October 1, 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

 

SEPTEMBER 29, 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 519064       JACKIEJO LOPEZ, ET AL. VS. SOUTH SAN FRANCISCO POLICE

                   DEPARTMENT, ET AL.

 

 

JACKIEJO LOPEZ                        GREGORY S. WALSTON

SOUTH SAN FRANCISCO POLICE DEPARTMENT

 

 

MOTION TO COMPEL PLAINTIFFS JACKIEJO LOPEZ AND EDWARD MILLER'S DEPOSITIONS BY CITY OF SOUTH SAN FRANCISCO, MARTY VAN DUYN, JASON ROSENBERG, NORMAN FRAGOSO, SUSAN KENNEDY, KEVIN MULLIN, OFFICER MAZI SADIKI, SERGEANT DANIEL GIL, OFFICER JASON PFARR, OFFICER JOSHUA CABILLO, JONI LEE AND CHIEF MICHAEL MASSONI

 

 

·         Defendants’ Request for Judicial Notice is GRANTED pursuant to Cal. Evid. Code § 452(d).

 

·         Defendants’ unopposed Motion to Compel Plaintiffs Jackiejo Lopez and Edward Miller’s Depositions is GRANTED pursuant to CCP § 2025.450.  Plaintiffs did not appear at their scheduled deposition nor did they object to the deposition. 

 

·         Defendants’ Request for Sanctions is GRANTED.  Monetary sanctions in the amount of $525 will be imposed on Plaintiffs. 

 

·         Moving parties are 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 519709       IRMA MEDRANO VS. WESTERN INVENTION SUBMISSION

                   CORPORATION, ET AL.

 

 

IRMA MEDRANO                          PAUL G. MINOLETTI

WESTERN INVENTION SUBMISSION CORP.    RANDOLPH S. HICKS

 

 

MOTION TO BE RELIEVED AS COUNSEL FOR IRMA MEDRANO BY PAUL G. MINOLETTI

 

 

·         Plaintiff's attorney's Motion to Be Relieved as Counsel is denied without prejudice due to insufficient notice.  Pursuant to CRC §  3.1362 (d), a notice of motion and motion, declaration and proposed order are to be served on the client and other parties.  There is no indication that a proposed order was served.  Furthermore, CRC § 3.1362(d) states that notice "may be by personal service or mail".  The Proof of Service indicates the service was made by facsimile and electronic mail.  Additionally, the Proof of Service did not provide the fax numbers or e-mail addresses to which service was made.

 

·         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 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 521054       ANGELIQUE M. AYLSWORTH VS. WELLS FARGO BANK, N.A., ET

                   AL.

 

 

ANGELIQUE M. ALYSWORTH                SEPTEMBER J. KATJE

WELLS FARGO BANK, N.A.                EDWARD R. BUELL

 

 

MOTION TO STRIKE PORTIONS OF THE SECOND AMENDED COMPLAINT BY WELLS FARGO BANK, N.A., CITIBANK, N.A. AND PRIVATE MORTGAGE ADVISORS, LLC

 

 

·         Defendants’ Motion to Strike is DENIED.  A declaratory relief cause of action requires a present controversy/dispute between the parties.  The Court is aware of the Gomes (Gomes v. Countrywide Home Loans (2011) 192 Cal.App.4th 1149) type of cases and that the authority of those involved in the foreclosure is normally not allowed.  However, effective Jan. 1, 2013, Civil Code § 2924.17 became effective which could impact the robo-signor issues. (See California Mortgages, Deeds of Trusts, and Foreclosure Litigation, CEB, section 2.50A, pg. 2-72, section 2.34, pg. 2-41 and section 2.25, pg. 2-31.)  While this statute took effect after the alleged events, the statute does reflect public policy prior to enactment. The Declaratory Relief cause of action addresses the issue and seeks a declaration of Plaintiff’s future rights.

 

 

DEMURRER TO SECOND Amended COMPLAINT of AYLSWORTH BY WELLS FARGO BANK, N.A., CITIBANK, N.A. AND PRIVATE MORTGAGE ADVISORS, LLC

 

 

·         The Demurrers as to the 1st Cause of Action (Unfair and Deceptive Business Practice in Loan Servicing, Bus. & Prof. Code § 17200) and the 4th Cause of Action (Promissory Estoppel) are OVERRULED.  Plaintiff has adequately alleged damages arising out of the conduct of Defendants.  Plaintiff, thus, has standing to assert this cause of action.  Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 94, 83  

 

·         The Demurrer as to the 2nd Cause of Action (Unfair and Deceptive Business Practices in Foreclosure Process, Bus. & Prof. Code § 17200) is SUSTAINED WITHOUT LEAVE TO AMEND for failing to allege sufficient facts to constitute a cause of action (CCP § 430.10(e)). If the signors were not authorized to sign on behalf of an entity, it is the entity that is the victim, not Plaintiff (Fontenot v. Wells Fargo Bank (2011) 198 Cal.App.4th 256, 272).  Plaintiff was not harmed by the purported robo-signing or purported lack of authority.  The mere allegation that the signors of the Notice of Default and Notice of Sale were robo-signed does not state a claim.

