May 30, 2015
Law & Motions Tentative Rulings
  • Law and Motion Department Tentative Ruling Line:  (650) 261-5019
  • Other Judges' tentatives: please reference the appropriate Case Number and Case Caption below and contact the appropriate department.

Telephonic Appearances (CourtCall): If an appearance is required or if a party has provided timely notice of intent to appear by 4:00 p.m. to the court and all parties, any party may appear telephonically through CourtCall. To do so, you must contact CourtCall at (888) 882-6878 no later than 4:30 p.m. on the court day prior to the hearing. Notifying CourtCall with your intent to appear is not an alternative to notifying the court. Please visit their website for more information. Please also see California Rule of Court No. 3.670.

In the Superior Court of the State of California

In and for the County of San Mateo

 

Law and Motion Calendar

Judge: Honorable ELIZABETH K. LEE

Department 17

 

400 County Center, Redwood City

Courtroom 2L

 

Friday, May 29, 2015

 

IF YOU INTEND TO APPEAR ON ANY CASE ON THIS CALENDAR YOU MUST DO THE FOLLOWING:

1. YOU MUST CALL (650) 261-5019 BEFORE 4:00 P.M. TO INFORM THE COURT OF YOUR INTENT TO APPEAR.

2. You must give notice before 4:00 P.M. to all parties of your intent to appear pursuant to California Rules of Court 3.1308(a)(1).

 

Failure to do both items 1 and 2 will result in no oral presentation.

 

N.B. Notifying CourtCall with your intent to appear is not an alternative to notifying the court.  

 

All Counsel are reminded to comply with California Rule of Court 3.1110.  The Court will expect all exhibits to be tabbed accordingly. 

 

    Case                  Title / Nature of Case

9:00

1

CIV 498687       FIDELITY NATIONAL TITLE COMPANY VS. PAUL LEININGER,

                   ET AL.

 

 

FIDELITY NATIONAL TITLE COMPANY       PATRICK REIDER

PAUL LEININGER                        SARAHANN SHAPIRO

 

 

MOTION FOR ATTORNEY’S FEES AND COSTS INCURRED ON APPEAL BY FIDELITY NATIONAL TITLE COMPANY

 

 

·         Per order of the court, this matter has been continued to June 12, 2015 before Judge Joseph Scott in Department 25.

 

_____________________________________________________________________


9:00

2

CIV 520000       PURCELL-MURRAY VS. THE CLARK LAW GROUP

 

 

PURCELL-MURRAY COMPANY, INC.          THOMAS J. LOSAVIO

THE CLARK LAW GROUP                   PHILIP S. WARD

 

 

MOTION TO COMPEL PLAINTIFF TO PROVIDE FURTHERRESPONSES TO FORM AND SPECIAL INTERROGATORIES, SET ONE BY THE CLARK LAW GROUP

 

 

  • Defendant, Clark Law Group’s, Motion to Compel Further Response as to Form Interrogatory No. 17.1 is GRANTED as to Request for Admission  Nos. 1, 2, 3, 5, 6, 7, 8 and 9 part (c). The Motion is DENIED as to No. 9 parts (b) and (d).

 

  • The Motion as to Special Interrogatories is GRANTED as to Nos. 1 - 9, 11, 13 - 24 and 26, 28 - 30. The Motion is DENIED as to No. 25.

 

  • Plaintiff Purcell-Murray Company shall serve full and complete, verified responses, within 15 days after Notice of Entry of Order.

 

MOTION TO COMPELL PLAINTIFF TO PROVIDE FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS

 

  • Defendant, Clark Law Group’s, Motion to Compel Further Responses to Request for Production of Documents Nos. 6 – 10, 8 – 15 and 17 is GRANTED.  Plaintiff Purcell-Murray Complaint shall serve further responses together with the responsive documents within 15 days after Notice of Entry of Order.

