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

 

Monday, June 1, 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 440930       MIKE ROSEN, ET AL. VS. LEGACY QUEST, ET AL.

 

 

MIKE ROSEN                            PRO/PER

LEGACY QUEST                          BRADLEY KASS

 

 

MOTION TO STRIKE AND/OR TAX COSTS BY Ruo Hui Chen AND Nikii Menasco

 

 

  • The Motion to Strike/Tax Costs by Defendants/Sureties Ruo Hui Chen aka Fay Chen, James Jin Q. Li and Nikki Menasci is DENIED with the exception of the item on Line 1g [$180] which plaintiff acknowledges was listed in error. The Motion is DENIED as to all other costs.

 

  • Plaintiff’s verified memorandum of costs is prima facie evidence of the propriety of the costs and the burden is on the party seeking to strike/tax costs to show that they were not reasonable or necessary. Ladas v. California State Auto. Ass’n (1993) 19 Cal App 4th 761, 774-76. If the cost is expressly allowed by statute and appears proper on its face, the burden is on the objecting party to show them to be unnecessary or unreasonable. Nelson v. Anderson (1999) 72 Cal App 4th 111, 131. And to controvert the memo of costs, the burden is on the objecting party to present evidence showing the contrary. Whatley-Miller v. Cooper (2013) 212 Cal App 4th 1103, 1115.

 

  • The categories on the memo of costs [issuance of writ of execution, levying costs and attorney’s fees] appear to be proper charges and are allowed by statute, CCP §685.070. As the objecting party, Defendants have the burden of presenting evidence showing the contrary. Defendants have not done so.

 

  • 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.

 

 

 

JOINDER BY KEN MENASCO FOR DEFENDANTS/SURETIES NOTICE OF MOTION AND MOTION TO STRIKE AND OR TAX COSTS FILED/SUBMITTED BY PLAINTIFF STEPHANIE ROSEN

 

 

  • The Joinder to the Motion to Strike/Tax Costs by defendant Ken Menasco is GRANTED.

 

 

THIRD PARTY CLAIMANT'S NOTICE OF MOTION AND MOTION TO STRIKE AND/OR TAX COSTS FILED/SUBMITTED BY PLAINTIFF STEPHANIE ROSEN

 

 

  • Rosen's request for judicial notice is GRANTED.

 

  • Third Party Claimant Xiao Yan Chen’s Motion to Strike and/or Tax Costs is DENIED. See, Exch. Nat. Bank of Tulsa v. Ransom (1942) 52 Cal. App. 2d 544, Maguire v. Corbett (1953)119 Cal. App. 2d 244. CCP §1032(a) defines "defendant" as including "a person against whom a complaint is filed".  CCP §720.350 provides that the third-party claim constitutes the pleading of the third person. CCP §1032(a)(4) defines "prevailing party" to include: “a defendant in whose favor a dismissal is entered”.  Here Xiao Yan Chen withdrew (dismissed) her third party claim. 

 

  • 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 Lee, Department 17.

 

 

_____________________________________________________________________


9:00

2

CIV 500942       WEEKS STREET, LLC. VS. NEXGEN BUILDERS, INC., ET AL.

 

 

WEEKS STREET, LLC.                    CHARLES J. SMITH

NEXGEN BUILDERS, INC.                 GRANT H. BAKER

 

 

MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION OF ISSUES BY FIRST NATIONAL BANK OF NORTHERN CALIFORNIA

 

 

  • Per the court’s own motion, the hearing on First National Bank of Northern California’s motion for summary judgment/adjudication is continued to June 3, 2015 before Judge Joseph Scott in Department 25.

 

 

_____________________________________________________________________


9:00

3

CIV 521687       TINA MARIE HOLEMAN VS. ENA MARIA LAL

 

 

TINA MARIE HOLEMAN                    DAVID W. WESSEL

ENA MARIA LAL                         BRIAN J. MCSHANE

 

 

MOTION TO STRIKE PUNTITIVE DAMAGES CLAIM AND IRRELEVANT PORTIONS OF PLAINTIFFS SECOND AMENDED COMPLAINT BY UNITED PARCEL SERVICE, INC.

