April 18, 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 JOSEPH C. SCOTT

Department 25

 

400 County Center, Redwood City

Courtroom 2G

 

Monday, April 20, 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 521687       TINA MARIE HOLEMAN VS. ENA MARIA LAL

 

 

TINA MARIE HOLEMAN                    DAVID W WESSEL

ENA MARIA LAL                         BRIAN J. MCSHANE

 

 

MOTION FOR ORDER AWARDING MONETARY SANCTIONS AGAINST DEFENDANT UPS AND IT’S LAWYERS BY TINA MARIE HOLEMAN

 

 

·         Continued to May 21, 2015 at 9:00a.m. on the Court’s motion.

 

 

_____________________________________________________________________

9:00

2

CIV 522259       LYNN ROGERS VS. GLENWOOD INN CASA ON THE PENINSULA

 

 

LYNN ROGERS                           EDWARD F. CULLEN

GLENWOOD INN CASA ON THE PENINSULA    MATTHEW P. QUIRING

 

 

DEMURRER TO FIRST Amended COMPLAINT BY GLENWOOD INN CASA ON THE PENINSULA

 

 

  • The Demurrer by Defendants Wai Chang, Glenwood Inn, LLC and Glenwood Inn Casa on the Peninsula to the first cause of action for negligence is SUSTAINED WITHOUT LEAVE TO AMEND. Plaintiff cites no authority for either a common law or statutory duty of care that a residential facility owes to the daughter of a resident.

 

  • The Demurrer by Defendants Wai Chang, Glenwood Inn, LLC and Glenwood Inn Casa on the Peninsula to the second cause of action for negligent misrepresentation is SUSTAINED WITHOUT LEAVE TO AMEND. The complaint alleges no acts directed against Plaintiff, which would constitute any legally recognized tort, intentional or otherwise.

    

  • The Demurrer by  Defendants Wai Chang, Glenwood Inn, LLC and Glenwood Inn Casa on the Peninsula to the third cause of action for Negligent Infliction of Emotional distress - direct-victim is SUSTAINED WITHOUT LEAVE TO AMEND.  A cause of action for negligent infliction of emotional distress is not a separate tort but a subspecies of a negligence claim. Ragland v. U.S. Bank Nat. Assn. (2012) 209 Cal. App. 4th 182, 205. Thus, plaintiff must allege the existence of a duty. “That duty may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship.” [ Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 985]. As set forth above regarding the first cause of action, the Complaint fails to allege any duty owed by any Defendant against Plaintiff.

 

  • The Demurrer by by Defendants Wai Chang, Glenwood Inn, LLC and Glenwood Inn Casa on the Peninsula to the fourth cause of action for invasion of private affairs is OVERRULED.  The allegations that Defendants allowed or required unwanted people to be present during Plaintiff’s visits and that the Defendants recorded Plaintiff’s conversations with her father without her consent are sufficient to allege an intrusion. Whether the intrusions were “highly offensive to a reasonable person” is a question of fact that cannot be resolved on demurrer. Further, if Plaintiff’s conversations with her father were confidential, then the Complaint states a claim for civil liability under Penal Code section 637.2 (civil liability for violation of Penal Code section 632.)

 

  • If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Defendants shall 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 written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court. 

 

 

_____________________________________________________________________


9:00

3

CIV 528242       ANA RUBIO, ET AL. VS. EQR-WOODLAND PARK B, LP., ET AL

 

 

ANA RUBIO                             KENNETH GREENSTEIN

EQR-WOODLAND PARK B, LP.              JACK C. NICK

 

 

MOTION TO STRIKE PORTIONS OF PLAINTIFFS' COMPLAINT BY EQR-WOODLAND PARK B. LP., ET AL.

 

  • The Motion to Strike Portions of Plaintiffs’ First Amended Complaint by Defendants EQR Woodland Park B, LP; ERP Operating Limited Partnership; and Equity Residential Management, LLC is DENIED.  The FAC sufficiently alleges that the claimed oppression, fraud or malice was known and consciously disregarded, ratified, authorized or committed by an officer, director or managing agent of the corporation.[ Civil Code 3294(b); Scannell v. Riverside County (1984) 152 Cal App 3d 596, 614].

 

  • Prevailing 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 Joseph C. Scott, Department 25.

 

 

_____________________________________________________________________


9:00

4

CIV 528506       MICHAEL GAO KUMAR VS. TANFORAN PARK SHOPPING CENTER

 

 

MICHAEL GAO KUMAR                     DANIEL R. STERRETT

TANFORAN PARK SHOPPING CENTER         SONIA C. MERIDA

 

 

MOTION TO AMEND ANSWER BY TANFORAN PARK SHOPPING CENTER LLC

 

 

  • The Unopposed Motion by Defendant Tanforan Park Shopping Center, LLC for Leave to File an Amended Answer is GRANTED pursuant to CCP §§473, 576.