 

  • Defendant, Clark Law Group’s, Motion to Compel Further Responses to Request for Production of Documents Nos. 1, 11 and 16 is GRANTED as follows: The Motion is GRANTED and Purcell-Murray Company shall serve responses and documents as it deems proper, together with a privilege log relating to responsive withheld documents (including redactions). This response shall be served within 15 days after service of Notice of entry of Order.  

 

  • Moving party is directed to prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court.  The order is to be submitted directly to Judge Elizabeth K. Lee, Department 17.

 

 

_____________________________________________________________________


9:00

3

CIV 524828       RALPH DAYAN VS. LINDA MARIE LEMBI

 

 

RALPH DAYAN                           EDWARD C. SINGER

LINDA MARIE LEMBI                     RESS F. MORGAN

 

 

MOTION FOR AWARD OF ATTORNEYS' FEES BY LINDA MARIE LEMBI

 

 

  • Defendant's Motion for Award of Attorney's Fees is GRANTED in part.  Defendant is awarded attorney's fees against Ralph Dayan and Ralph Dayan as trustee of the Amended and Restated Dayan Family Revocable Trust Dated December 31, 1991 only.  After having considered the experience of the attorneys who performed the work, the complexity of the issues involved and the necessity of the work performed, the court has determined that the reasonable value of attorney's fees is $223,260.26.

 

  • Defendant’s Motion for Award of Attorney’s Fees against RMSV is DENIED.  Plaintiffs argue that this court has already decided, via summary judgment that the Release does not apply to RMSV, that that decision collaterally estops defendant from asserting otherwise and that RMSV is therefore not liable for attorney fees. Plaintiffs do not otherwise discuss or present evidence that the General Release does not apply to RMSV.  “The requirements for invoking collateral estoppel are the following: (1) the issue necessarily decided in the previous proceeding is identical to the one that is sought to be relitigated; (2) the previous proceeding terminated with a final judgment on the merits; and (3) the party against whom collateral estoppel is asserted was a party to or in privity with a party in the previous proceeding.” Coscia v. McKenna & Cuneo (2001) 25 Cal. 4th 1194, 1201n.1.

 

  • Here, there was no prior proceeding (case) and no final judgment on the merits on this particular issue.  The court granted summary judgment in favor of Mrs. Lembi, finding that Ralph Dayan’s claim (individually and as trustee) was barred by the General Release and RMSV’s claim was barred by the statute of limitations while also noting that there appeared to be a triable issue of fact presented. 

 

  • Thus, this Court had not ruled on whether the Release applied to RMSV; it merely noted that there appeared to be a triable issue of material fact. 

 

  • In his response to defendant's special interrogatory #13, Ralph Dayan stated he was not disputing that he was bound by the general release.  In its response to defendant's special interrogatory #6 asking it if it was its contention that it was not bound by the general release, RMSV stated it did not contend that it was not bound by the general release.  In opposing defendant's motion for summary judgment, plaintiffs disputed UMF 22 that the release was binding on RMSV, asserting that Ralph Dayan did not control RMSV and managers of RMSV did not have authority without approval of members except as to ordinary course of business transactions, which the Release was not.  Plaintiffs did not dispute UMF #31/32 that Ralph Dayan filed a creditor claim in Walter Lembi's probate proceeding on behalf of RMSV and signed RMSV's creditor claim as a member of RMSV.  Nor did plaintiffs dispute UMF #33 that all members of RMSV serve as  managers of the LLC or UMF #34 that Ralph Dayan is a member of RMSV. 

 

  • Defendants have presented sufficient evidence to establish that the Release applied to RMSV.

 

  • Plaintiffs next argue that any award of attorney's fees should be apportioned between issues that were covered by the general release and those that were not.  "Where a cause of action based on the contract providing for attorney's fees is joined with other causes of action beyond the contract, the prevailing party may recover attorney's fees under section 1717 only as they relate to the contract action." Reynolds Metals Co. v. Alperson (1979) 25 Cal. 3d 124, 129.  "Attorney's fees need not be apportioned when incurred for representation on an issue common to both a cause of action in which fees are proper and one in which they are not allowed."  Id. at 129-30. 