 

 

  • The Motion is DENIED as to Items 1, 2, and 3. Vehicle Code section 22500 is intended to protect not only against traffic congestion, but also damage or injury that could result when double parking obstructs the vision of motorists. (See, e. g., McKay v. Hedger (1934) 139 Cal. App. 266, 273 [“The enactment in question was undoubtedly passed for the benefit of all persons lawfully using public streets”].) Defendant cites language in McKay to argue that traffic congestion on the side of the double parked vehicle is the purpose of Section 22500. (Reply at 4:11 – 5:9 [“long line of impatient motorists . . . who cannot proceed”].) Notwithstanding that language, the pertinent facts in McKay were similar to the present case: a double parked vehicle interfered with an oncoming motorist’s ability to see what was behind the double parked vehicle. The Court concludes that for purposes of negligence per se, the goal of section 22500 is not limited to easing congestion.

 

  • UPS’s instructing its drivers to violate section 22500 is not sufficient, without more, to support a claim for punitive damages, since it merely amounts to an instruction to commit negligence per se. However, plaintiff alleges that UPS took that action “even though UPS . . . knew of the dangers of bodily injury and property damage that double parking posed to the users of California roadways. UPS willfully and wantonly failed to avoid the consequences of the double parking of UPS vehicles, and in fact encouraged its drivers in double parking . . . .” (2nd Am. Comp. at 10, ¶ EX-2 [last paragraph].)  These allegations, if proven, could support a finding that UPS exhibited “conscious disregard  of the rights or safety of others. (Civ. Code § 3294, subd. (a) & (c).)  This would be true even if the purpose of section 22500 was limited to traffic congestion, since the complaint alleges that UPS knew that double parking posed a danger to persons on the street.

 

  • The Motion is DENIED as to Item 4, “Exemplary Damages Attachment, Pages 10 —12 in its entirety.” A notice of motion to strike must identify the specific language or paragraphs sought to be stricken. (CRC Rule 3.1322(a).) Defendant’s Notice specifies “Exemplary Damages Attachment, Pages 10 —12 in its entirety.”  (Notice of Motion at 2:12.)  Pages 10-12 consist of more than mere recitations and interpretation of law. The motion is denied as procedurally deficient.

 

  • 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 527700       DAVID RUMMELL VS. CAMPUS SURGERY CENTER, LP.

 

 

DAVID RUMMELL                         ROSENDO PADILLA

CAMPUS SURGEY CENTER, LP.             NORMAN LA FORCE

 

 

MOTION FOR SUMMARY JUDGMENT AS TO COMPLAINT BY CAMPUS SURGEY CENTER, LP.

 

 

  • Defendant Campus Surgery Center’s motion for summary judgment is DENIED. Defendant has not met his initial burden as set forth under CCP § 437c(p)(2).  Defendant’s motion is based on the sole argument that the Statute of Limitations for professional negligence/medical malpractice is one year under CCP §340.5. However, Defendant has not established that the complaint contains a cause of action for professional negligence. The complaint sets forth a cause of action for general negligence based on defendant’s duty to provide plaintiff with crutches that were not broken. Nowhere in the complaint does the plaintiff assert that the defendant was professionally negligent. The test of whether a healthcare provider’s negligence constitutes professional negligence is whether the negligence occurred in rendering services for which the health care provider is licensed. Palmer v. Superior Court (2002) 103 Cal App 4th 953, 962.

 

  • Defendant has not established that the claim is based on defendant having rendered services for which the health care provider is licensed. Defendant has not established that the claim is subject to the statute of limitation for professional negligence [CCP §340.5].

 

  • Plaintiff’s Objections to Defendant’s material facts 3, 4, 5 are sustained and the Objections to material facts 7, 8 and 10 are overruled.

