July 29, 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 LISA A. NOVAK

Department 13

 

400 County Center, Redwood City

Courtroom 2C

 

JULY 28, 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 493254       JPMORGAN CHASE BANK, NATIONAL ASSOCIATION VS. HANAN

                   SHIHEIBER, ET AL.

 

 

JPMORGAN CHASE BANK, N.A.             MIA S. BLACKLER

HANAN SHIHEIBER                       PRO/PER

 

 

MOTION FOR ORDER GRANTING LEAVE TO FILE THIRD AMENDED CROSS-COMPLAINT BY HANAN SHIHEIBER

 

 

·         Defendant/Cross-Complainant’s Motion for Leave to File a Third Amended Cross-Complaint is DENIED. 

 

  • Defendant/Cross-Complainant’s original Cross-Complaint was filed September 28, 2010.  Successive demurrers resulted in successive orders sustaining the same with leave to amend.  The Second Amended Cross-Complaint was filed on April 29, 2011.  As set forth in Cross-Defendant’s Opposition, in the intervening three years the Court has heard and ruled on dispositive motions, eliminating several causes of action, as well as five previous motions by Defendant/Cross-Complainant to file a Third Amended Cross-Complaint, all such motions failing for distinct procedural reasons.  The matter has twice been on the trial calendar with all parties announcing “ready.”  Discovery was closed long ago.

 

  • While the Court recognizes the liberality to be applied in considering motions to amend the pleadings, such judicial philosophy does not mandate that the Court do so without any consideration whatsoever.  The Court has the inherent power to control the litigation before it, with a legitimate aspiration of aiding matters to proceed in a timely and judicious manner. Moreover, in consideration of relief such as Defendant/Cross-Complainant seeks yet again, the Court must also consider the possibility of prejudice It is with these principles in mind that the motion is denied.

 

  • Defendant/Cross-Complainant seeks to add five new causes of action which would significantly alter the tenor of the underlying case.  Remarkably, she seeks to add two which are in fact repeated claims previously stricken without leave to amend.  Her argument that the new causes of action stem from facts occurring after the filing of the initial Cross-Complaint does not justify relief.  She is seeking to re-allege claims already dismissed by asserting new facts.  Although Defendant/Cross-Complainant admits this, she has not sought nor been granted relief to supplement her initial pleading as is required under such circumstances.  CCP § 464; Herbert v. Los Angeles Raiders, Ltd. (1991) 23 Cal.App.4th 414 [Professional football player was not entitled to amend complaint based on subsequent events so as to avoid general demurrer where player did not move for leave to file supplemental complaint and facts outlined did not merely supplement allegations of amended complaint but indicated new and different cause of action].   While Defendant/Cross-Complainant has not sought to file a supplemental Second Amended Cross-Complaint, an effort to do so would not provide an opportunity to allege facts establishing an entirely new cause of action.  Flood v. Simpson (1975) 45 Cal.App.3d 644.  Her “new facts” as alleged do in fact seek to allege five new causes of action; she has failed to follow proper procedure while at the same time seeks this amendment to seemingly proceed on an entirely new case.

 

  • Several factors must be considered in evaluating whether or not allowing this amendment would result in prejudice to the Plaintiff/Cross-Defendant.  Generally speaking when a trial date is 10 months away, as is the case herein, that would seem to militate against the idea of prejudice.  However, that is only one of many factors.  As stated previously, this matter has twice been called for trial; it was continued only after each side exchanged motions in limine and it was ultimately determined no court was available.  Discovery closed long, long ago.  To follow Defendant/Cross-Complainant’s invitation to re-open discovery would result in yet greater expense for Plaintiff/Cross-Defendant.  Moreover, the Plaintiff/Cross-Defendant would once again be forced to engage in what can only be presumed to be extensive motion practice, if the history of this case is any guide.  Finally, Defendant/Cross-Complainant has not acted diligently in seeking relief in a manner which is procedurally sound. 