 

  • The amended answer raised several affirmative defenses, including (1) the claim was barred by statute of limitations (9th affirmative defense) and (2) the claim was barred by a general release of claims and covenant not to sue that was binding upon plaintiffs (21st affirmative defense).  Summary judgment was granted against Ralph Dayan on the 21st affirmative defense and against RMSV on the 9th affirmative defense.  Thus, defendant prevailed against RMSV based upon an affirmative defense (statute of limitations) that did not arise from the general release which contained the attorney fees provision.  Although defendant also sought summary judgment against RMSV based upon the release, the court found there was a triable issue of material fact as to that issue and did not grant summary judgment on that ground (i.e., defendant did not prevail against RMSV on that ground).

 

  • Defendants argue that the attorney’s fee provision in the General Release is broad enough to cover non-contract claims.  The provision provides:  "The prevailing party shall be entitled to recover attorneys' fees and costs in any action or proceeding relating to the enforcement of the Release."  Defendants cite to Lerner v. Ward (1993) 13 Cal. App. 4th 155.  The appellate court found the language in the purchase agreement awarding attorney's fees to the prevailing party in any lawsuit/proceeding to which the agreement gave rise was sufficiently broad to encompass both contract and tort actions and included any action for fraud arising out of that agreement.  Here, Dayan (on behalf of himself and LLCs he controlled) and defendant entered into a contract calling for release of all claims and covenant not to sue.  Dayan and RMSV sued defendant claiming fraudulent conveyance.  Defendant sought enforcement of the contract as an affirmative defense.  The action arose from the alleged fraudulent conveyance, not the General Release.  The affirmative defense upon which defendant prevailed against RMSV did not arise from the general release. 
  • Defendant asserts $20,019.60 of the fees was attributable to her claim that the statute of limitations barred RMSV's claim.  This has been subtracted from the award of attorney’s fees.

·         The court agrees with Plaintiff Dyan that some of the fees appear excessive. The court has reduced the requested fees by 10%.

 

  • Moving party is directed to prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court.  The order is to be submitted directly to Judge Elizabeth K. Lee, Department 17.

 

 

_____________________________________________________________________


9:00

4

CIV 530026       MARIA ELDA SAN JUAN VS. CHRISTOPHER DEPUY, ET AL.

 

 

MARIA ELDA SAN JUAN                   TONY E. CARBALLO

CHRISTOPHER DEPUY                     MICHAEL J. DALEY

 

 

MOTION TO QUASH SERVICE OF SUMMONS BY MANDY KAUFMAN

 

 

  • The Motion to Quash Service is GRANTED.  Defendant’s declaration indicates that she resides in Luxembourg and there is no evidence that service was accomplished by a method prescribed in the Hague Convention. 

 

  • While Plaintiff argues the Convention does not apply she has not offered evidence sufficient to support his conclusion.  The Convention states that it shall not apply where the address of the person to be served with the document is not known.  However, this has been construed to mean the defendant’s whereabouts cannot be ascertained despite reasonable diligence.  Kott v. Superior Court (1996) 45 Cal.App.4th 1126.

 

  • Plaintiff bears the burden to show how service was affected.  She has not done so. Plaintiff provides no evidence of her efforts to obtain a foreign address for defendant other than informal discussions with Defendant’s counsel.  Her opposition indicates that defendant’s address was unknown and that the court permitted service by publication.

 

  • A review of the Declaration filed in support of the order for service by publication indicates plaintiff is on notice that defendant resides outside of the country.  More importantly, the Declaration admits that plaintiff’s counsel has been provided with the street address and city in which defendant resides in Luxembourg. The information came from a paralegal in the office of Defendant’s attorney.