 

·         The Demurrer to the 4th Cause of Action (Promissory Estoppel) is OVERRULED.  The elements of a promissory estoppel claim are: 1) a promise clear and unambiguous in its terms; 2) reliance by the party to whom the promise is made; 3) the reliance must be both reasonable and foreseeable and 4) the party asserting the estoppel must be injured by his/her reliance (Aceves  v. U.S. Bank N.A. (2011) 192 Cal.App.4th 218, 225). 

 

·         Plaintiff alleges she was promised a loan modification during the time she was making the trial plan payments.  Plaintiff relied upon the promise continuing to allow payments to be withdrawn, then she continued to contact Wells Fargo.  This certainly appears to satisfy the requirements for a promissory estoppel cause of action.

 

·         The Demurrer as to the 5th Cause of Action (Quiet Title) is SUSTAINED WITHOUT LEAVE TO AMEND because Plaintiff failed to allege facts sufficient to constitute a cause of action, including tender.

 

o   This cause of action fails because Plaintiff has not tendered the amount owed on the Loan.  A trustor cannot quiet title without discharging the debt (Aguilar v. Bocci (1974) 39 Cal.App.3d 475, 477).  This tender requirement applies to any cause of action for irregularity in the sale procedure (Abdallah v. United Sav. Bank (1996) 43 Cal.App.4th 1101, 1109).  The rationale is that if Plaintiff could not have redeemed the property, any irregularities in the sale did not result in damages to the plaintiff (FPCI RE-HAB 01 v. E. & G. Investments, Ltd (1987) 207 Cal.App.3d 1018, 1021-1022).

 

·         Defendants shall file and serve their Answers within 15 days of service of Notice of Entry of Order.

 

·         Demurring parties are 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 524759       GINGER CHARLES, ET AL. VS. WELLS FARGO, A NATIONAL

                   ASSOCIATION

 

 

GINGER CHARLES                        MATTHEW MELLEN

WELLS FARGO BANK, N.A.                EDWARD R. BUELL

 

 

DEMURRER TO SECOND Amended COMPLAINT of CHARLES BY WELLS FARGO BANK, N.A. AND HSBC BANK USA, NATIONAL ASSOCIATION

 

 

·         Defendant HSBC’s Demurrer is overruled. The Complaint sufficiently alleges that acts committed by Wells Fargo were in its role as agent of HSBC.

 

·         The Demurrer based on judicial estoppel is overruled. The In re: Wolfberg case is not controlling.  Defendant fails to acknowledge the case of In re: Baldwin (M.D. Ala. 2004) 307 B.R. 251, which, like the present action, involved a Chapter 13 bankruptcy.  Wolfberg involved a Chapter 11 bankruptcy.  The Court in In re: Baldwin explained the fundamental difference between Chapter 11 and Chapter 13 bankruptcies in concluding that the claim preclusive effects are different in each.  In a Chapter 13 bankruptcy, the confirmation of a plan does not automatically preclude litigating a claim that was added in the Schedule of Assets after the confirmation.  (In re: Baldwin (M.D. Ala. 2004) 307 B.R. 251, 262-65.)  The Court rules that Plaintiffs amending the schedule of assets after confirmation of the Chapter 13 plan does not, as a matter of law, preclude litigating the present action. 

 

·         Further, applying judicial estoppel involves questions of fact if a determination of fact is necessary to make a ruling on the claim. Only if facts material to a determination of judicial estoppel are undisputed, a question of law is presented. (Swahn Group, Inc. v. Segal (2010) 183 Cal.App.4th 831, 843.)  Among other things, judicial estoppel requires a finding that omitting a claim from the Schedule of Assets “was not taken as a result of ignorance, fraud, or mistake.”  (Kelsey v. Waste Management of Alameda County (1999) 76 Cal.App.4th 590, 598.)  “Intent required for judicial estoppel is not met by simple error or inadvertence; purposeful contradiction is required.  Concealment of claims in a bankruptcy proceeding can warrant the application of judicial estoppel.  The Court can infer deliberate or intentional manipulation where the debtor, who fails to report a claim, has both a motive for concealing the claim and knowledge of the existence of the claim.”  (In re: Baldwin (M.D. Ala. (2004) 307 B.R. 251, 269.) Neither the Complaint nor any judicially noticeable matter compels such a finding.  This element  presents a question of fact that cannot be resolved on demurer.

