July 24, 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

 

JULY 21, 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 493125       OTTO WILLIAM GRAF, ET AL. VS. CHASE, ET AL.

 

 

OTTO WILLIAM GRAF                     KURT E. WILSON

CHASE

 

 

MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION AS TO SECOND Amended COMPLAINT of FIRST AMERICAN TITLE INSRANCE CO. (“FIRST AMERICAN”) FILED BY CROSS-DEFENDANT FEDERAL HOME LOAN MORTGAGE CORPORATION (“FREDDIE MAC”)

 

 

·         Defendant Federal Home Loan Mortgage Corporations’ Motion for Summary Judgment is DENIED.

 

·         Defendant’s Motion for Summary Adjudication is GRANTED as to the 1st Cause of Action (money had and received).  To prevail on the common count of money had and received, First American must prove that 1) a defendant has received money which belongs to the plaintiff; 2) such money was not used for the benefit of the plaintiff; and 3) the money was not returned to the plaintiff.  Mains v. City Title Ins. Co. (1950) 34 Cal.2d 580, 586.

 

·         It is undisputed that CHASE requested and received a payoff demand in the amount of $151,174.85 and that Chase directed its escrow agent Alliance to pay $151,174.85 to FREDDIE MAC to pay off the February 2007 loan held by Freddie Mac.  By paying off the first lien held by FREDDIE MAC, (who subsequently reconveyed the deed of trust to the property after paying off the full amount of its loan), CHASE secured a first lien position on the property.  In August of 2007, Chase was willing to loan money to Graf (the owner of the property) on the condition that Chase be secured by a first lien on the property.  Therefore, it is undisputed that the money received by Freddie Mac from Chase was not “intended to be used for the benefit of” Chase.

 

·         Furthermore, neither FATIC or Chase (whose interests it claims to hold), on the one hand, and FREDDIE MAC, on the other hand, had a contractual or relationship with each other.  Both parties agree that they were each defrauded by third parties in separate loan transactions that were unrelated and occurred at different times. First American has not cited to any case that provides that a void agreement between two parties gives rise to a cause of action against a non-party to the void agreement.

 

·         FATIC’s reliance on Stratton v. Hanning (1956) 139 Cal App.2d 723 is misplaced.  In Stratton, the void agreement was between the payor and the payee.  The Court held that money paid “under a void agreement” supports a claim for money had and received.  Here, the allegedly void February 2007 agreement was between Freddie Mac and Otto Graf (or his fraudulent employees).  Chase’s payoff to Freddie Mac was not “under a void agreement,” because the February 2007 loan agreement called only for a loan of money to Graf and the repayment of money by Graf.  In contrast, Chase paid off the loan because Chase desired to be in the first position as a lienholder as a condition of the August 2007 loan.  Freddie Mac was not a party to the August 2007 loan.

 

·         The Motion for Summary Adjudication as to the 2nd Cause of Action (implied contract) is denied.  The moving papers assert two arguments: (1) that no cause of action regarding overpayment exists under Civil Code § 2924 and (2) Chase has no evidence of any implied agreement. These arguments attack any claim of an implied-in-fact agreement.  The motion fails, however, to demonstrate that Chase cannot prevail on a contract implied-in-law.

 

·         Motions for summary adjudication are framed by the pleadings.  The 2nd Cause of Action alleges that Chase paid off the February 2007 loan, which was “void and unenforceable.”  It includes the allegation that Freddie Mac “warranted” that the February 2007 loan was valid and enforceable (SACC ¶ 13), that Freddie Mac knew that if Chase was aware that the loan was invalid or unenforceable, Chase would not have paid off the loan (Id.), and that Freddie Mac would be “unjustly enriched” if it were allowed to keep the proceeds. (Id. ¶ 14.)

 

·         “An implied in law agreement is not based on the apparent intention of the parties, but is an obligation created by the law for reasons of justice.  The right to recovery on an implied-in-law contract is based on unjust enrichment.”  (Lundeen Coatings Corp. v. Department of Water & Power (1991) 232 Cal.App.3d 816, 826-27.)  The remedy “is an obligation created by the law without regard to the intention of the parties, and is designed to restore the aggrieved party to his former position by return of the thing or its equivalent in money. . . .”  (McBride v. Boughton (2004) 123 Cal.App.4th 379, 388 n.6.)  The allegations in paragraphs 13, 14, 16 and 17 describe a claim for quasi-contract or an implied-in-law contract.  The moving papers do not address this legal theory.

