September 19, 2017
Law & Motion Department 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 RICHARD H. DuBOIS

Department 16

 

400 County Center, Redwood City

Courtroom 7A

 

Monday, September 18, 2017

 

NOTICE TO ALL COUNSEL

 

Until further order of the Court, no endorsed-filed “courtesy copy” of pleadings is required to be provided to the Law and Motion Department.

 

 

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.

 

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

LineS: 1 & 2

17-CIV-01353     NICHOLAS NORTHROP, et al. vs. LATU PARKVIEW PROPERTY

                     MANAGEMENT, INC., et al.

 

 

VANESSA BAIN                           DWANA BAIN

PARKVIEW PROPERTY MANAGEMENT            MARK C. CARLSON

 

 

1. LATU PARKVIEW PROPERTY MANAGEMENT, INC., JOAN LATU AND STEVEN GUY COULSTON’S MOTION TO STRIKE PORTIONS OF THE PLAINTIFF’S FIRST AMENDED COMPLAINT

TENTATIVE RULING:

 

This matter is continued to October 4, 2017 at 9:00 a.m. in the Law and Motion Department.

 

 

2. LATU PARKVIEW PROPERTY MANAGEMENT, INC., JOAN LATU AND STEVEN GUY COULSTON’S MOTION FOR JUDGMENT ON THE PLEADINGS AS TO PLAINTIFFS’ FIRST AMENDED COMPLAINT

TENTATIVE RULING:

 

This matter is continued to October 4, 2017 at 9:00 a.m. in the Law and Motion Department.

 



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17-CIV-01443     ABS-CBN INTERNATIONAL vs. X O CITY 2005, et al.

 

 

ABS-CBN INTERNATIONAL                  SEONG H. KIM

X O CITY 2005                          PRO/PER

 

 

PLAINTIFF’S MOTION TO EXTEND TIME TO SERVE COMPLAINT

TENTATIVE RULING:

 

Plaintiff’s motion to extend the time to serve the complaint is GRANTED.  Time is extended so that the complaint may be served on or before November 30, 2017.

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.

 

 



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17-CIV-03244     SHIN LANG PANG vs. BANK OF AMERICA, N.A.

 

 

SHIN LANG PANG                         STEPHEN R. GOLDEN

BANK OF AMERICA, N.A.                  MARK J. KENNEY

 

 

DEFENDANT’S HEARING ON DEMURRER

TENTATIVE RULING:

 

This matter is dropped from calendar as a dismissal is on file.

 



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CIV522693     J.B.B. INVESTMENT, ET AL. VS R. THOMAS FAIR, ET AL.

 

 

J.B.B INVESTMENT PARTNERS LTD.          CHRISTOPHER SARGENT

R. THOMAS FAIR                         PATRICK BALDWIN

 

 

R. THOMAS FAIR’S MOTION FOR ORDER STAYING ACTION PENDING APPEAL

TENTATIVE RULING:

 

Defendant R. Thomas Fair’s motion to stay this action pursuant to CCP §916 pending resolution of his appeal from the granting of a motion to strike his cross-complaint is DENIED. 

 

According to Varian Med. Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, if trial court proceedings on a particular matter would have any impact on the effectiveness of the appeal, the proceedings are stayed.  The effect test is met and the stay is triggered where: 1) the trial court proceeding directly or indirectly seeks to enforce, vacate or modify the appealed judgment or order 2) the trial court proceeding substantially interferes with the appellate court’s ability to conduct the appeal 3) the possible outcomes on appeal and the actual or possible results of the trial court proceedings are irreconcilable or 4) the very purpose of the appeal is to avoid the need for the trial court proceeding.

 

Defendants/cross-complainants fail to establish that any of these circumstances are present in this case.  Further litigation of plaintiffs’ complaint will not directly or indirectly enforce, vacate or modify the order striking the cross-complaint.  Nor will further proceedings on plaintiffs’ complaint affect the appellate court’s ability to determine the propriety of the order striking the cross-complaint.  Defendants make no attempt to establish that any potential outcome on appeal will be irreconcilable with an actual or possible result regarding the complaint, which addresses conduct distinct from the cross-complaint.  Finally, the purpose of the appeal is not to avoid any further litigation of plaintiffs’ complaint.  The appeal only concerns defendants/cross-complainants’ ability to pursue their affirmative claims.

 

Additionally, the automatic stay covers only the causes of action sought to be stricken.  It does not affect trial court proceedings on other joined claims.  Weil, California Practice Guide Civil Pro. Before Trial. §7:1191

 

 

To the extent defendants/cross-complainants also seek a stay under CCP §918, the court declines to exercise its discretion to stay this action.   

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.

 



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CIV525919     CHARLES TANIGUCHI ET AL. VS. RESTORATION HOMES LLC.

 

 

CHARLES TANIGUCHI                      MATTHEW MELLEN

RESTORATION HOMES, LLC.                GLENN H. WECHSLER

FCI LENDER SERVICES                    JASON GOLDSTEIN

 

 

FCI LENDER SERVICES, INC’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATION OF ISSUES.

