June 28, 2016
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 donald j. ayoob

Department 27

 

400 County Center, Redwood City

Courtroom 7B

 

Monday, June 27, 2016

 

 

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

1

CIV 441471†††††† JOHNNY AMOS VS. DAVID A. HEATON, ET AL.

 

 

JOHNNY AMOS†††††††††††††††††††††††††† BARZIN BARRY SABAHAT

DAVID A. HEATON†††††††††††††††††††††† WILLIAM R. MORRIS

 

 

MOTION TO ENFORCE SETTLEMENT AGREEMENT BY DAVID A. HEATON

 

 

Defendant David Heatonís Motion to Enforce the Settlement Agreement pursuant to CCP ß664.6 is GRANTED. The requirements of CCP ß664.6 have been satisfied and the conditions precedent to the performance by Plaintiff Amos were satisfied when Plaintiff acquired a 30% interest in Runnymede Ventures, LLC. All of the conditions precedent to Plaintiffís performance under the agreement have been satisfied including: an LLC was formed, with plaintiff Amos acquiring a 30% interest in the LLC; and a purchase agreement has been entered into with the Runnymede LLC for the sale of the subject property. Defendant Heaton [as trustee of the Bona trust] explicitly waived the closing deadline on the sales agreement as did the buyer, Sorenson [on behalf of the Runnymede LLC]. See Galdjie v. Darwish (2013) 113 Cal App 4th 1331, 1341.

 

Plaintiff is ordered to execute those documents necessary to clear title to the property in order to complete the sale to the LLC.

 

Moving party is directed to prepare a written order consistent with the Courtís ruling for the Courtís 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 Donald J. Ayoob, Department 27.

 

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9:00

2

CIV 536047†††††† MT. DIABLO INVESTMENT GROUP LLC VS. SOUTH BAY REAL

††††††††††††† ††††ESTATE COMMERCE

 

MT. DIABLO INVESTMENT GROUP, LLC††††† MILLA L. LVOVICH

SOUTH BAY REAL ESTATE COMMERCE††††††† MARK A. RUSHIN

 

 

DEMURRER TO FIRST Amended COMPLAINT of MT. DIABLO INVESTMENT GROUP, LLC BY GEORGE CRESSON

 

DEMURRER TO FIRst Amended COMPLAINT of MT. DIABLO INVESTMENT GROUP, LLC BY SOUTH BAY REAL ESTATE COMMERCE GROUP LLP

 

Defendantsí demurrers to the First Amended Complaint are OVERRULED as MOOT. The operative complaint in this case is the Second Amended Complaint.

 

After the Parties met and conferred, as ordered by the Court, Plaintiff filed a Second Amended Complaint and a few days later the Court granted leave to so file. Notwithstanding Defendantsí argument that they were denied their due process right to a ruling on the demurrer to the superseded complaint, they retain their right to whatever process is due them in opposition to the operative complaint, i.e. they have suffered no prejudice.

 

Plaintiff is directed to prepare a written order consistent with the Courtís ruling for the Courtís 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 Donald J. Ayoob, Department 27.

_____________________________________________________________________


9:00

3

CIV 538638†††††† 910 LA DENDA, LLC VS. U.S. BANK, ET AL

 

 

910 LA SENDA, LLC††††††††††††††††††††††† SYDNEY J. HALL

U.S. BANK N.A.

 

 

HEARING TO TRAIL MOTION TO CONSOLIDATE ACTIONS FILED IN UNLAWFUL

DETAINER CASE CLJ212597

 

 

See tentative ruling in CLJ 212597.

 

_____________________________________________________________________


9:00

4

CLJ 212597†††††† U.S. BANK N.A. VS. ROBERT FRANCIS REYES, ET AL.

 

 

U.S. BANK N.A.††††††††††††††††††††††† RANDALL D. NAIMAN

ROBERT FRANCIS REYES††††††††††††††††† DAVID M. STERNBERG

 

 

MOTION TO CONSOLIDATE CLJ212597 WITH CIV538638 BY ROBERT FRANCIS REYES, ET AL.

