October 25, 2014
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 2M

 

OCTOBER 27, 2014

 

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 458121       UNION BANK OF CALIFORNIA, N.A. VS. EXCEPTIONAL

                   PRODUCTIONS, INC., ET AL.

 

 

UNION BANK OF CALIFORNIA, N.A.        MARK A. SERLIN

EXCEPTIONAL PRODUCTIONS, INC.         LAWRENCE A. JACOBSON

 

 

MOTION TO QUASH OR LIMIT DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS TO NON-PARTIES KATHRYN E. GORDON AND ANTONIO R. ALVAREZ BY BENJAMIN LEIKACH

 

 

·         Defendant’s Motion to Quash or Limit Deposition Subpoena for Production of Business Records is DENIED.  Defendant failed to include the required separate statement pursuant to Cal. Rules of Court, 3.1345.  Further, Defendant’s arguments on the merits of this motion were unavailing.   

 

·         Plaintiff was required to serve the deposition subpoena on all parties who have appeared in this action, which would include Defendant.  Weil & Brown, Cal. Proc. Before Trial, ¶ 8:541.1; CCP § 2025.220(b).  Defendant alleges that he never received notice of the deposition subpoena.  However, Defendant clearly received some sort of notice of the deposition subpoena at some point as he included it with his motion. 

 

·         Defendant’s argument that he never resided at the address in the subpoena is unavailing.  As Plaintiff points out, this is a clear clerical error and provides both the landlord and Defendant with sufficient notice that Plaintiff seeks information regarding Defendant’s residence.  This is not a sufficient basis for quashing the deposition subpoena.

 

·         Defendant cites too many statutory provisions that do not apply to this deposition subpoena.  Specifically, Defendant is not entitled to the protections of CCP §§ 1985.3; 1985.6.  CCP § 1985.3 applies to a specific set of custodian of records and landlords are not within that group.  CCP § 1985.6 applies to employees and employers which is not the case here.  Further, Defendant also relies on CCP § 703.140(b) to argue that his living expenses are exempt, but this only applies to Chapter 11 bankruptcy proceedings.  Defendant also refers to CCP § 706.051(b), but this applies solely to wage garnishments which are not at issue here.

 

·         Defendant further argues that the information sought by Plaintiff is not reasonably calculated to discovery admissible evidence under CCP § 2017.010.  However, Plaintiff is correct that the information in the rental lease application and rental payments may provide some information about Defendant’s finances and bank accounts.  Further, the deposition subpoena is not unduly burdensome and overbroad as it seeks only documents relating to the resident of Red Rock Road (Defendant).  Presumably the landlord does not have an extensive collection of documents related to Defendant except rental checks and the lease agreement.  Even though the request is for an unspecified period of time, this should not be unduly burdensome for the landlords to produce.  The request also does not exceed the reasonable scope needed to ascertain Defendant’s finances even though it requests information about past years.

 

·         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

2

CIV 514158       DIANE HOLBROOK VS. LOUIS CIAPPONI, ET AL.

 

 

DIANE HOLBROOK                        MARK HOOSHMAND

LOUIS CIAPPONI                        JANE L. TRIGERO

 

 

MOTION OF TO COMPEL AMENDED SITE INSPECTION; REQUEST FOR MONETARY SANCTIONS AS TO JANE TRIGERO OF KNOX RICKSEN, LLC BY DIANE HOLBROOK, KAITLEN SANDOVAL AND ALEX DE LA TORRE

 

 

·         Plaintiffs' motion to compel amended site inspection and for sanctions is denied. 

 

·         Defendants served a written response consisting solely of objections to the Amended Notice of Demand for Site Inspection on July 2.  (CCP §2031.210(a))  There was no statement that defendants would comply.  (CCP §2031.240(a)) Objections may be construed as an implicit refusal to produce. Standon Co. v. Superior Court (1990) 225 Cal.App.3d 898, 901.  Plaintiffs failed to bring a motion to compel a further response on the ground that the objections were without merit or too general within 45 days of service of the response.  (CCP §2031.310) A response consisting solely of objections need not be verified.  (CCP §2031.250(a)) Thus, if this were a motion to compel further responses, it would be untimely.