 

·         Freddie Mac’s Reply Brief argues that Chase cannot prevail on an implied-in-law contract.  Such arguments and evidence, however, properly belong in the moving papers and cannot be raised for the first time in a Reply.  By making an initial argument in reply, the moving party denies the opposing party of notice and opportunity to address the new ground.  (See Code of Civ. Proc. § 437c, subd. (a) [summary judgment/adjudication requires 75 days’ notice of issues to be addressed].)   Freddie Mac contends that it is Chase who raises the “implied-in-law” theory for the first time in its Opposition to the motion.  This is incorrect, as paragraphs 13, 14, 16 and 17 of the Cross-Complaint expressly allege a claim for implied-in-law contract.

 

·         Cross-Complainant FATIC dismissed the 3rd, 4th, 5th and 6th Causes of Action on July 7, 2014.  The Motion for Summary Judgment concerning these causes of action is moot.

 

 

·         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.

 

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9:00

2

CIV 521299       TONY CHEN, ET AL. VS. STANDARD FIBER, LLC

 

 

TONY CHEN                             JONATHAN B. GASKIN

STANDARD FIBER, LLC                   MICHAEL J. QUINN

 

 

DEMURRER TO CROSS-COMPLAINT of STANDARD FIBER, LLC BY TONY CHEN AND LEON LIANG

 

 

·         Plaintiffs/Cross-Complainants’ Demurrer to the Cross-Complaint is OVERRULED.

 

·         The elements of fraud are: (1) a misrepresentation (false representation, concealment or nondisclosure); (2) knowledge of falsity (or scienter); (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage. Robinson Helicopter Co., Inc. v. Dana Corporation (2004) 34 Cal.4th 979, 990.  Justifiable reliance exists when there is actual reliance on defendant’s statements, and the circumstances were such as to make it reasonable for plaintiff to accept the defendant's statements without an independent inquiry or investigation.  Kahn v. Lischner (1954) 128 Cal.App.2d 480, 489. The traditional rule is that fraud actions are subject to a stricter pleading standard because they involve a serious attack on defendant's character. Fairness requires that allegations of fraud be plead “with particularity” so that the court can weed out non-meritorious actions before defendant is required to answer.  Small v. Fritz Cos., Inc. (2003) 30 Cal.4th 167, 183.

 

·         The Cross-Complaint alleges ”Standard Fiber reasonably relied on [Cross Defendants’] promises to repay the loans and that their units would secure those promises, given that [Cross Defendants] knowingly and willingly entered into the Agreements, which clearly contained the promise to repay the loans and pledge the units as security for the loans as to which Standard Fiber had the right to foreclose if [Cross-Defendants] failed to repay the loans.”  Cross-Complaint ¶ 23.  This language satisfies the requirement of justifiable reliance.

 

·         Civil Code § 1668 provides that “All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law” (emphasis added).  A cause of action for negligent misrepresentation is included within the meaning of the word “fraud” in section 1668. Continental Airlines, Inc. v. McDonnell Douglas Corp. (1989) 216 Cal.App.3d 388, 404 (later overruled on separate grounds).  “Fraud in this state includes not only intentional misrepresentation, but may also consist of a negligent misrepresentation.”  Balfour, Guthrie & Co. v. Hansen (1964) 227 Cal.App.2d 173, 190. Civil Code § 1542 states “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”

 

·         Cross-Complainant’s causes of action are for fraud and for negligent misrepresentation.  Under Civil Code § 1668, a contractual provision whose object is to directly or indirectly exempt a party from responsibility for fraud or negligent misrepresentation is against public policy and is void.  Therefore, Cross-Complainants have not waived their right to judicial relief under the loan agreement.

 

·         Under Code of Civil Procedure § 338(d), an action for relief on the ground of fraud has a statute of limitations of three years. The cause of action in that case is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake. Id. There is disagreement in the California Appellate Courts over whether the statute of limitations for negligent misrepresentation is three years (because it acts like fraud) or two years (because it acts like negligence).  See Ventura County Nat. Bank v. Macker (1996) 49 Cal.App.4th 1528, 1530-31 (statute of limitations is two years), E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1316 (citing Ventura County); but see Broberg v. Guardian Life Insurance Co. of America (2009) 171 Cal.App.4th 912, 920 (statute of limitations is three years, citing to §338(d) in support of this assertion), Merchants Fire Assurance Corp. of New York v. Retail Credit Co. (1962) 206 Cal.App.2d 55, 61-62 (claim for negligent misrepresentation had a three-year statute of limitations). The applicable statute of limitations depends on “the nature of the cause of action, i.e., the ‘gravamen’ of the cause of action.”  Hensler v. City of Glendale (1994) 8 Cal.4th 1, 22.  A promise made without any intention of performing it qualifies as actual fraud and as deceit. Civil Code §§ 1572, 1710.