 

The motion to consolidate is DENIED.All claims in action CIV 538638 relating to Plaintiff U.S. Bankís title have been removed to Federal Bankruptcy Court. No claims remain in that action that can be consolidated with CLJ 212597, the unlawful detainer action.

 

The motion to stay proceedings is GRANTED, conditioned on payment of rent.

 

ďWhen an unlawful detainer proceeding and an unlimited action concerning title to the property are simultaneously pending, the trial court in which the unlimited action is pending may stay the unlawful detainer action until the issue of title is resolved in the unlimited action, or it may consolidate the actions.Ē (Martin-Bragg v. Moore (2013)219 Cal. App. 4th 367, 385 [error for court to deny consolidation].) In the unlimited action, 910 La Senda alleges that the foreclosure sale was improper and void. If true, then Plaintiff US Bank had no standing to foreclose, and it has no standing to bring the unlawful detainer action. This is an issue of title that cannot be tried on an expedited basis in the unlawful detainer action. This action is stayed, on conditions set forth below, until the issue of title is resolved in the bankruptcy court.

 

The Complaint alleges daily rent of ďat leastĒ $50 per day. (Complaint ∂ 10.) Further, the complaint prays for damages of $283.33 per day ($8500 per month). (Complaint, prayer ∂ 2.) Since the motion is brought by Defendant, it is Defendantís burden to offer evidence establishing a fair rental value. No evidence is before the court to indicate a fair market rent for the property. However, given the propertyís location, the Court concludes that $50 per day, offered by Defendant, is unreasonably low. The prayer for $283.33 per day is within the realm of reason, albeit perhaps on the high side.

 

The motion to stay is granted, conditioned on Defendantís depositing $16,500.00 with the Court, no later than June 30, 2016, representing daily rent of $250.00 from April 25, 2016, through June 30, 2016. Thereafter, Defendant shall deposit with the Court monthly rent of $7500, due on the first of each month. Defendant shall be in default if rent is not deposited by the 5th of each month. †††††

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for U. S. Bank is directed to prepare a written order consistent with the Courtís ruling for the Courtís 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.

 

DEMURRER TO COMPLAINT (UNLAWFUL DETAINER) of U.S. BANK N.A. BY ROBERT FRANCIS REYES

 

The demurrer of Robert Reyes is OVERRULED. Nothing on the face of the pleadings demonstrates that the sale of property to Plaintiff was void. The Court grants Defendantís Request for Judicial Notice of The Deed to 910 La Senda LLC in June 2011, the bankruptcy petition of 910 La Senda LLC filed February 12, 2016, and the Court docket in Case 16-30163. None of those documents shows that the subject property was property of 910 La Senda LLC at the time of the bankruptcy filing. Therefore, nothing shows that the bankruptcy stay precluded the foreclosure sale.

 

Regardless, the Court also takes judicial notice of the Bankruptcy Court Order in the case of In re Victoria C. Bell, which grants relief from stay to proceed with foreclosure on the property. (Opposition Exhibit 8.) The order provides that if the Order is recorded, the Order ďshall be binding and effective . . . in any other bankruptcy case purporting to affect the Property filed not later than two years after the date of entry of this Order . . . ď (Exhibit 8 at 2:14-18.)Plaintiff recorded the Order on May 7, 2015. Therefore, the Order is in force as against the bankruptcy of 910 La Senda LLC, which was initiated February 2016.

 

The Court grants Defendantís concurrent motion to stay, conditioned on payment of rent. (See ruling, above.) If Defendant fails to deposit the funds as required by the order on that motion, then Defendant Robert Reyes shall and serve file an Answer to the verified complaint no later than July 6, 2016.Plaintiff may not request entry of default against Defendant Reyes unless he fails to file an Answer by 2:00 p. m., July 6, 2016.

†††††††††††††††††††††††††††††††††††††††††††††††††††

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for U. S. Bank is directed to prepare a written order consistent with the Courtís ruling for the Courtís 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.

_____________________________________________________________________


9:00

5

CLJ 479948†††††† PURA KOUMARIAN VS. DISCOVER FINANCIAL ET AL.