 

·         If the tentative ruling is uncontested, it shall become the order of the Court. The moving party 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. 

 

 

MOTION TO PERFORM AN IN CAMERA REVIEW OF THE US BANK RECORDS AND THEREAFTER ALLOW THE PHOTOCOPYING OF THE SAME BY HANAN SHIHEIBER

 

 

·         This Motion to Perform an In Camera Review of the US Bank Records and Thereafter Allow the Photocopying of the Same is DENIED.

 

·         This motion stems from Defendant/Cross-Complainant issuing a trial subpoena for records from US Bank.  This is not a deposition subpoena.  No good cause or justification for such relief has been shown.  This ruling is without prejudice to allow Ms. Shiheiber to bring such a motion before the trial judge.

 

·         If the tentative ruling is uncontested, it shall become the order of the Court. The moving party 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. 

 

 

MOTION TO QUASH TRIAL SUBPOENA DUCES TECUM ISSUED FROM THE COMMONWEALTH OF MASSACHUSETTS TO U.S. BANK, N.A. AND TO PREVENT INSPECTION OF ANY DOCUMENTS PRODUCED IN RESPONSE THERETO BY JPMORGAN CHASE BANK, NATIONAL ASSOCIATION

 

 

·         Plaintiff/Cross-Defendant’s Motion to Quash the Trial Subpoena Duces Tecum is DENIED.  Relevancy of evidence subpoenaed for trial is a matter for the trial court to determine, not the Law and Motion department.  It is curious that Plaintiff/Cross-Defendant argues this point, which the Court adopts, yet somehow thought it relevant for the Law and Motion department to review the trial exhibits in camera.  Be that as it may, this motion is denied without prejudice to allow Plaintiff/Cross-Defendant to bring such a motion before the trial judge.

 

·         If the tentative ruling is uncontested, it shall become the order of the Court. The moving party 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

2

CIV 514443       JOHN HEALY VS. MICHAEL RABBITT, ET AL.

 

 

JOHN HEALY                            KEVIN D. FREDERICK

MICHAEL RABBITT                       BRIAN W. NEWCOMB

 

 

JOINDER OF JOHN HEALY AND SARAH HEALY TO MARTIN HEALY'S MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION

 

 

·         Defendants JOHN HEALY and SARAH HEALY’s Joinder is DENIED.   John and Sarah brought a motion for summary judgment in their litigation with Michael Rabbitt arguing that Plaintiff’s claims were barred by the applicable statute of limitations.  That motion was denied.  Essentially they now seek reconsideration of that ruling in a manner not in conformity with CCP § 1008.

 

·         If the tentative ruling is uncontested, it shall become the order of the Court. The moving party 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. 

 

 

MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION OF ISSUES BY MARTIN HEALY AGAINST MICHAEL RABBITT

 

 

·         Defendant MARTIN HEALY’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication of Plaintiff MICHAEL RABBITT’s 1st, 2nd, 3rd, 4th and 5th Causes of Action is DENIED. 

 

·         There is a triable issue of material fact as to the date on which Plaintiff’s causes of action accrued.  (UMF Nos. 6, 7 and 14; Declaration of Neal Divver.)  Accordingly, summary judgment/adjudication may not be entered.  CCP § 437c.

 

·         If the tentative ruling is uncontested, it shall become the order of the Court. The moving party 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 523261       APELU FINAUGA, ET AL. VS. REMY'S QUALITY

                   CONSTRUCTION, INC., ET AL.

 

 

APELU FINAUGA                         CONOR GRANAHAN

REMY'S QUALITY CONSTRUCTION, INC.     DAN BEATTY

 

 

MOTION TO AMEND COMPLAINT BY APELU FINAUGA AND CATHERINE FINAUGA

 

 

·         The Motion to Amend the Complaint is GRANTED pursuant to ccp § 473(A) AND 576.  Defendant shall have 30 days in which to file a responsive pleading following service of the Amended Complaint.