 

·         CCP §2031.320(a) authorizes a motion for an order compelling compliance if a party filing a response to a demand thereafter fails to permit the inspection "in accordance with that party's statement of compliance".  Here, plaintiff's' written response to the inspection demand consisted solely of objections; there was no statement of compliance.

 

·         Defendants are awarded sanctions in the amount of $2,835.00. 

 

·         Moving attorney 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 to 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 514498       BERNARDO R. CARRERA, ET AL. VS. FREMONT INVESTMENT &

                   LOAN, ET AL.

 

 

BERNARDO R. CARRERA                   TIMOTHY L. MCCANDLESS

FREMONT INVESTMENT & LOAN

 

 

MOTION FOR JUDGMENT ON THE PLEADINGS BY WELLS FARGO BANK, N.A., MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AND HSBC BANK USA, NATIONAL ASSOCIATION

 

 

·         Defendants WELLS FARGO BANK, N.A.; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; and HSBC BANK USA, N.A., as Trustee for HOME EQUITY LOAN TRUST SERIES ACE 2006-HE1’s Motion for Judgment on the Pleadings is GRANTED.  Code Civ. Proc. § 438(c) provides that a defendant may move for judgment on the pleadings on the ground that the complaint does not state facts sufficient to constitute a cause of action.  Section 438(g)(1) further provides that a party whose demurrer was previously overruled may bring a subsequent motion for judgment on the pleadings on the same grounds, “provided that there has been a material change in applicable case law or statute since the ruling on the demurrer.” 

 

·         The Court finds that there has been a material change in the applicable case law since Defendants’ demurrer to First Amended Complaint was heard in August 2013.  Each of Plaintiffs’ remaining claims is premised on the allegation that their loan was transferred to a securitized trust after the trust’s closing date.  (FAC ¶¶ 95, 104-115.)  Based on the holding in Glaski v. Bank of America, N.A. (2013) 2013 WL 4037310, the Court overruled Defendants’ demurrer to these causes of action.  Glaski stands for the proposition that under New York trust law, “a transfer of a deed of trust in contravention of the trust documents is ‘void, not merely voidable’, and, under California law, ‘a borrower can challenge an assignment of his or her note and deed of trust if the defect asserted would void the assignment.’”  Diunugala v. JP Morgan Chase Bank, N.A. (S.D. Cal. 2013) 2013 WL 5568737, at *8. 

 

·         However, over the past two years, the Glaski decision has been criticized in multiple other Court of Appeal decisions.  The reasoning is that a borrower cannot state a claim based on a supposedly defective transfer of the loan to a closed investment trust, because (a) the borrower is not a party to the PSA governing the trust, and (b) the borrower is not prejudiced, because his or her loan obligations still remain the same.  See Mendoza v. JP Morgan Chase Bank, N.A. (2014) 228 Cal.App.4th 1020, 1034-1035; Jenkins v. JP Morgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 514-515; Siliga v. Mortgage Elec. Reg. Systems, Inc. (2013) 219 Cal.App.4th 75, 85.  Glaski ignores the principle that “a plaintiff in a suit for wrongful foreclosure has generally been required to demonstrate [that] the alleged imperfection in the foreclosure process was prejudicial to the plaintiff’s interests.”  Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.256, 272.

 

·         Accordingly, Defendants’ motion is granted on the ground that Plaintiffs have failed to state a valid claim under the “late transfer” theory set forth in Glaski. 

 

·         Plaintiffs’ Eighth, Eleventh, and Fourteenth causes of action further fail on the independent ground that tender has not been alleged.  “A mortgagor of real property cannot, without paying his debt, quiet his title against the mortgagee.”  Miller v. Provost (1994) 26 Cal.App.4th 1703, 1707.  The offer of tender must be of the amount borrowed.  Arnolds Management Corp. v. Eischen (1984) 158 Cal.App.3d 575, 578.  The plaintiff must (1) demonstrate a willingness to pay and (2) show the ability to pay.  In re Worcester (9th Cir. 1987) 811 F.2d 1224, 1231. 