 

 

PURA T KOUMARIAN†††††††††††††††††††††††† IRVING L. BERG

DISCOVER FINANCIAL SERVICES††††††††††††† HARVEY M. MOORE

 

 

MOTION FOR ORDER OF MANDATORY DISMISSAL OF ACTION FOR FAILURE TO BRING ACTION TO TRIAL, ETC. BY DISCOVER FINANCIAL SERVICES

 

Defendant Discover Financial Services dba Discover Card Motion to Dismiss is GRANTED pursuant to CCP ß583.360(a) based on Plaintiffís failure to bring this matter to trial within the required 5-year period set forth in CCP ß583.310.

 

Moving party is directed to prepare a written order consistent with the Courtís ruling for the Courtís 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 Donald J. Ayoob, Department 27.

____________________________________________________________________________


 


 

In the Superior Court of the State of California

In and for the County of San Mateo

 

Special Set Calendar

Judge: Honorable susan irene etezadi

Department 18

 

400 County Center, Redwood City

Courtroom 2M

 

Monday, June 27, 2016

 

IF YOU INTEND TO APPEAR ON ANY CASE ON THIS CALENDAR YOU MUST DO THE FOLLOWING:

 

3. YOU MUST CALL (650) 261-5118 BEFORE 4:00 P.M. TO INFORM THE COURT OF YOUR INTENT TO APPEAR.

4. 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

1

CIV 527902††††† JOHN E. FERRY VS. LAURA J. WONS

 

 

JOHN E. FERRY†††††††††††††††††††††††† PRO/PER

LAURA J. WONS†††††††††††††††††††††††† PRO/PER

 

 

MOTION TO SET ASIDE THE INVOLUNTARY DISMISSAL OBTAINED BY DEFENDANT LAURA J. WONS AND FOR LEAVE TO FILE SECOND AMENDED COMPLAINT BY JOHN E. FERRY

 

Plaintiff JOHN FERRYís Motion to Set Aside Involuntary Dismissal is GRANTED pursuant to Code Civ. Proc. ß 473(b).A careful review of the Courtís records in this matter demonstrates that the dismissal and resulting judgment thereon, was obtained against Plaintiff by surprise, as Plaintiff was not given adequate notice or an opportunity to be heard.Accordingly, the dismissal and resulting judgment are hereby VACATED.

 

Plaintiffís concurrent Motion for Leave to File Second Amended Complaint is GRANTED IN PART, as follows:

 

  • Leave to amend is limited to the First Cause of Action to Set Aside Judgment of Dismissal in CIV 490434 and Second Cause of Action to Correct Records of the Court in CIV 490434 only.

 

  • The Courtís Order of December 19, 2014 bifurcating Plaintiffís first two causes of action and staying all remaining claims remains in effect.As ordered previously by the Court, Plaintiff is required to prevail on his causes of action to set aside the underlying judgment and correct the records of the Court before the stay will be lifted and he is permitted to re-litigate his substantive claims against Defendant.

 

Plaintiffís Request for Judicial Notice is GRANTED as to Exhibits 2, 3, 7, 10, 11, 14, and 15.The request is GRANTED as to Exhibits 4, 5, 6, 8, 9, 12, 13, 16, and 17 insofar as these documents were filed with the Court, but not as to the truth of any matters stated therein.The request is DENIED as to Exhibits 1 and 18.†††

 

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, moving party is directed to prepare a written order consistent with the Courtís ruling for the Courtís 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 Susan Irene Etezadi, Department 18, for the Courtís signature.

 

_____________________________________________________________________






9:00

2

CIV 537502††††† KENNETH J. RICCARDI VS. MICHAEL J. SCARDINO

 

 

KENNETH J. RICCARDI ††††††††††††††††† JEFFREY F. RYAN

MICHAEL J. SCARDINO†††††††††††††††††† MARC SEIDENFELD

 

 

MOTION FOR RECONSIDERATION OF ORDER GRANTING DEFENDANTíS MOTION TO CONSOLIDATE BY KENNETH J. RICCARDI

 

This matter is continued on the Courtís own motion to Monday, July 25, 2016, at 9:00 a.m. in Department 18, Judge Susan Irene Etezadi.

 

_____________________________________________________________________

 

 

 

 


POSTED:3:00 PM

 

 

 

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