 

  • Defendant’s objections to Plaintiff’s evidence are sustained as to Objections 1, 3 and overruled as to 2 and 4.

 

  • 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 530203       XUE YAN LIANG VS. YAT SING RESTAURANT, ET AL.

 

 

XUE YAN LIANG                         PETER CHAO

YAT SING RESTAURANT                   PETER L. KUTRUBES

 

 

MOTION FOR ORDER PERMITTING DISCOVERY OF FINANCIAL INFORMATION BY XUE YAN LIANG

 

 

 

·         The Plaintiff’s Motion for Order Permitting Discovery of Defendants’ Financial Information is DENIED without prejudice.

 

·         Plaintiff has not demonstrated that it is very likely the Plaintiff will prevail on her claim for punitive damages or that there is a substantial probability that she will prevail on her claim for punitive damages. Plaintiff has not demonstrated that her cause of action for wrongful termination actually includes a termination, whether it was constructive or actual. Plaintiff has not demonstrated that her causes of action for assault or battery were the cause of harm to her and that Defendant will not prevail with an affirmative defense of self-defense.

 

  • 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 531332     JOHN THURRELL, ET AL. VS. WELLS FARGO BANK, N.A. ET AL.

 

 

JOHN THURRELL                         NELSON W. GOODELL

WELLS FARGO BANK, N.A.                JASON M. JULIAN

 

 

MOTION TO STRIKE PORTIONS OF THE FIRST AMENDED COMPLAINT BY WELLS FARGO BANK, N.A.,

 

 

  • Defendant’s Motion to Strike Paragraph 112 and Prayer Item No. 5 is DENIED.

 

  • The Motion to Strike Prayer No. 6 relating to attorney’s fees is GRANTED only as to the 3rd, 4th and 5th Causes of Action. However, this does not preclude attorney’s fees to be requested as an element of costs. (See Allstate Ins. Co. v. Loo (1996) 46 Cal. App. 4th 1794, 1797-1798)

 

 

DEMURRER TO FIRST Amended COMPLAINT BY WELLS FARGO BANK, N.A.

 

 

  • Defendants Demurrers as to the First, Second, Third, Fourth and Fifth Causes of Action are OVERRULED. Defendants shall file and serve their answer within 15 days after service of Notice of Entry of Order.

 

·         Defendant asserts that res judicata applies in this action and applies to related issues that could have been raised in the other proceeding. Res judicata does not apply because there was never a final determination on the merits of Plaintiff John Thurrell’s prior claim.  The Homeowners Bill of Rights was not in effect at the time of the prior lawsuit and Maria Gonzalez was not a party to the prior lawsuit. 

 

 

  • Defendant’s Demurrer to the First and Second Causes of Action are OVERRULED.  The primary thrust of Wells Fargo’s argument is that plaintiffs do not fall into the definition of “borrower” under sections 2923.6 and 2923.7 because they have filed several petitions in Bankruptcy Court. Section 2920.5(c)(2)(C) defines “borrower” as an individual who does not have a pending Bankruptcy or one in which relief from stay of foreclosure has been granted.

 

  • Wells Fargo challenges plaintiffs dismissing their Bankruptcy in Sept. 2014, filing their lawsuit, and then filing a petition in Bankruptcy in November 2014. The Code section definition does not specify exactly when the ‘borrower’ definition is supposed to be determined, or if it is to continue throughout the action. Here, notwithstanding Wells Fargo opposition, plaintiffs were borrowers when this lawsuit was filed.

 

  • If a subsequent Bankruptcy was going to deprive a ‘borrower’ from proceeding with his/her lawsuit, then that should have been clearly set forth in the statute.   It is not.

