation the cause of
action asserted must arise out of an act done or transaction consummated in the forum, or the
defendant must perform some other act by which he or she purposefully avails himself or
herself of the privilege of conducting activities in the forum, invoking the benefits and
protections of the laws of that forum. (Rice Growers Assn. Of California v. First National Bank
of Minneapolis (1985) 167 Cal.App.3d 559, 567.) The requisite minimum contacts can even be
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February 26, 2015
established by evidence of electronic contacts through the Internet and telephone. (Hall v.
LaRonde (1997) 56 Cal.App.4th 1342, 1347.)
In addressing the advent of Internet commerce and personal jurisdiction, the California
Supreme Court has stated: ““We first determine whether defendants purposefully availed
themselves of the privilege of doing business in California. Based on defendants' purposeful
and successful solicitation of business from California residents, we find that plaintiff has
established purposeful availment. ¶ “‘The purposeful availment inquiry ... focuses on the
defendant's intentionality. [Citation.] This prong is only satisfied when the defendant
purposefully and voluntarily directs [its] activities toward the forum so that [it] should expect, by
virtue of the benefit [it] receives, to be subject to the court's jurisdiction based on’ [its] contacts
with the forum.” (Pavlovich, supra, 29 Cal.4th at p. 269, 127 Cal.Rptr.2d 329, 58 P.3d 2,
quoting U.S. v. Swiss American Bank, Ltd. (1st Cir.2001) 274 F.3d 610, 623–624.) Thus,
purposeful availment occurs where a nonresident defendant “ ‘purposefully direct[s]’ [its]
activities at residents of the forum” (Burger King, supra, 471 U.S. at p. 472, 105 S.Ct. 2174), “
‘purposefully derive[s] benefit’ from” its activities in the forum ( id. at p. 473, 105 S.Ct. 2174),
“create[s] a ‘substantial connection’ with the forum” (id. at p. 475, 105 S.Ct. 2174), “
‘deliberately’ has engaged in significant activities within” the forum (id. at pp. 475–476, 105
S.Ct. 2174), or “has created ‘continuing obligations' between [itself] and residents of the forum”
(id. at p. 476, 105 S.Ct. 2174). By limiting the scope of a forum's jurisdiction in this manner, the
“‘purposeful availment’ requirement ensures that a defendant will not be haled into a
jurisdiction solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts....” (Id. at p. 475,
105 S.Ct. 2174.) Instead, the defendant will only be subject to personal jurisdiction if “ ‘it has
clear notice that it is subject to suit there, and can act to alleviate the risk of burdensome
litigation by procuring insurance, passing the expected costs on to customers, or, if the risks
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February 26, 2015
are too great, severing its connection with the state.’ ” (Pavlovich, at p. 269, 127 Cal.Rptr.2d
329, 58 P.3d 2, quoting World–Wide Volkswagen, supra, 444 U.S. at p. 297, 100 S.Ct. 559.) ¶
Here, defendants' contacts with California are more than sufficient to establish purposeful
availment. We begin by examining defendants' Internet contacts. To determine whether a Web
site is sufficient to establish purposeful availment, we first look to the sliding scale analysis
described in Zippo Mfg. Co. v. Zippo Dot Com, Inc. (W.D.Pa.1997) 952 F.Supp. 1119 (Zippo).
(See Pavlovich, supra, 29 Cal.4th at p. 274, 127 Cal.Rptr.2d 329, 58 P.3d 2.) “At one end of
the spectrum are situations where a defendant clearly does business over the Internet. If the
defendant enters into contracts with residents of a foreign jurisdiction that involve the knowing
and repeated transmission of computer files over the Internet, personal jurisdiction is proper.
[Citation.] At the opposite end are situations where a defendant has simply posted information
on an Internet Web site which is accessible to users in foreign jurisdictions. A passive Web site
that does little more than make information available to those who are interested in it is not
grounds for the exercise [of] personal jurisdiction. [Citation.] The middle ground is occupied by
interactive Web sites where a user can exchange information with the host computer. In these
cases, the exercise of jurisdiction is determined by examining the level of interactivity and
commercial nature of the exchange of information that occurs on the Web site.” (Zippo, at p.