 

·         The Demurrer’s citation to Benetatos v Hellenic Republic (9th Cir 2010) 371 Fed.Appx. 770, is not on point because, unlike the present action, the plaintiff there did not amend his Schedule of Assets to include the civil action.

 

·         The Demurrer to the 1st Cause of Action (Breach of Implied Covenant) is overruled.  The Demurrer argues that the Complaint fails to allege a basis for tortious breach of implied covenant.  The 1st Cause of Action is not the tort claim.  It asserts a claim for non-tortious breach.

 

·         The Demurrer to the 2nd Cause of Action (Promissory Estoppel) is overruled.  The Complaint does not allege that Defendant’s promise “prevented” them from keeping up with their mortgage or avoiding foreclosure. (See Demurrer Points and Authorities at 8:26 – 9:6).  The Complaint alleges that the promise induced Plaintiffs to default at a time when they were able to make payments. (SAC ¶¶ 41 & 42.) 

 

·         The Demurrer to the 3rd Cause of Action (Civ. Code § 2923.6) is overruled.  That Plaintiffs fail to allege damages is not a pleading defect. Code § 2923.6 requires that a lender provide written explanation for denying a loan modification and that a Notice of Default cannot be recorded before that happens.   The remedy, as sought by Plaintiffs, is not damages, but injunctive relief to require that Defendant rescind the Notice of Default.  As for the Demurrer’s argument against subdivision (g) of § 2923.6, the Demurrer fails for the same reason as the previous Demurrer, which is that the claim is based on subdivision (f), not (g). (SAC ¶¶ 48 and 50.) 

 

·         The Demurrer to the 4th Cause of Action (Civ. Code § 2923.7 [single point of contact] is overruled. Defendants improperly assert the same ground for demurrer that was rejected on their previous Demurrer.  The pleading does not disclose that the five individuals who handled Plaintiffs’ application were “a team” or five unrelated, distinct individuals (not a team). 

 

·         The Demurrer to the 5th Cause of Action (Civ. Code § 2924) is sustained without leave to amend.  The Notice of Default contained amounts that Defendant contended constituted the default.  Paragraph 61 does not allege a violation of § 2924.  Regardless, Plaintiffs knew that they were in default; they specifically admit that they intentionally defaulted on their payments because Defendant promised not to foreclose if they did so while seeking loan modification. 

 

·         Defendants shall file and serve their Answers no later than October 13, 2014.

 

·         Demurring parties are 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 525519       DARRYL KEITH PHILLIPS VS. FELICIA BYARS, ET AL.

 

 

DARRYL KEITH PHILLIPS                 PRO/PER

FELICIA BYARS                         JOHN L. FLEGEL

 

 

MOTION TO STRIKE BY COUNTY OF SAN MATEO AND SUSANN WOODS

 

 

·         Defendants' Motion to Strike the First Amended Complaint is granted.  Plaintiff did not seek the required leave of Court to add new defendants or causes of action in the First Amended Complaint. Harris v. Wachovia Mortg., FSB (2010) 185 Cal.App.4th 1018, 1023; People By and Through Dept. of Public Works v. Clausen (1967) 248 Cal.App.2d 770, 785.

 

 

DEMURRER TO FIRst Amended COMPLAINT of PHILLIPS BY COUNTY OF SAN MATEO AND SUSANN WOODS

 

 

·         Defendants Susann Woods and County of San Mateo's Demurrer to the First Amended Complaint is SUSTAINED without leave to amend.  The Complaint is barred by the Statute of Limitations (CCP § 340(c)) as the conduct complained of took place on August 9, 2012 and this action was filed more than a year later on December 2, 2013.  Plaintiff has failed to state a cause of action for libel: Plaintiff has failed to allege any facts showing publication by Woods or the County and the publication, if any, would be privileged (CC § 47).  Furthermore, the alleged facts show that Woods would have immunity pursuant to Government Code § 821.6 and Welfare & Institutions Code § 15634(a).

 

·         Demurring parties are 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 526785       JENNIFER CHANG vs. LENA MENDELSON, et al.