 

  • Moving party shall file its Amended Answer, consistent with its proposed Amended Answer, no later than May 1, 2015.

 

  • 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 Joseph C. Scott, Department 25.

             

 

 

MOTION FOR LEAVE TO FILE CROSS COMPLAINT BY TANFORAN PARK SHOPPING CENTER LLC

 

 

  • The Unopposed Motion by Defendant Tanforan Park Shopping Center, LLC for Leave to File a Cross-Complaint is GRANTED pursuant to CCP §426.50.

 

  • Moving party shall file and serve its Cross-Complaint, consistent with its proposed Cross-Complaint, no later than May 1, 2015.

 

  • 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 Joseph C. Scott, Department 25.

 

 

_____________________________________________________________________


9:00

5

CIV 529381       TAI L. FILO VS. AEGIS WHOLESALE CORPORATION, ET AL.

 

 

TAI L FILO                            JESSICA GALLETTA

NATIONSTAR MORTGAGE, LLC              LASZLO LADI

 

 

DEMURRER TO THIRD Amended COMPLAINT BY NATIONSTAR MORTGAGE, LLC., ET AL.

 

 

  • Demurrer to the First and Second Causes of Action is SUSTAINED WITHOUT LEAVE TO AMEND.

 

  • A demurrer admits all allegations of fact, including “any pleaded meaning to which the instrument is reasonably susceptible.” (Aragon-Haas v. Family Security Ins. Services (1991) 231 Cal.App.3d 232, 239.)  Both parties acknowledge that neither the Forbearance Agreement nor the original Promissory Note states clearly when Plaintiff must pay the difference between her regular payments and the reduced payments. Defendant argues that Section 3(A) of the Deed of Trust applies. (See Memorandum of Points and Authorities in Support of Demurrer at 5:8-13.)  However, the final sentence of section 3(A) states that “If, on July 1, 2037, I still owe amounts under this Note, I will pay those amounts in full on that date, which is called the “Maturity Date.”

 

  • Thus, the Deed of Trust envisions situations in which a balance might exist at the end of the loan term after Plaintiff has paid all the required monthly payments. In that event, the balance is due on the maturity date.  Plaintiff’s argument that the difference from her Forbearance is not due until the maturity date (July 2037) is reasonably supported by this provision. Since Plaintiff alleges an interpretation to which the Contract is reasonably susceptible, the Court must accept it as true for demurrer. Under Plaintiff’s interpretation, Defendant’s rejection of Plaintiff’s payments could constitute a breach of contract or breach of implied covenant of good faith and fair dealing, or both.

 

  • The First and Second Causes of action fail, however, to allege any compensable damage. (TAC ¶¶ 41 & 56.) The late fees and arrears result from Defendant’s contention that Plaintiff failed to pay the forbearance amount when the Forbearance Agreement ended. If Defendant is correct, then no breach occurred and the late fees and arrears are not damage. If Defendant is wrong, then the late fees and arrears would not be payable. In either event, the late fees and arrears are not damage that Plaintiff has incurred.

 

  • The lien for $36,000 is not damage because the lien is offset by Plaintiff’s receiving $36,000 from Keep Your Home California. (TAC ¶ 26.) Typically, the amount of a Deed of Trust is equal to the amount of the loan. The lien reduces equity on Plaintiff property, but Plaintiff alleges that she received $36,000 in exchange for the lien. The lien is not damage. 

       

  • If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Defendant shall 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 written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court. 

 

 

_____________________________________________________________________


9:00

6

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

 

 

JA2109 DUMBARTON LLC                  JOANNA KOZUBAL

HOSSEIN S. RAD                        PRO/PER

 

 

DEMURRER TO FIRST Amended COMPLAINT (UNLAWFUL DETAINER)BY HADI AMERI

 

 

·         The general demurrer is OVERRULED.  Defendant’s reliance on CCP §1161(2) is misplaced as the complaint does not allege an unlawful detainer based on a default in rent payments.  With respect to the Protecting Tenants at Foreclosure Act, the facts necessary to determine whether defendant is a bona fide tenant, entitled to 90 days’ notice to vacate, are not apparent from the face of the Complaint. Defendant shall file an Answer no later than April 27, 2015.

 

·         Prevailing 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 Joseph C. Scott, Department 25.