1124.)” (Snowney v. Harrah's Entertainment, Inc. (2005) 35 Cal.4th 1054, 1062-1063.)
Plaintiff David Borba declares: at all times stated in the complaint, defendant Terhune
personally represented to plaintiff David Borba that defendant Terhune was an agent with
authority to act on behalf of both Premiere Securities and Equity Assets International, LLC;
defendant Terhune further represented to plaintiff’s employee Ali Arfa that defendant Terhune
was an agent with authority to act on behalf of both Premiere Securities and Equity Assets
International, LLC; plaintiffs’ employee, Ali Arfa, handled most of the communications with
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Law and Motion Calendar – Department Nine (8:30 a.m.)
February 26, 2015
defendant Terhune from Braztek International’s (Braztek) office in El Dorado Hills, California;
employee Arfa was permitted by plaintiffs to be in charge, because this was a completely new
business for plaintiff; Arfa would talk on the phone, email and Skype with defendant Terhune
most, if not all, of the time described in the complaint; in October 2011 defendant Terhune
instructed plaintiffs through employee Arfa to wire funds from their bank; defendant Terhune
listed plaintiffs’ El Dorado Hills business address on all purported contract documents he
drafted on behalf of defendant Premiere Securities; defendant Terhune provided the bank
address for defendant Equity Assets International, LLC in Washington; there are wire transfer
confirmations tracing $200,000 that plaintiffs wired from Braztek’s California bank to defendant
Equity Assets International, LLC at defendant Terhune’s personal residence address;
defendant Terhune provided to him two documents referencing Huntington Beach Energy Co.
in Beverly Hills, California, which was provided to plaintiffs in connection with the subject
transaction and referred to defendant Terhune as Chairman of that company; it was plaintiffs’
understanding that defendant Terhune intended to form a California LLC in connection with the
subject deal and that plaintiffs would be members of that LLC; eventually defendant Terhune
made it clear that the subject deal would not be funded and suggested that he instead use the
money that he already received from plaintiffs to fund a Southern California project for Bechtel
Energy, LLC; all of David Borba’s communications with defendant Terhune took place on
Skype video conferencing as his preferred mode of communication; he trusted defendant
Terhune with a substantial amount of money, because he held himself out as an expert in
international financial matters and seemed to be a legitimate business person; and defendant
Terhune did business with Braztek, him and his brother knowing they were California residents
and knowing that most, if not all of David Borba’s communications with him were taking place
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Law and Motion Calendar – Department Nine (8:30 a.m.)
February 26, 2015
from the Braztek office in El Dorado Hills via Skype. (Declaration of David Borba in Opposition
to Motion, paragraphs 1-5, 8-10, 12, and 13; and Exhibits B and C.)
Defendant Terhune’s declarations in support of the motion and reply conflict with plaintiff
David Borba’s declaration in several respects, including, but not limited to, the extent of his
contacts with plaintiffs directly; accusations of lies related to his providing Huntington Beach
Energy Co. documents to plaintiff David Borba and his purported statements relating to Bechtel
Energy; and his denials that he and the other defendants conducted any business in California.
Defendant Terhune admits that Ali Arfa was plaintiff’s employee and primary contact person
for communications, relaying information back and forth. (Declaration of Robert C. Terhune, III
in Support of Motion, paragraph 9.)
Under the totality of the circumstances established by the evidence submitted, the court
finds that defendant Terhune and the other defendant businesses purposefully availed
themselves of the privilege of conducting activities within California, thus invoking the benefits
and protections of its laws. There is evidence of numerous contacts with a California business
by defendants through Braztek’s principals and its employee, Ali Arfa, relating to financial
services concerning a significant investment. The contacts were by email, Skype and phone
calls between defendant Terhune, apparently in Washington State, to plaintiffs and their
employee in California. Defendant Terhune had to know that he was dealing with a California
business when seeking to make a deal for a $200,000 investment by contacting plaintiffs and
their employee in California related to the transaction, as well as by drafting documents with
the plaintiffs’ business address in El Dorado Hills. The situation depicted by the evidence is
one where defendants created continuing obligations between themselves and residents of
California, they entered into an agreement with residents of California that involve the knowing
and repeated transmission of information electronically and by phone relating to the financial
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Law and Motion Calendar – Department Nine (8:30 a.m.)