 

·         Similarly, California law requires Plaintiff to allege tender of the amount of his indebtedness in order to maintain any cause of action for irregularity in the foreclosure procedure.  Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1109.  This requirement applies to claims “implicitly integrated” with the foreclosure sale – not merely claims that challenge the sale, but also those that seek damages related to the sale.  Karlsen v. American Sav. & Loan Assn. (1971) 15 Cal.App.3d 112, 121.  The plaintiff must (1) demonstrate a willingness to pay and (2) show the ability to pay.  In re Worcester (9th Cir. 1987) 811 F.2d 1224, 1231. 

 

·         To the extent that Plaintiffs attempt to state a claim by relying on allegations of predatory lending, conduct at loan origination, or fraud in the FAC, this argument is rejected.  The Court has already sustained, without leave to amend, the demurrer to all causes of action that are not based on the holding in Glaski. 

 

·         Defendants’ Request for Judicial Notice is GRANTED as to Exhibits A – H. 

 

·         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 519076       ROBERT MCNAMARA, ET AL. VS. EMBASSY SUITES

                   MANAGEMENT, LLC, ET AL.

 

 

ROBERT MCNAMARA                       RICHARD H. SCHOENBERGER

EMBASSY SUITES MANAGEMENT, LLC        JOSEPH A. AGUILAR

 

 

MOTION FOR LEAVE TO AMEND COMPLAINT FOR DAMAGES TO ALLEGE PUNITIVE DAMAGES BY ROBERT MCNAMARA AND DIANE MCNAMARA

 

 

·         This matter has been continued to November 6, 2014 at 9:00 a.m.

 

 

_____________________________________________________________________

 

9:00

5

CIV 526476       STANDARD FIBER, LLC VS. TEETEX, LLC, ET AL.

 

 

STANDARD FIBER, LLC                   HOWARD HOLDERNESS

TEETEX, LLC                           AMIT KURLEKAR

 

 

MOTION TO QUASH BY SHANGHAI TIANAN TEXTILE CO., LTD  

 

 

MOTION TO QUASH BY SHANGHAI TIANAN HOME CO., LTD  

 

 

MOTION TO QUASH BY ANWEN "ALVIN" LI

 

 

·         As to Defendants Anwen Li and Shanghai Tianan Textile: The court directs Defendants’ counsel to appear and inform the court if either Defendant has been served. If not, the motion is premature.

 

·         If service has occurred, then the motion should be granted the same as Defendant Shanghai Tianan Home:

 

·         The motion to quash is granted.

 

·         The forum selection clause does not support the motion to quash.  The express language of the clause states that any party “is entitled to” initiate arbitration or lodge a complaint in court.  The phrase, “is entitled to” is not ambiguous.  It means that each party has a right to initiate arbitration or file suit.  The clause provides each party with an option “to submit the objection or dispute to China International Economic and Trade Arbitration Commission for arbitration, or lodge a complaint to the court of jurisdiction.” Even if “the court of jurisdiction” were interpreted to mean a Chinese court, the clause is permissive (“entitled”) and provides an option; it does not mandate a forum in China.

 

·         The evidence also does not support a finding of general jurisdiction.  Defendant has no property, bank accounts, residence, or domicile in California. Defendant conducts no commerce here.  The facts are undisputed that Defendant has no regular or systematic contacts with California sufficient to support subjecting Defendant to the general personal jurisdiction of California.

 

·         The evidence also does not support a finding of specific jurisdiction.  The facts do not demonstrate that Defendant has purposefully availed himself/itself of forum benefits.  Defendant pays no taxes and receives no benefits from the state.  The controversy is not related to nor arises out of Defendant's contacts with California, as no contacts exist.  Plaintiff shows that, at most, Defendant communicated with Standard Fiber personnel who were in California, but committed no acts in the state pertaining to the dispute.

 

·         Finally, asserting personal jurisdiction would not comport with “fair play and substantial justice.” Plaintiff admits that all of Defendant’s actions related to the dispute occurred in China.  (See 2nd Amended Complaint ¶ 60.)  By representing Teetex’s interests and Standard Fiber’s interests solely within China, Defendant receives no benefits or protections of the State of California, other than the mere option to bring suit here; the contract at issue provides that litigation may occur in China.  There appears no purpose to subjecting Defendants to jurisdiction in California when they have no presence and commit no acts of commerce within the state.