 

·         "A cause of action for fraud or mistake accrues, and the limitations period commences to run, when the aggrieved party could have discovered the fraud or mistake through the exercise of reasonable diligence."  Sun ‘n Sand, Inc. v. United California Bank (1978) 21 Cal.3d 671, 701.  “Something more than nonperformance is required to prove the defendant's intent not to perform his promise.  Fraudulent intent must often be established by circumstantial evidence…for example…circumstances as defendant's insolvency, his hasty repudiation of the promise, his failure even to attempt performance, or his continued assurances after it was clear he would not perform.” Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 30.  The statute of limitations “is a bar to the defendant's affirmative claim only if the period has already run when the complaint is filed.  The filing of the complaint suspends the statute during the pendency of the action, and the defendant may set up his claim by appropriate pleading at any time.” Luna Records Corp., Inc. v. Alvarado (1991) 232 Cal.App.3d 1023, 1026.

 

·         This Court finds the statute of limitations for negligent misrepresentation to be three years, as the gravamen of this cause of action lies more in fraud than in negligence. The primary allegation here is that Cross-Defendants signed a contract promising payment on a loan, and that they had no intention of honoring that promise; however, based solely on the Cross-Complaint, it is not clearly alleged whether Cross-Defendants’ lack of payment was because of misunderstanding the agreement, or whether it was because of real intent to deceive Standard into giving them a loan. However, the fact that the first cause of action is for fraud implies the latter as their primary argument in their Cross-Complaint, or that they are at least implying intentional misrepresentation of some sort. Considering this is a demurrer, all reasonable inferences should be taken in light of Standard, and there is a reasonable inference that Standard is alleging actively fraudulent activity.

 

·         Next is where the point of tolling began for the purposes of the Cross-Complaint. Cross-Defendants’ reference to People ex rel. Strathmann for the proposition that the tolling should only be from the point of the amended complaint (vs. the original complaint) is unavailing. The relevant language in that case refers only to the uncontroversial opinion that in the context of demurrers, the original complaint becomes moot and effectively null and void once it has been amended. To extrapolate from that language a wholesale idea that the original complaint serves no function in any form, including backdating the start of a statute of limitations is too much. The tolling for the Cross-Complaint is deemed to have begun at the filing of the original complaint. Cross-Defendants can cite to no other authority supporting their stance, and the plain language of the precedent finds in favor of tolling beginning with the initial complaint; the most logical interpretation of the phrase “the filing of the complaint suspends the statute during the pendency of the action” implies that it would start with the filing of the original complaint, and no action on the part of the fillers of the original complaint could alter this in any way, whether they filed an amended complaint or not. As the original complaint was first filed on April 24, 2013, the tolling should begin on that date, and the statute of limitations runs up to that date. With a three-year statute of limitations on Standard’s claims, the claims must have accrued by some date later than April 24, 2010 for the claims not to be time barred. Because the date of repayment on the loan agreement was not until September 6, 2010, the claims could not have accrued before then, as that was the first time they would have been potentially alerted to Cross-Defendants’ intention to not fulfill their promise of re-paying the loan. Standard’s Cross-Complaint should not be time barred.

 

·         Because none of Cross-Defendants’ grounds for demurrer are persuasive, the Demurrer is overruled.

 

·         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.

 

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9:00

3

CIV 525175       GRACE B. PANGILINAN VS. WILBERT ALVAREZ, ET AL.

 

 

GRACE B. PANGILINAN                   ANANT N. PRADHAN

WILBERT ALVAREZ                       CHARNEL JAMES

 

 

MOTION FOR SANCTIONS AND TO COMPEL FURTHER DISCOVERY BY GRACE B. PANGILINAN

 

 

·         Plaintiff's Motion for Sanctions and to Compel Further Discovery is denied without prejudice on procedural grounds.  Plaintiff failed to file a separate statement as required by CRC 3.1345(a)(2), (7).  (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893.)

 

·         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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9:00

4

CIV 526696       LINDA SABEH, ET AL. VS. ERIC WEINTZ, M.D., ET AL.