February 26, 2015
investment services provided by defendants to California residents and their business, and the
conduct established by the evidence submitted does not indicate the defendants’ contacts with
California concerning the specific subject transaction were merely random, fortuitous, or
attenuated.
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Controversy is Related to or Arises out of the Defendants’ Contacts with California
It has been clearly established that the subject controversy relates to and arises from the
defendants’ contacts with California, thereby satisfying the second prong of the test as to
whether or not the assertion of personal jurisdiction in California comports with due process
requirements.
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Assertion of Personal Jurisdiction would Comport with Fair Play and Substantial Justice
Defendant Terhune declares it would be unfair and unreasonable to have him defend
against the instant litigation in California, because he will be forced to travel to a State that he
has no business or personal connection to. (Declaration of Robert C. Terhune, III in Support of
Motion, paragraph 12.)
Under the totality of the circumstances established by the evidence submitted, it appears
that assertion of specific personal jurisdiction concerning the subject transaction would
comport with fair play and substantial justice and would not be unfair or unreasonable.
The motion as it relates to quashing service on the ground of lack of general or specific
personal jurisdiction is denied.
TENTATIVE RULING # 15: DEFENDANTS’ MOTION TO QUASH SERVICE OF THE
SUMMONS AND COMPLAINT IS DENIED. NO HEARING ON THIS MATTER WILL BE
HELD (LEWIS V. SUPERIOR COURT (1999) 19 CAL.4TH 1232, 1247.), UNLESS A NOTICE
OF INTENT TO APPEAR AND REQUEST FOR ORAL ARGUMENT IS TRANSMITTED
ELECTRONICALLY THROUGH THE COURT’S WEBSITE OR BY TELEPHONE TO THE
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Law and Motion Calendar – Department Nine (8:30 a.m.)
February 26, 2015
COURT AT (530) 621-6551 BY 4:00 P.M. ON THE DAY THE TENTATIVE RULING IS
ISSUED. NOTICE TO ALL PARTIES OF AN INTENT TO APPEAR MUST BE MADE BY
TELEPHONE OR IN PERSON. PROOF OF SERVICE OF SAID NOTICE MUST BE FILED
PRIOR TO OR AT THE HEARING. MATTERS IN WHICH THE PARTIES’ TOTAL TIME
ESTIMATE FOR ARGUMENT IS 15 MINUTES OR LESS WILL BE HEARD ON THE LAW
AND MOTION CALENDAR AT 8:30 A.M. ON THURSDAY, FEBRUARY 26, 2015 IN
DEPARTMENT NINE UNLESS OTHERWISE NOTIFIED BY THE COURT. ALL OTHER
LONG CAUSE ORAL ARGUMENT REQUESTS WILL BE SET FOR HEARING WITHIN TEN
COURT DAYS OF THE ISSUANCE OF THE TENTATIVE RULING. (EL DORADO COUNTY
SUPERIOR COURT LOCAL RULES, RULE 7.10.05, et seq.)
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Law and Motion Calendar – Department Nine (8:30 a.m.)
February 26, 2015
16. AMERICAN EXPRESS CENTURION BANK v. GORDON PCL-20130504
Hearing Re: Claim of Exemption.
TENTATIVE RULING # 16: THIS MATTER IS CONTINUED TO 8:30 A.M. ON THURSDAY,
MARCH 26, 2015 IN DEPARTMENT NINE.
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Law and Motion Calendar – Department Nine (8:30 a.m.)
February 26, 2015
17. MATTER OF THE 2008 JOHN G. AND BERNADINE M. PARISEK TRUST PP-20140176
1st Account and Report of Trustee.
TENTATIVE RULING # 17: THIS MATTER IS CONTINUED TO 8:30 A.M. ON THURSDAY,
APRIL 9, 2015 IN DEPARTMENT NINE.
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Law and Motion Calendar – Department Nine (8:30 a.m.)
February 26, 2015
18. TERRY v. STATE OF CALIFORNIA PC-20130645
(1) Motion Re: Response to Tentative Ruling.
(2) Motion Requesting Reporter’s Transcripts, Internet and Courtcall Access, and Legal
Assistance.
Motion Re: Response to Tentative Ruling.