 

·         If the tentative ruling is uncontested, it shall become the order of the Court. The moving party 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

4

CIV 526824       LUIS GUERRA LOBATO VS. JILL RACKLIFFE

 

 

LUIS GUERRA LOBATO                    NOEL D. HIBBARD

JILL RACKLIFFE

 

 

MOTION TO BE RELIEVED AS COUNSEL FOR LUIS GUERRA LOBATO BY NOEL HIBBARD

 

 

·         The unopposed 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.

 

_____________________________________________________________________

9:00

5

CIV 528203       HAAMID ALI VS. PNC MORTGAGE, ET AL.

 

 

HAAMID ALI                            JONATHAN M. REYMANN

PNC MORTGAGE                          ABRAHAM J. COLMAN

 

 

DEMURRER TO COMPLAINT of ALI BY PNC MORTGAGE

 

 

·         The Demurrer is sustained without leave to amend on the grounds that Plaintiff’s claim against PNC Bank is barred by the doctrine of res judicata.

 

  • The doctrine of res judicata gives certain conclusive effect to a former judgment in subsequent litigation involving the same controversy. It seeks to curtail multiple litigation causing vexation and expense to the parties and wasted effort and expense in judicial administration.

 

  • On June 11, 2013, PNC obtained an order sustaining its demurrer to Plaintiff’s complaint for wrongful foreclosure in CIV506993.  The complaint in this action again asserts a claim of wrongful foreclosure against PNC Bank based on the same factual allegations.  While Plaintiff now alleges that PNC’s actions constitute statutory violations, this merely represents a change in the theory of liability, not a new cause of action. 

 

  • In addition, Plaintiff fails to state a cause of action for wrongful foreclosure based on defects in the securitization process because he lacks standing to enforce the Pooling and Servicing Agreement (Jenkins v. JP Morgan Chase Bank (2013) 216 Cal.App.4th 497) and the recorded foreclosure documents establish the process has been conducted in compliance with the Civil Code provisions governing non-judicial foreclosure.

 

·         If the tentative ruling is uncontested, it shall become the order of the Court. The moving party 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

CIV 528578       KATHRYN DEGROOT, ET AL. VS. SERENITY 4 MANAGEMENT

                   SERVICES, LLC, ET AL.

 

 

KATHRYN DEGROOT                       KARMAN RATLIFF

SERENITY 4 MANAGEMENT SERVICES, LLC   VINCENT W. MARSELLA

 

 

MOTION TO STRIKE BY SERENITY 4 MANAGEMENT SERVICES, LLC AND ST. JOHN’S VOLUNTEERS DBA BROOKSIDE CONVALESCENT HOSPITAL

 

 

·         The Motion to Strike is denied as to all matters.

 

  • As to attorney’s fees, the facts alleged in ¶¶ 17 through 24, among others, are sufficient to constitute “reckless neglect” for purposes of enhanced remedies under the Elder Abuse Act.

 

  • As to punitive damages, the requirements of ccp § 425.13 for pleading punitive damages do not apply to this action.  (See Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 776.) The facts alleged in ¶¶ 17 through 24, among others, are sufficient to allege malice (reckless disregard).  The Complaint alleges sufficient facts against a “managing agent” for purposes of Civil Code § 3294, subd. (b).  (E.g., Complaint ¶¶ 18, 20, 25 and 28.)

 

·         If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, Plaintiff 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

 

 

DEMURRER TO COMPLAINT of DEGROOT BY SERENITY 4 MANAGEMENT SERVICES, LLC AND ST. JOHN’S VOLUNTEERS DBA BROOKSIDE CONVALESCENT HOSPITAL

 

 

·         The Court notes that Defendants have withdrawn their Demurrer to the 4th Cause of Action.  (Reply at 1.)

 

·         Demurrer to the 1st Cause of Action (Elder Abuse) is overruled.