TENTATIVE RULING:

 

The Motion of Defendant FCI Lender Services, Inc. (“Defendant”) for Summary Judgment or in the alternative, Summary Adjudication, to the First Amended Complaint of Plaintiffs Charles Taniguchi and Marie Louise Taniguchi (“Plaintiffs”), is ruled on as follows:

 

(1) Plaintiffs’ Request for Judicial Notice is GRANTED.

 

(2) Plaintiff’s Supplemental pleading filed September 5, 2017 is stricken and is not considered by the Court.

 

(3) Defendant’s Motion for Summary Judgment is DENIED. 

 

Plaintiffs’ First Amended Complaint alleges one cause of action for negligence against Defendant. 

 

Defendant argues that Plaintiffs failed to disclose any claim against Defendant in their bankruptcy proceedings, and therefore this claim is barred by judicial estoppel.  Plaintiff raises a triable issue of material fact as to this issue though, since it appears this claim was raised in the bankruptcy proceeding and the proceeding only concerned Mr. Taniguchi.  (See Plaintiffs’ Request for Judicial Notice, Exh. A.) 

 

Defendant also argues that it owed no duty of care to Plaintiffs as a matter of law.  The court previously overruled Defendant’s Demurrer on this ground.  (See Plaintiffs’ Request for Judicial Notice, Exhs. E, F.)  Defendant nevertheless argues that this ruling is not res judicata and may be changed in the discretion of the trial court.  (See Collins v. Marvel Land Co. (1970) 13 Cal.App.3d 34, 45 [“Until entry of judgment a ruling upon a demurrer is not res judicata and may be changed in the discretion of the trial court.”].)  In support, Defendant relies on a recent opinion by the Court of Appeal in Conroy v. Wells Fargo Bank, N.A. (2017) 13 Cal.App.5th 1012.  Rehearing has been granted in Conroy though, and this opinion is no longer citeable.  Thus, the court finds no basis to revisit this issue on summary judgment.

 

Defendant further argues that even if it had a duty of care to Plaintiffs, it did not breach any duty of care because it accurately input Plaintiffs’ loan servicing information from the prior loan servicer, SN Servicing Corporation, and appropriately serviced the loan thereafter.  (See Defendant’s Undisputed Material Facts nos. 8, 9.) Defendant has not provided sufficient evidence to meet its burden on this issue though.  (See C.C.P. sec. 437c(p)(2).)  Defendant contends that Plaintiffs’ December 2012 payment was untimely, which is an event that voided the 2009 Balloon Loan Modification Agreement and rendered all prior deferred amounts due and owing.  (See Defendant’s Reply, 1:14-24, 2:10-21.)  Even though Plaintiffs’ check is dated December 10, 2012, it was not received until January 4, 2013.  However, this check was made out to SN Servicing, and Defendant has not presented any evidence to support when this payment was received by SN Servicing.  Plaintiffs’ bank records only show it was deposited on January 4, 2013.  (See Goldstein Decl., Exh. A.)  Further, no payment is reflected in Defendant’s Loan Master Report on January 4, 2013, but instead the first payment is a wire payment made on January 16, 2013.  (See Griffith Decl., Exh. 7.) 

 

Additionally, none of Defendant’s declarations explain the date and amount of payments received from Plaintiffs, nor do the declarations show that such payments were properly credited.  Instead, Defendant simply attaches a copy of its Loan Master Report and Plaintiffs’ bank records contending that the “activity” on the loan while Defendant serviced it, corresponded with Plaintiffs’ bank statements.  (See Defendant’s Undisputed Material Fact no. 9.)  In reviewing Plaintiffs’ bank records though, they appear to show four checks with the same check number, 3556, for $2,665.01 with effective dates on February 6, 2013 or February 12, 2013.  (See Goldstein Decl., Exh. A.)  All of these payments are not reflected in Defendant’s Loan Master Report though. 

 

In light of the above, Defendant has not presented sufficient evidence to meet its burden of showing that Plaintiffs cannot establish a breach of the duty of care.  (See C.C.P. § 437c(p)(2).)  The court therefore need not review Plaintiffs’ evidence to determine whether a triable issue of material fact exists.  (Id.)    

 

(4) Defendant’s Motion for Summary Adjudication to Plaintiffs’ claim for emotional distress damages is DENIED.  Defendant is not seeking to summarily adjudicate the entire claim for damages, but only the emotional distress damages sought by Plaintiffs in connection with this cause of action.  Under C.C.P. section 437c(f), a punitive damages claim is the only type of damages claim that may be summarily adjudicated without disposing of a cause of action.  (DeCastro West Chodorow & Burns, Inc. v. Sup. Ct. (1996) 47 Cal.App.4th 410.)  Alternatively, the court may summarily adjudicate a claim for damages that would not dispose of the cause of action if the parties comply with C.C.P. section 437c(t), but there is no evidence of such compliance here.

 

(4) Defendant’s Motion for Summary Adjudication to Plaintiffs’ claim for punitive damages is DROPPED.  The punitive damages claim has already been stricken.  (See Plaintiffs’ Request for Judicial Notice, Exh. F.)