Plaintiff moved for appointment of counsel at no cost to him so that he would be
represented by counsel in his civil litigation against various governmental entities,
governmental employees and a judge. The court issued a nine page tentative ruling on the
motion. The hearing was held on October 23, 2014. Plaintiff was present on Courtcall. At the
hearing the court adopted the tentative ruling as the final ruling on plaintiff’s motion and denied
the motion for court appointed counsel. On October 23, 2014 the minute order denying the
motion was mailed to plaintiff’s address of record.
On November 26, 2014 plaintiff filed a motion in response to tentative ruling and statements
regarding court’s summary of the case. Plaintiff either seeks that the court reconsider its denial
of the motion to appoint counsel, or plaintiff believes that he is responding to a ruling that is still
tentative, rather than final.
The proof of service in the court’s file declares that the moving papers were served on the
Superior Court and counsel for defendants City of Placerville, Placerville City Police
Department and El Dorado County by mail on November 23, 2014. There is no opposition to
the motion in the court’s file.
In order for an interested party to obtain reconsideration of a prior ruling or order, the
applicant is required to file the motion within 10 days after service upon the party of the written
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February 26, 2015
notice of entry of the order and the application must be based upon new or different facts,
circumstances or law. (Code of Civil Procedure, § 1008(a).)
The motion was not filed within ten days after service of written notice of entry of the order
The moving papers contain no new or different facts, circumstances or law. Plaintiff
reargues his motion with references to portions of the tentative and final ruling. Plaintiff also
argues that his operative pleading sets forth a bona fide claim despite matters of which the
court took judicial notice of related to his criminal conviction, which has not been overturned.
Therefore, the motion is procedurally deficient and subject to being denied for that reason.
Even assuming for the sake of argument only that the court reaches the merits of the
motion for reconsideration, the court is not persuaded by the plaintiff’s argument and would not
amend, modify, or reverse itself regarding the final ruling denying the motion for court
appointed counsel in this civil action.
To the extent that plaintiff believes that the instant motion is his argument responsive to the
tentative ruling on his motion for court appointed counsel prior to entry of a final ruling, even
assuming the court accepts the moving papers as plaintiff’s argument responding to the
tentative ruling, the court is not persuaded to change its decision and would deny the motion
had these arguments been made at the October 23, 2014 hearing.
In short, the motion in response to tentative ruling and statements regarding court’s
summary of the case is denied.
Plaintiff may appear at the February 26, 2015 hearing by Courtcall.
Motion Requesting Reporter’s Transcripts, Internet and Courtcall Access, and Legal
Assistance.
Plaintiff is an inmate in custody. Plaintiff renews his request for court appointed counsel at
no cost to represent him in this civil action. He further requests an order granting him Internet
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Law and Motion Calendar – Department Nine (8:30 a.m.)
February 26, 2015
access to retrieve court documents, to provide him with the means to contact Courtcall, and for
reporter’s transcripts through the Valley State Prison Library and/or prison counselor. He
contends that he has been denied meaningful access to the court.
The plaintiff has not submitted any new or different facts by declaration related to the
factors to consider in granting or denying an indigent inmate’s motion for appointment of
counsel in a civil case. The moving papers do not persuade the court to change its decision
related to the request for appointed counsel.
As for the request to provide him the means for contacting Courtcall, plaintiff has not set
forth any facts that show he has been denied meaningful access to Courtcall. The court notes
that plaintiff appeared by Courtcall at the hearings on November 13, 2014 and October 23,
2014. Plaintiff also appeared at the case management conferences held on April 28, 2014 and
August 4, 2014, at which time the temporary judge ordered the warden of Valley State Prison
to allow plaintiff to make a telephonic appearance by Courtcall during the March 2, 2015 case
management conference. The only argument raised by plaintiff is that the court advised plaintiff
to contact Courtcall, yet the court provided no means to contact Courtcall. It does not appear
that plaintiff has had any difficulty contacting and arranging Courtcall appearances. He has not
set forth any facts that he is encountering Courtcall problems due to his inmate status. While
the court will continue to allow plaintiff to appear by Courtcall at hearings and case
management conferences, the court needs more information related to any difficulties he has
in contacting Courtcall. In the absence of evidence of a problem, the court will not issue a
blanket rule directing a specific method and procedure to follow in providing plaintiff with
access to Courtcall and, in fact, the court has no information upon which it can fashion a
remedy for a Courtcall access problem that has not been identified. In short, it does not appear
from the facts presented that plaintiff has been deprived of meaningful access to the courts by
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Law and Motion Calendar – Department Nine (8:30 a.m.)