 

 

LINDA SABEH                           STEVEN A. FABBRO

ERIC WEINTZ, M.D.                     JENNIFER A. WAGSTER

 

 

DEMURRER TO THE 2ND AND 3RD CAUSES OF ACTION OF PLAINTIFFS’ FIRst Amended COMPLAINT BY DIGNITY HEALTH

 

 

·         Defendant DIGNITY HEALTH dba SEQUOIA HOSPITAL’s Demurrer to First Amended Complaint is OVERRULED as to Plaintiffs’ 2nd Cause of Action for elder abuse and 3rd Cause of Action for negligent infliction of emotional distress.  Both causes of action are sufficiently stated.

 

·         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

5

CIV 526697       MORRIS R. MAXWELL, ET AL. VS. DEUTSCHE BANK NATIONAL

                   TRUST COMPANY, ET AL.

 

 

MORRIS R. MAXWELL                     JASON W. ESTAVILLO

DEUTSCHE BANK NATIONAL TRUST CO.      THOR D. MCLAUGHLIN

 

 

MOTION TO BE RELIEVED AS COUNSEL FOR MORRIS R. MAXWELL AND SHAWN R. MAXWELL BY JASON W. ESTAVILLO

 

 

·         Plaintiffs Morris R. Maxwell, Shawn R. Maxwell and their attorney Jason W. Estavillo are ordered to appear on July 21, 2014 at 9:00 a.m. in Department 17 to address attorney Estavillo’s Motion to be Relieved as Counsel.  Plaintiffs’ counsel asserts that the specific facts which give rise to the motion are confidential.  The Court will address those alleged facts in an in camera hearing outside the presence of all other parties. 

 

_____________________________________________________________________

9:00

6

CIV 527250       NADIA HALL-CHOPOFF, ET AL. VS. NINA DE TOTH, ET AL.

 

 

NADIA HALL-CHOPOFF                    MARC D. BENDER

NINA DE TOTH                          DAVID J. PIRRONE

 

 

MOTION FOR TRIAL SETTING PREFERENCE BY NADIA HALL-CHOPOFF AND TINA FARRELL

 

 

·         This matter is moot.  Notice of Settlement was filed by Plaintiffs on July 11, 2014. 

 

_____________________________________________________________________

9:00

7

CIV 528037       KATHY MACDONALD VS. KATHLEEN LUZZI, ET AL.

 

 

KATHY MACDONALD                       SARAH A. BROOKS

KATHLEEN LUZZI                        PRO/PER

 

 

MOTION TO STRIKE PORTIONS OF DEFENDANT KATHLEEN LUZZI'S ANSWER BY KATHY MACDONALD

 

 

·         Plaintiff Kathy McDonald‘s Request for Judicial Notice is GRANTED pursuant to Evidence Code § 452(c) and 453.

 

·         Plaintiff Kathy McDonald’s unopposed Motion to Strike Portions of the Answer is GRANTED pursuant to CCP § 436(b) and Thomas G. Ferruzzo, Inc. v. Superior Court (1980) 104 Cal.App.3d 501.  A corporation cannot act in propria persona and represent itself in a court proceeding.  A corporate defendant must be represented by an attorney.  The Answer filed on behalf of the corporate defendant on May 22, 2014 is stricken and the default of defendant Kathy’s Kreative Kakes, LLC is entered.  The Court is also striking the Answer as to the corporate defendant because it is a suspended corporation and suspended corporations may not defend an action. Grell v. Laci Le Beau Corp. (1999) 73 Cal.App.4th 1300, 1306. Additionally, Defendant Kathleen Luzzi only paid one filing fee instead of one for each defendant as required under Government Code § 70612.

 

·         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

8

CIV 528508       LOURDES ALMEIDA ACASIO VS. COUNTY OF SAN MATEO, ET

                   AL.

 

 

LOURDES ALMEIDA ACASIO                PRO/PER

COUNTY OF SAN MATEO                   DAVID A. LEVY

 

 

MOTION TO STRIKE PRAYERS FOR PUNITIVE DAMAGES FROM THE COMPLAINT BY SAN MATEO HEALTHCARE AND WELLNESS CENTRE, LP DBA BURLINGAME LONG TERM CARE FACILITY

 

 

·         Defendant San Mateo Healthcare & Wellness Centre, LP dba Burlingame Long Term Care Facility’s Motion to Strike is GRANTED with leave to amend.  Plaintiff’s damage claims fail on the grounds that they exceed the amount of non-economic damages one may recover from a health care provider.  Civil Code § 3333.2, CCP § 377.34 and Yates v.Pollock (1987) 194 Cal.App.3d 195,198-99.  The claim for punitive damages fails as Plaintiff has not sought leave to amend under CCP § 425.13 which is required before demanding punitive damages in an action against a healthcare provider.  Further, Plaintiff has not alleged specific facts to demonstrate malice, fraud or oppression as required under Civil Code § 3294.