 

(5) Defendant’s Evidentiary Objections to paragraphs 9, 10, 12, 13, 14, 17, 18, 19, 20, 21, 22, 23, 24 and 25 of Plaintiff Marie Taniguchi’s Declaration, are OVERRULED.

(6) Defendant’s Evidentiary Objections to paragraphs 6, 7, 8 and 9 of Jessica Galletta's Declaration, are OVERRULED. 

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.

 



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Line: 7

CIV534203     JONATHAN MCDOUGALL VS. MANUEL SEDILLO, ET AL.

 

 

JANE DOE #1                            TODD P. EMANUEL

MANUEL SADILLO                         PRO/PER

COUNTY OF San Mateo                    DAVID LEVY

 

 

JANE DOE #2’S MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS

TENTATIVE RULING:

 

This matter is continued to September 26, 2017 at 9:00 a.m. in the Law and Motion Department.

 

 



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Line: 8

CIV536047     MT. DIABLO, ET AL. VS. SOUTH BAY REAL ESTATE, ET AL.

 

 

MT. DIABLO INVESTMENT GROUP, LLC             MILLA L. LVOVICH

SOUTH BAY REAL ESTATE COMMERCEGROUP LLP      MARK A. RUSHIN

 

 

MOTION TO ENFORCE THE PARTIES SETTLEMENT AGREEMENT

TENTATIVE RULING:

 

Plaintiff’s (MIG) motion, entitled “Motion to Enforce Settlement”, which actually requests entry of judgment, is DENIED.

 

A party to a signed settlement in writing may move the Court to “enter judgment pursuant to the terms of the settlement.” (Code of Civ. Proc. Sect. 664.6.) If requested by the parties, the Court may also retain jurisdiction to “enforce the settlement.”  (Id.) The present motion does not seek either of these forms of relief.

 

MDIG’s Notice of Motion asks for “entry of a judgment for $67,500 and penalties of $300,000, plus $1,830 in attorney’s fees and costs.” (Notice at 1:22-23.) Entry of judgment in that manner is not “pursuant to the terms of the settlement,” which calls for a single $125,000 payment and monthly payments of $13,500 for 24 months. The judgment MDIG requests in the Notice does not reflect the terms of the settlement. The settlement is for $450,000; the motion seeks $367,500.

 

MDIG’s request for $67,500 appears to consist of five monthly $13,500 payments that South Bay failed to pay. The sum of $300,000 appears to reflect five penalties of $50,000 each. If this is what MDIG seeks, then the motion is one to “enforce the settlement,” not for entry of judgment. The Court cannot grant this relief for two reasons. 

 

First, the Notice of Motion does not indicate that MDIG is seeking an order enforcing the settlement; it states only that MDIG seeks entry of judgment. Entry of judgment would end the action, since there can be only one judgment in an action. (Bank of Am. Nat. Tr. & Sav. Ass'n v. Superior Court (1942) 20 Cal. 2d 697, 701.) MDIG’s motion suggests that MDIG could return to court repeatedly each time South Bay missed a payment. The single-judgment rule does not permit that course of action.

 

Second, the Agreement does not appear to permit multiple penalties of $50,000. The wording of the Agreement sets forth a single penalty of $50,000. (See Agreement para. 4 (“an” additional sum to be added “to the total settlement amount” of $450,000 “upon breach”).) The language of paragraph 4 does not state that each breach results in a separate $50,000 penalty. MDIG’s interpretation would unreasonably mean that 25 penalties could be incurred for a total of $1.25 million on a settlement of $450,000.

 

Denial of this motion is without prejudice to MDIG’s bringing a motion that complies with Code of Civil Procedure Section 664.6.

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.

 



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Line: 9

17-UDU-00708  ALLAN & HENRY, INC. vs. CEPHAS ENTERPRISES, INC., et al.

 

 

ALLAN & HENRY, INC.                    PAYMON HIFAI

CEPHAS ENTERPRISES, INC.               pro/per

 

 

plaintiff’s motion to compel discovery; deem facts admitted; waive objections to responses; and request for sanctions             

TENTATIVE RULING:

 

Plaintiff’s motion to compel is DENIED WITHOUT PREJUDICE for failure to establish that it was served in compliance with CCP §1170.8 and CRC 3.1347.

 

CRC 3.1347 provides that in an unlawful detainer action, notice of a discovery motion must be given in compliance with §§1170.8 and 1013.  §1170.8 states that a discovery motion may be made upon giving five days’ notice.  §1013 requires an additional five days’ notice where service is by mail.  In this case, the POS indicates the motion was served by mail on August 11, 2017, just 7 days before the hearing date.  

 

In addition, the POS indicates that the motion was served on defendant by mail addressed to 439 Eccles Avenue in San Francisco, CA.  The address of record is in South San Francisco at 439 Eccles Ave. San Francisco, CA 94080.  The actual address is in South San Francisco.  Although plaintiff used the South San Francisco ZIP Code, it is unclear whether defendant ever received the motion. 

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.

 


 

 

 

 

 


POSTED:  3:00 PM

 

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