February 26, 2015
allowing him to appear by Courtcall without further court order. Should he encounter problems
preventing meaningful access to the courts through Courtcall, the court will entertain a new
request seeking a remedy and review the facts presented.
Plaintiff requests orders concerning Internet access. It appears that plaintiff is referring to
access to the Internet in order to print out and/or read tentative rulings on matters related to
this case. Plaintiff has not set forth any declaration of facts indicating he has been blocked
from access to the Internet, which prevented him from printing out or reviewing tentative rulings
posted the day prior to hearings, or he is unable to gain access to the Internet the day prior to
the hearing due to the prison rules. However, in the interests of access to the tentative rulings
on the court web page, the court will order that when plaintiff advises the prison personnel of
the date of an upcoming hearing, the Warden at the Valley State Prison is to have a
designated person at the prison print out the published tentative ruling for this case that is
posted on the court’s web page by 1:30 p.m. on the day prior to the hearing date and provide it
to plaintiff in advance of the hearing for his review. Plaintiff will then be allowed to appear at the
hearing the next day by Courtcall for the purposes of oral argument.
Plaintiff also makes a vague request as to reporter’s transcripts without reference to any
particular hearing or matter. Plaintiff has not presented facts that adequately explain how the
lack of transcripts of every hearing has denied him meaningful access to the courts and just
requests a blanket order to provide him with free reporter’s transcripts apparently concerning
everything without any supporting facts. The court denies the request without prejudice to
plaintiff seeking reporter’s transcripts by presenting facts explaining how he is deprived of
meaningful access in the absence of the provision of those free transcripts.
The motion is denied in part and granted in part as stated in the text of the ruling.
Plaintiff may appear at the February 26, 2015 hearing by Courtcall.
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Law and Motion Calendar – Department Nine (8:30 a.m.)
February 26, 2015
TENTATIVE RULING # 18: PLAINTIFF’S MOTION IN RESPONSE TO TENTATIVE RULING
AND STATEMENTS REGARDING COURT’S SUMMARY OF THE CASE IS DENIED.
PLAINTIFF’S MOTION REQUESTING REPORTER’S TRANSCRIPTS, INTERNET AND
COURTCALL ACCESS, AND LEGAL ASSISTANCE IS DENIED IN PART AND GRANTED
IN PART. THE REQUESTS FOR APPOINTED COUNSEL, FURTHER ORDERS RELATED
TO ACCESS TO COURTCALL, AND FREE REPORTER’S TRANSCRIPTS ARE DENIED
WITHOUT PREJUDICE. THE COURT ORDERS THAT WHEN PLAINTIFF ADVISES THE
PRISON PERSONNEL OF THE DATE OF AN UPCOMING HEARING, THE WARDEN AT
THE VALLEY STATE PRISON IS TO HAVE A DESIGNATED PERSON AT THE PRISON
PRINT OUT THE PUBLISHED TENTATIVE RULING FOR THIS CASE THAT IS POSTED ON
THE COURT’S WEB PAGE BY 1:30 P.M. ON THE DAY PRIOR TO THE HEARING DATE
AND PROVIDE IT TO PLAINTIFF IN ADVANCE OF THE HEARING FOR HIS REVIEW.
PLAINTIFF WILL THEN BE ALLOWED TO APPEAR AT THE HEARING THE NEXT DAY BY
COURTCALL FOR THE PURPOSES OF ORAL ARGUMENT. THE FINAL ORDER ON THE
REQUEST FOR INTERNET ACCESS IS TO BE MAILED TO THE WARDEN AT THE
VALLEY STATE PRISON. APPEARANCES ARE REQUIRED AT 8:30 A.M. ON THURSDAY,
FEBRUARY 26, 2015 IN DEPARTMENT NINE FOR THE PURPOSES OF ORAL
ARGUMENT.
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