 

  • Plaintiff’s counsel objected to the form by which the information was provided asserting that the information was not provided in a sworn Declaration.

 

  • Notwithstanding the method of delivery of the information, Plaintiff’s counsel now has the address which purports to belong to the Defendant.   The Hague Convention applies in this matter and must be followed for service on Defendant to be effective.

 

o   Moving party is directed to prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court.  The order is to be submitted directly to Judge Elizabeth K. Lee, Department 17.

 

 

_____________________________________________________________________


9:00

5

CIV 530042       VINESH PRASAD VS. ROSHNI PRASAD

 

 

VINESH PRASAD                         NOELL KUBOTA

ROSHNI PRASAD                         MARC D. BENDER

 

 

MOTION FOR SUMMARY JUDGMENT BY VINESH PRASAD

 

 

  • The Motion for Summary Judgment is DENIED. Summary judgment can be granted only if the motion disposes of the entire complaint and “the moving party is entitled to a judgment as a matter of law.” (Code of Civ. Proc. § 437c, subd. (c).) Plaintiff’s motion addresses only his claims of quiet title and cloud on title, but not the third cause of action for breach of implied covenant. The alleged breach of implied covenant is Defendant’s recording the Notice of Community Property Interest. (Complaint ¶16.)

 

  • A plaintiff that moves for summary judgment has the initial burden of establishing a prima facie case of ALL claims. (Code of Civ. Proc. § 437c, subd. (p)(1). The motion cites no authority suggesting that Roshni’s recording a Notice of Community Property Interest constituted a breach the implied covenant of good faith in relation to the Settlement Agreement. Therefore, it fails to establish that a breach occurred.

 

  • Further, the question of breach is a triable issue of fact, since the recorded document does not expressly make any claim to the real property at issue or the claims that were released. Rather, the claim is for money in “the amount of $395,200 00, against the Vivek Prasad Irrevocable Trust Dated November 22, 2011 ("Vivek Prasad Trust").” The Notice states that the Trust holds an interest in real property, but the Notice does not expressly assert a claim or interest in that real property.

 

  • For this same reason, the motion fails as to the first cause of action. A claim of quiet title seeks to adjudicate between competing claims of title. The moving papers fail to establish that Roshni asserts a competing interest in the Subject Property.

 

  • Furthermore, damage is an element of breach of implied covenant, and the moving papers do not establish damages. Since the motion does not address or meet the initial burden of persuasion as to the 3rd cause of action, summary judgment of the entire complaint cannot be granted. For failure to address all causes of action, the motion for summary judgment must be denied.

 

  • Plaintiff has not moved for summary adjudication as to any individual cause of action.

 

  • The alternative motion for summary adjudication as to Roshni’s Cross-complaint is denied. After Roshni filed her Cross-complaint, Plaintiff amended his notice of motion to include the alternative motion for summary adjudication as to the Cross-complaint, but did not file any additional evidence or separate statement of undisputed facts. Therefore, he relies entirely on his initial moving evidence, which demonstrates only that Roshni signed a Settlement Agreement releasing certain claims.

 

  • The Subject Matter of the Settlement Agreement was limited to the Subject Property and Roshni’s lawsuit. (Settlement Agreement ¶¶ I & II.) The Cross-complaint alleges two claims, both of which are based on allegations that: (1) Roshni used community funds to pay for expenses related the Subject Property, and (2) the Trust improperly possesses money that was earned by Roshni as community property.  (Cross-complaint ¶ 10, 12, 13.)  None of these claims assert any interest in the Subject Property. None of these claims seeks any disbursement from the Trust. None of these claims was asserted in Roshni’s previous action.

 

  • The Cross-complaint seeks reimbursement of monies that Vivek allegedly took from the joint account(s). The claims are outside of the Release that was contained in the Settlement Agreement. Therefore, the motion fails to establish that the cross-complaint is barred by the Settlement Agreement.