 

·         If the tentative ruling is uncontested, it shall become the order of the Court.  Thereafter, Defendant shall prepare for the Court’s signature a written order consistent with the above ruling, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, 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 527376       BLAIR N. GEORGAKAS VS. FORD MOTOR COMPANY, ET AL.

 

 

BLAIR N. GEORGAKAS                    M. NICHOLAS NITA

FORD MOTOR COMPANY                    GARY T. LAFAYETTE

 

 

MOTION TO COMPEL THE DEPOSITION OF DEFENDANT JAMES FORD'S PERSON(S) MOST QUALIFIED BY BLAIR N. GEORGAKAS

 

 

MOTION TO COMPEL THE DEPOSITION OF DEFENDANT FORD MOTOR COMPANY'S PERSON(S) MOST QUALIFIED BY BLAIR N. GEORGAKAS

 

 

·         These motions are moot.  A Notice of Settlement was filed on October 20, 2014.

 

 

_____________________________________________________________________

 

9:00

7

CLJ 210138       JOSEPH R. RAGNI, ET AL. VS. JOSE G. COMPARAN, ET AL.

 

 

JOSEPH R. RAGNI                       DAVID P. UCCELLI

JOSE G. COMPARAN                      PRO/PER

 

 

MOTION FOR SUMMARY JUDGMENT AS TO COMPLAINT (UNLAWFUL DETAINER)

of RAGNI BY JOSEPH R. RAGNI, JAMES M. RAGNI AND MARYANN RAGNI

ROTTERMAN

 

 

·         Plaintiffs’ Request for Judicial Notice is GRANTED pursuant to Evidence Code §452(d), (h).

 

·         Plaintiffs’ unopposed Motion for Summary Judgment is GRANTED.  Plaintiffs have established the required elements of unlawful detainer under Code of Civil Procedure §1161a: Plaintiffs’ ownership and right to possession; termination of the defendants’ right to possession pursuant to a 60-day notice to quit [Civil Code §1946.1(b)] and the defendants’ continuing possession.  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 and daily fair rental value of $53.17 per day from and after September 20, 2014 to the date of entry of judgment.

 

·         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 522433       DISCOVER BANK VS. GAMALIEL IGLESIAS

 

 

DISCOVER BANK                         STEPHEN S. ZELLER

GAMALIEL IGLESIAS                     PRO/PER

 

 

MOTION TO SET ASIDE JUDGMENT AND REFER THE MATTER FOR BINDING ARBITRATION BY GAMALIEL IGLESIAS

 

 

·         Since Judge Scott presided over the trial, this post-trial motion should be heard by Judge Scott.  Moving party is directed to contact Judge Scott’s clerk at (650) 261-5125 in order to select a hearing date.

 

 

__________________________________________________________________

 

9:01

9

CLJ 209779       MARIA SOSA vs. NATHANIEL BASOLA SOBAYO, et al.

 

 

MARIA SOSA                            STEVE LEYDIKER

NATHANIEL BASOLA SOBAYO               PRO/PER

 

 

DEMURRER TO COMPLAINT (UNLAWFUL DETAINER) OF SOSA BY NATHANIEL BASOLA SOBAYO DBA KINGSWAY CAPITAL PARTNERS, LLC

 

 

·         The 27 page demurrer filed by defendant Sobayo is overruled.  The Complaint alleges on its face that Plaintiff is the owner and landlord of the property at issue.  (See Complaint ¶ 4; Lease, Exhibit 1 to Complaint.)

 

·         Defendant shall file and serve an Answer no later than November 3, 2014.

 

·         If the tentative ruling is uncontested, it shall become the order of the Court.  Thereafter, counsel for Plaintiff shall prepare for the Court’s signature a written order consistent with the above ruling, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.  The order is to be submitted directly to Judge Elizabeth K. Lee, Department 17.

 

 

_____________________________________________________________________

 

 

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