 

 

JENNIFER CHANG                        TED MECHTENBERG

LENA MENDELSON                        THOMAS J. FEENEY

 

 

MOTION FOR ORDER COMPELLING PLAINTIFF’S ANSWERS TO FORM INTERROGATORIES - GENERAL DEMAND FOR INSPECTION OF DOCUMENTS AND SPECIAL INTERROGATORIES AND FOR AWARD OF MONETARY SANCTIONS BY LENA MENDELSON

 

 

·         At the request of the moving party, Defendant Lena Mendelson, this matter has been taken off calendar.

 

_____________________________________________________________________

9:00

7

CIV 529208       DAVID KENDELL TESELLE, ET AL. VS. KEVIN GOMES, ET AL.

 

 

DAVID KENDELL TESELLE                 JENNIFER L. KEEL

KEVIN GOMES

 

 

MOTION TO STRIKE REQUEST FOR EXEMPLARY DAMAGES FROM COMPLAINT BY GEICO INSURANCE COMPANY

 

 

·         Defendant’s Motion to Strike Request for Exemplary Damages is GRANTED.  Plaintiffs failed to allege any facts that rise to the level of “malice, fraud or oppression” that is required to support a punitive damages award.  Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63; CCP § 3294.

 

 

DEMURRER TO COMPLAINT of TESELLE BY GEICO INSURANCE COMPANY

 

 

·         Defendant’s Requests for Judicial Notice are GRANTED pursuant to Cal. Evid. Code § 452(d).

 

·         Defendant’s Demurrer is SUSTAINED WITH LEAVE TO AMEND.  Plaintiffs failed to state sufficient facts to constitute any cause of action against Defendant Geico Insurance Company.

 

·         1st Cause of Action– Negligence:  Plaintiffs’ 1st Cause of Action contains no allegations against Defendant Geico whatsoever.  Further, if Plaintiffs intended to sue Defendant Geico for Defendant Gomes’ negligence, Plaintiffs must wait until they have a final judgment against Defendant Gomes to bring a suit against Defendant Geico.  Cal. Ins. Code § 11580(b)(2).

 

·         3rd Cause of Action – Underinsured/Uninsured Motorist Coverage:  Plaintiffs have failed to allege that Defendant Gomes does not have insurance or is underinsured.  Plaintiffs may not allege this cause of action “in the event” that Defendant Gomes is uninsured or underinsured.  In the event that Plaintiffs discover Defendant Gomes does not have insurance or is underinsured, they may seek leave to amend their Complaint to add this cause of action.  Further, Plaintiffs’ cause of action for underinsured motorist coverage is premature as Plaintiffs must first exhaust all claims against the alleged tortfeasor.  Cal. Ins. Code § 11580.2(p)(3).

 

·         4th Cause of Action – Subrogation: Plaintiffs’ 4th Cause of Action makes no allegations directly against Defendant Geico.  If Plaintiffs are trying to allege a cause of action for their insurer’s failure to pay their claims, it would more properly be brought as a breach of contract cause of action.  Regardless, Plaintiffs do not state sufficient facts to constitute any cause of action against Defendant Geico.

 

·         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.

 

_____________________________________________________________________

9:01

8

CIV 515621       PARK PLAZA TOWERS OWNERS ASSOCIATION VS. PATRICK

                   MCERLAIN, ET AL.

 

 

PARK PLAZA TOWERS OWNERS ASSOCIATION  GRANT H. BAKER

PATRICK MCERLAIN                      RICHARD S. BAUM

 

 

SPECIAL MOTION TO STRIKE THE FOURTH CAUSE OF ACTION FOR DEFAMATION BY PARK PLAZA TOWERS OWNERS ASSOCIATION, JOSEPH SCHREURS, LADONNA HORWITZ, SHERRY BERENSTEIN, CYNTHIA SHREURS, ROBERT FAUSSNER, JULIE ROBLES, DAVID BEHLING AND BEHLING PROPERTY MANAGEMENT CORPORATION

 

 

·         The Court has continued this matter to October 28, 2014 at 9:00 a.m. in the Law and Motion department.

 

 

MOTION TO STAY THE ACTION BY PARK PLAZA TOWERS OWNERS ASSOCIATION, JOSEPH SCHREURS, LADONNA HORWITZ, SHERRY BERENSTEIN, CYNTHIA SHREURS, ROBERT FAUSSNER, JULIE ROBLES, DAVID BEHLING AND BEHLING PROPERTY MANAGEMENT CORPORATION

 

 

·         The Court has continued this matter to October 28, 2014 at 9:00 a.m. in the Law and Motion department.

 


 

 

 

 


POSTED:  3:17 PM

© 2014 Superior Court of San Mateo County