 

·         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.

 

 

DEMURRER TO COMPLAINT of ACASIO BY SAN MATEO HEALTHCARE AND WELLNESS CENTRE, LP DBA BURLINGAME LONG TERM CARE FACILITY

 

 

·         Defendant San Mateo Healthcare & Wellness Centre, LP dba Burlingame Long Term Care Facility’s Demurrer to Plaintiff’s Complaint is SUSTAINED with leave to amend.  Plaintiff has failed to sufficiently allege standing as CCP § 377.32 requires any person seeking to commence an action as a successor in interest to execute and file an affidavit or declaration under penalty of perjury establishing that they are the successor in interest.  It must include a certified copy of the decedent’s death certificate.  Plaintiff has failed to file the required CCP § 377.32 declaration with her form complaint. As to each cause of action, they simply do not contain sufficient facts and/or are unintelligible and/or are not included as part of the form complaint [premises liability, civil rights, wrongful death].

·         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

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CIV 528536       STANISLAV SHPAK VS. ANNETTE PERASSO, ET AL.

 

 

STANISLAV SHPAK                       ARNOLD LAUB

ANNETTE PERASSO                       WILLIAM E. JEMMOTT

 

 

MOTION TO BE RELIEVED AS COUNSEL FOR STANISLAV SHPAK BY JOSEPH LEE

 

 

·         The motion by Plaintiff’s counsel to be relieved as counsel for Plaintiff is GRANTED. Plaintiff’s counsel has established by a preponderance of the evidence there are irreconcilable differences between Plaintiff and Plaintiff’s counsel and that the motion to withdraw should be granted.

 

·         Defendant Felix Yagudaev’s Request for Judicial Notice is DENIED. Defendant’s counsel has failed to identify any facts, issues or pleadings in connection with the Request for Judicial Notice, in violation of CRC 3.1306 (c). 

 

·         In his Opposition, defendant Felilx Yagudaev asserts that he will be prejudiced by the granting of this motion because another related matter has been set for trial on September 15, 2014 and he has moved to consolidate both of these cases.  However, no trial date has been set in this matter and as of this time, this case has not been ordered consolidated with any other case. 

 

·         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

10

CLJ 209643       ALBEE FAMILY TRUST DATED MAY 4, 1992, ET AL. vs.

                   CECILIA ARIAS, et al.

 

 

ALBEE FAMILY TRUST                    DANIEL BORNSTEIN

CECILIA ARIAS                         DAVID CARDUCCI

 

 

MOTION TO VACATE AND SET ASIDE ENTRY OF DEFAULT JUDGMENT BY CECILIA ARIAS

 

 

·         Defendant Cecilia Arias’ Motion to Set Aside Default and Default Judgment is GRANTED pursuant to CCP § 473(b).  Defendant has demonstrated sufficient excusable neglect so as to warrant setting aside her default and the default judgment under CCP § 473(b). Defendant shall file her Answer on or before 2:00 p.m. on August 22, 2014.

 

·         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

11

CLJ 521815       MSW CAPITAL, LLC VS. ERNESTO S. FLORESCA

 

 

MSW CAPITAL, LLC                      FLINT C. ZIDE

ERNESTO S. FLORESCA                   PRO/PER

 

 

MOTION TO DEEM REQUESTS FOR ADMISSIONS ADMITTED AND FOR MONETARY SANCTIONS BY MSW CAPITAL, LLC

 

 

·         Plaintiff’s Motion to Deem Requests for Admissions Admitted is DENIED.  It appears that Plaintiff used the wrong address to serve its Requests for Admissions on Defendant and Defendant has declared that he never received them.  Defendant also submitted evidence that at least on one prior occasion Plaintiff used an incorrect address for Defendant.  Defendant has submitted unverified responses to the Requests for Admission by using the exhibit to the moving papers herein.

 

·         Defendant is ordered to serve Plaintiff with a verification for the responses he provided to the Requests for Admissions 10 days after service of Notice of Entry of Order.

 

·         Plaintiff’s request for monetary sanctions is DENIED.

 

·         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:  3:27 PM

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