 

 

o   Moving party is directed to prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court.  The order is to be submitted directly to Judge Elizabeth K. Lee, Department 17.

 

 

____________________________________________________________________


9:00

6

CIV 531711       DOUGLAS LEE, ET AL. VS. CHRISTOPHER HARTMAN, ET AL.

 

 

DOUGLAS LEE                           EDWARD EGAN SMITH

CHRISTOPHER HARTMAN                   JOSEPH C. MCGOWAN

 

 

DEMURRER TO FIRST Amended COMPLAINT BY CHRISTOPHER HARTMAN

 

 

Defendant CHRISTOPHER HARTMAN’s Demurrer to First Amended Complaint is SUSTAINED IN PART and OVERRULED IN PART, as follows:

 

  • OVERRULED as to the First Cause of Action for Quiet Title; Third Cause of Action for Prescriptive Easement; Fourth Cause of Action for Equitable Easement; Fifth Cause of Action for Nuisance; Seventh Cause of Action for Breach of Contract; Eighth Cause of Action for Negligent Misrepresentation; and Ninth Cause of Action for Declaratory Relief.

 

·         SUSTAINED WITHOUT LEAVE TO AMEND as to the Second Cause of Action for Express Easement.  An express easement is a written agreement created by a grant or reservation of land, signed by both parties and typically recorded with the property’s deed.  See 6 Miller and Starr, Cal. Real. Est. (3d Ed. 2006) § 15:14; Thorstrom v. Thorstrom (2011) 196 Cal.App.4th 1406, 1415-1416. In construing an instrument conveying an easement, the plain language of the grant determines the scope of the easement.  Schmidt v. Bank of America (2014) 223 Cal.App.4th 1489, 1499-1500. 

 

Plaintiffs rely on the Grant Deed to the Lee/Tang Property for their assertion that they have an express easement to use the Parking Area located on Defendant’s property which, by Plaintiffs’ own admission, is not part of the 10 foot wide strip used for “ingress and egress and driveway purposes” but rather is "a paved rectangular parking area at the top of the Driveway Easement at the entrance from Glen Aulin Lane”.  (FAC ¶ 2.)  The Grant Deed makes no mention of a parking area.  Accordingly, there is no express easement over the Parking Area set forth in a written agreement, signed by both parties and recorded with the property’s deed.

 

·         SUSTAINED WITH LEAVE TO AMEND as to the Sixth Cause of Action for Slander of Title.  The elements of a slander of title cause of action are: (1) a publication, (2) without privilege or justification, (3) falsity, and (4) direct pecuniary loss.  Sumner Hill Homeowners’ Assn., Inc. v. Rio Mesa Holdings, LLC (2012) 205 Cal.App.4th 999, 1030.  Plaintiffs plead only conclusory allegations that Defendant published some kind of false statement that slandered their title and caused them damage, but no facts are alleged.  (FAC ¶¶ 32, 33.)  This claim is not sufficiently pled.

 

  • Defendant’s Request for Judicial Notice is GRANTED as to Exhibits A and B. 

 

  • Demurring party is directed to prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court.  The order is to be submitted directly to Judge Elizabeth K. Lee, Department 17.

 

 

_____________________________________________________________________


9:00

7

CLJ 210834       JA2109 DUMBARTON, LLC. VS. HOSSEIN S. RAD

 

 

JA2109 DUMBARTON LLC                  JOANNA KOZUBAL

HOSSEIN S. RAD                        PRO/PER

 

 

MOTION FOR TERMINATING SANCTIONS AGAINST SAMUEL RANSANY OR IN THE

ALTERNATIVE EVIDENTIARY/ ISSUE SANCTIONS FOR FAILURE TO OBEY COURT ORDERBY JA2109 DUMBARTON LLC

 

 

  • Plaintiff JA2109 Dumbarton, LLC’s Motion for Terminating Sanctions as to Defendant Samuel Ransany is GRANTED.  The court is imposing a terminating sanction pursuant to CCP §2023.010 for the Defendant’s failure to respond to authorized methods of discovery [special interrogatories, form interrogatories [UD and general], and request for production]. The court is striking defendant Hadi Ameri’s answer and entering his default pursuant to CCP 2023.010(d)(1). 