 

 

DEMURRER TO 1st Amended COMPLAINT (UNLAWFUL DETAINER) BY SAMUEL RANSANY

 

 

·         The general demurrer is overruled.  Defendant’s reliance on CCP §1161(2) is misplaced as the complaint does not allege an unlawful detainer based on a default in rent payments.  With respect to the Protecting Tenants at Foreclosure Act, the facts necessary to determine whether defendant is a bona fide tenant, entitled to 90 days’ notice to vacate, are not apparent from the face of the Complaint.  Defendant shall file an Answer no later than April 27, 2015.

 

·         Prevailing 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 Joseph C. Scott, Department 25.

 

 

_____________________________________________________________________


9:00

7

CLJ 210891       ROYAL ROBINSON, ET AL. VS. GARY WANG, ET AL.

 

 

ROYAL ROBINSON                        MARC D BENDER

GARY WANG                             STEPHEN D PAHL

 

 

MOTION TO COMPEL PLAINTIFF’S VERIFIED RESPONSES TO FORM INTERROGATORIES BY GARY WANG, ET AL.

 

 

  • Defendants’ Motion to Compel Plaintiffs to Provide Verification to the form and special interrogatories is  MOOT. Plaintiffs provided verifications on April 10, 2015. Defendants’ motion to compel plaintiffs to provide further responses to Requests for Production Nos. 1-7 is DENIED.  These requests seek documents regarding title to the property. The primary issue in a UD proceeding is the right to possession. Issues of title cannot be litigated in a UD action and are irrelevant. [Evans v.Superior Court (1977) 67 Cal App 3d 162, 170-172 ]. Defendant’s motion to compel plaintiffs to provide a further response to Special Interrogatory No. 5 is GRANTED. Plaintiff’s response provided only a vague reference to a gift. Plaintiffs shall provide a further response which describes every payment made to them by defendants, including the amount and the date of said payment. The further response shall be provided on or before April 24, 2015.

 

  • Defendants’ request for sanctions is GRANTED in the amount of $595.00. These sanctions shall be paid to Defendants no later than April 24, 2015.

 

  • 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 Joseph C. Scott, Department 25.

 

 

_____________________________________________________________________


9:00

8

CLJ 498865       FIA CARD SERVICES, N.A. VS. PARASKEVI DIMMITT

 

 

FIA CARD SERVICES, N.A.               ROBERT SCOTT KENNARD

PARASKEVI DIMMITT

 

 

MOTION TO SET ASIDE DEFAULT BY PARASKEVI DIMMITT

 

 

·         Defendant Paraskevi Dimmitt’s Motion to Vacate her default and the default judgment is DENIED without prejudice.  The Defendant has failed to file a proof of service showing at the motion has been served on plaintiff’s attorney in compliance with CCP §§1005, 1013.

 

·         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.

 

 

_____________________________________________________________________


9:00

9

CLJ 523152       PORTFOLIO RECOVERY ASSOCIATES, LLC. VS. AMY

                   D. FERNANDEZ

 

 

PORTFOLIO RECOVERY ASSOCIATES, LLC.   EMILY PIERCE

AMY D. FERNANDEZ                      PRO/PER

 

 

MOTION FOR JUDGMENT ON THE PLEADINGS BY PORTFOLIO RECOVERY ASSOCIATES, LLC.

 

 

·         Appear.

 

 

_____________________________________________________________________


9:00

10

CLJ 528106       PORTFOLIO RECOVERY ASSOCIATES VS. JAQUELINE MADRIAGA

 

 

PORTFOLIO RECOVERY ASSOCIATES         KEVIN E LAWLESS

JAQUELINE MADRIAGA                    PRO/PER

 

 

MOTION TERMINATING SANCTIONS, AND IN THE ALTERNATIVE TO FURTHER COMPEL BY PORTFOLIO RECOVERY ASSOCIATES

 

 

·         Appear.

 

 

_____________________________________________________________________


9:00

11

CLJ 532180       DAVID SHAW BASS VS. CITY OF EAST PALO ALTO

 

 

DAVID SHAW BASS                       GREGORY L. SPALLAS

CITY OF EAST PALO ALTO                JEFFREY M. VUCINICH

 

 

DEMURRER TO COMPLAINT BY CITY OF EAST PALO ALTO

 

 

 

  • The Demurrer as to the entire complaint is OVERRULED. Plaintiff adequately complied with the Government Tort Claims procedure.

 

  • 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 Joseph C. Scott, Department 25.

 

 

 

_____________________________________________________________________

 

 

 

 


POSTED:  3:00 PM

 

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