 

  • Defendant’s Demurrer to the Third Cause of Action (Fraud) is OVERRULED.  This Cause of Action alleges that Wells Fargo represented to plaintiffs that Wells Fargo did not have authority to consider plaintiffs for a loan modification; and, further represented to plaintiffs that their modification would not result in a positive NPV (Net Present Value) analysis, pursuant to HAMP guidelines. It is alleged that both of these representations were falsely made. Plaintiff has sufficiently plead this cause of action.

 

  • Defendant’s Demurrer to the Fourth Cause of Action (Negligence) is OVERRULED.  Defendant alleges that Plaintiff has filed to identify a duty owed to them by defendants.

 

  • There is authority for the proposition that a servicer is liable for miscalculating a borrower’s income and then denying their loan modification application on such basis. (Alvarez v. BAC Home Loans Servicing (2014) 228 Cal. App. 4th 941, 944).

 

  • Defendant’s Demurrer to the Fifth Cause of Action (Violation of Bus. & Prof. Code §17200 is OVERRULED.

 

 

  • Misrepresentations about a borrower’s right and ability to challenge bank calculations can constitute unfair competition (Rufini v. CitiMortgage, Inc. (2014) 227 Cal. App. 4th 299, 310)  Defendants argue that the prior causes of action are all defective, when in fact they are all adequately pled.

 

  • 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

7

CIV 532269       I. WILLIAM WISER VS. S&T PROPERTIES, ET AL.

 

 

I. WILLIAM WISER                      Matthew Louis Karpinski

S&T PROPERTIES

 

 

MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT BY FIRST AMERICAN TITLE, ET AL.

 

 

DEMURRER TO FIRST Amended COMPLAINT BY FIRST AMERICAN TITLE, ET AL.

 

 

·         This action has been stayed by the Bankruptcy Court.  On May 20, 2015, Plaintiff filed a Notice of Stay of Proceedings.

 

 

_____________________________________________________________________


9:00

8

CIV 533142       GREAT PLAINS CAPITAL CORPORATION VS. WINSTON M.

                   ACEVEDO, ET AL.

 

 

GREAT PLAINS CAPITAL CORPORATION      GEORGE GOST

WINSTON M. ACEVEDO                    PRO/PER

 

 

APPLICATION FOR RIGHT TO ATTACH ORDER, ORDER FOR ISSUANCE OF WRIT OF

ATTACHMENT BY GREAT PLAINS CAPITAL CORPORATION

 

 

·         Plaintiff Great Plains Capital Corporation’s unopposed Application for Writ of Attachment is GRANTED pursuant to CCP §483.010(a),(c). The attachment is granted in the amount of $48,295.58, including principal of $38,450.71, plus interest in the amount of $6,833.11, estimated costs of $1,000.00 and attorneys’ fees in the amount of $2,011.76. Plaintiff is required to post an undertaking in the amount of $10,000.00 pursuant to CCP §489.220.

  • 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

9

CLJ 505775       STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY VS.

                   CHRISTOPHER MITCHELL

 

 

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY  ANN E MCINTIRE

CHRISTOPHER MITCHELL                  PRO/PER

 

               

MOTION TO DEEM PLAINTIFF'S REQUESTS FOR ADMISSION, SET ONE, TO DEFENDANT, CHRISTOPHER D. MITCHELL, ADMITTED AND REQUEST FOR SANCTIONS IN THE AMOUNT OF $890.00 PURSUANT TO C.C.P. §2030.290 BY STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

 

 

  • The unopposed Motion for Order Deeming Facts Admitted by Plaintiff State Farm Mutual Auto. Ins. Co. is GRANTED pursuant to CCP § 2033.280. All of those matters set forth in Plaintiff’s Request for Admissions, Set One, dated June 29, 2012, are hereby deemed admitted.

 

  • Plaintiff’s request for sanctions is also granted pursuant to CCP §§ 2023.010(d) and 2033.280(c).  Defendant Christopher Mitchell shall pay Plaintiff a total of $490.00 in sanctions within 15 days of notice of entry of this 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.

 

 

_____________________________________________________________________

 

 

 

 

 


POSTED:  3:00 PM

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