 

 

MOTION FOR TERMINATING SANCTIONS AGAINST HADI AMERI OR IN "THE ALTERNATIVE EVIDENTIARY/ISSUE SANCTIONS FOR FAILURE TO OBEY COURT ORDER BY JA2109 DUMBARTON LLC

 

 

  • Plaintiff JA2109 Dumbarton, LLC’s Motion for Terminating Sanctions as to Defendant Hadi Ameri is GRANTED.  The court is imposing a terminating sanction pursuant to CCP §2023.010 for the Defendant’s failure to respond to authorized methods of discovery [special interrogatories, form interrogatories [UD and general], and request for production]. The court is striking defendant Hadi Ameri’s answer and entering her default pursuant to CCP 2023.010(d)(1). 

 

  • Moving party is directed to prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court.  The order is to be submitted directly to Judge Elizabeth K. Lee, Department 17.

 

 

_____________________________________________________________________


9:00

8

CLJ 530442       CACH, LLC. VS. MARCO A. HERNANDEZ

 

 

CACH, LLC.                            GLORIA ZARCO

MARCO A. HERNANDEZ                    PRO/PER

 

 

MOTION FOR ORDER COMPELLING RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS; COMPELLING RESPONSES TO WRITTEN INTERROGATORIES; ESTABLISHING ADMISSIONS AND REQUEST FOR SANCTIONS BY CACH, LLC.

 

 

  • Plaintiff’s unopposed Motion to Compel Form and Special Interrogatories, Request for Production and Request to Deem Matters Admitted is GRANTED. 

 

  • Defendant Marco Hernandez shall provide verified responses without objection to the Form Interrogatories [Set One], Special Interrogatories [Set One] and Request for Production [Set One] within 10 days of service of the Notice of Entry of Order.  All those matters set forth in Plaintiff’s Request for Admissions [Set One] dated December 9, 2014 are hereby deemed admitted.

 

  • Defendant Marco Hernandez shall also pay Plaintiff monetary sanctions in the amount of $385.00 within 10 days of service of the Notice of Entry of Order. 

 

 

  • Moving party is directed to prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court.  The order is to be submitted directly to Judge Elizabeth K. Lee, Department 17.

 

 

_____________________________________________________________________


9:01

9

CLJ 204186       HSBC BANK USA, NATIONAL ASSOCIATION VS. ROSARIO

                   CARRERA, ET AL

 

 

HSBC BANK USA, NATIONAL ASSOCIATION   SCOTT M. HARRIS

ROSARIO CARRERA                       TIMOTHY L. McCANDLESS

 

 

MOTION FOR SUMMARY JUDGMENT BY HSBC BANK USA, NATIONAL ASSOCIATION,

 

 

  • Evidence Code 452(d), (h).

 

  • Plaintiff's unopposed Motion for Summary Judgment is GRANTED.  Plaintiff has established the required elements of unlawful detainer under Code of Civil Procedure §1161a: Plaintiff’s ownership and right to possession through the trustee’s private sale and recordation of the trustee’s deed upon sale; termination of the defendants’ right to possession pursuant to a 3-day notice to quit [CCP § 1161a] and the defendant’s continuing possession pursuant to the declaration of Kelsey Camello.  The burden then shifts to Defendants under CCP §437c(p)(1) to establish a triable issue of material fact.  No opposition has been forthcoming. 

 

  • Plaintiff is awarded a judgment for possession only.

 

  • Moving party is directed to prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court.  The order is to be submitted directly to Judge Elizabeth K. Lee, Department 17.

 

 

_____________________________________________________________________

 

 

 

 

 


POSTED:  3:30 PM

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