 

  • The allegations required for showing recklessness, oppression or fraud are required only when a plaintiff seeks enhanced remedies of attorney’s fees and costs.  They are not an element of the cause of action for elder abuse.  The failure to allege recklessness, oppression or fraud might preclude recovery of enhanced remedies, but the omission does not render the cause of action defective.  The sufficiency of allegations for enhanced remedies is addressed in Defendants’ Motion to Strike and not a ground for demurrer.  Having recognized that fact, Plaintiffs have alleged facts specifically showing recklessness.

 

·         Demurrer to the 3rd Cause of Action (Violation of Patient’s Bill of Rights) is overruled.

 

  • The specific statutory or regulatory basis for the claim is set forth in ¶ 24(a) through 24(h).  The factual basis of the alleged violations is set forth in ¶¶ 17 through 24.

 

·         Defendants shall file and serve an Answer (or Answers) no later than February 11, 2014.

 

·         If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, Plaintiff 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.

 

_____________________________________________________________________

9:00

7

CLJ 526778       JILL EASTWOOD VS. THERESA MAYFIELD-BOZA

 

 

JILL EASTWOOD                         PRO/PER

THERESA MAYFIELD-BOZA                 NANCY M. BATTEL

 

 

MOTION TO BE RELIEVED AS COUNSEL FOR THERESA MAYFIELD-BOZA BY NANCY M. BATTEL

 

 

·         Counsel Nancy M. Battel’s Motion to be Relieved as Counsel for Defendant Theresa Mayfield-Boza is GRANTED pursuant to CCP § 284(2) and CRC § 3.1362.  Counsel has filed this motion using the required forms and has provided notice to her client and to Plaintiff.  Counsel has set forth good cause to be relieved in that her client requested the same but has failed to return a signed form relieving Ms. Battel.   The Court notes that Defendant submitted to the clerk documents which were received June 25, 2014.  This corroborates the assertion that Defendant seeks to continue in pro per.

 

_____________________________________________________________________

9:01

8

CLJ 209816       VIANCA V. PARTIDA VS. MARIA ELENA GUTIERREZ, ET AL.

 

 

VIANCA V. PARTIDA                     PRO/PER

MARIA ELENA GUTIERREZ

 

 

MOTION TO QUASH SERVICE OF UNALWFUL DETAINER SUMMONS AND COMPLAINT BY MARIA ELENA GUTIERREZ

 

 

·         Defendant Maria Elena Gutierrez’s Motion to Quash is GRANTED.

 

·         Plaintiff has failed to provide sufficient notice to terminate a month to month tenancy.  Ordinarily a month to month tenancy can be terminated upon 30 days’ notice pursuant to Civil Code § 1946.  The only instances in which a lessor may unconditionally terminate a tenancy on 3 days’ notice is where the tenant has committed an incurable breach of a lease covenant or maintained a nuisance on the premises.  See CCP § 1161(3) and (4).  Since the plaintiff has failed to provide 30 days’ notice nor terminated the tenancy based upon an incurable breach of the lease covenant or the maintenance of a nuisance on the premises, her 3-day notice to quit is insufficient and fails to support a claim for unlawful detainer.

 

·         If the tentative ruling is uncontested, it shall become the order of the Court. The moving party 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 SPECIAL SET

9

CIV 519761       KAREN WILSON VS. LAW OFFICES OF DAVID G. FINKELSTEIN,

                   APC, ET AL.

 

 

KAREN WILSON                                    RUSSELL H. TOWNSEND

LAW OFFICES OF DAVID G. FINKELSTEIN, APC        JERRY R. HAUSER

 

 

MOTION FOR REASONABLE ATTORNEYS’ FEES BY LAW OFFICES OF DAVID G. FINKELSTEIN, APC, DAVID G. FINKELSTEIN AND BRUCE M. LUBARSKY

 

 

·         This motion follows Defendants’ partial success on an Anti-SLAPP motion which was heard by this Court on April 15, 2014.  Defendants challenged two of the four causes of action, succeeding on one of them, Count 4, Malicious Prosecution.  Three causes of action remain in a matter that is still pending.

 

·         Plaintiff’s position on this motion is that Defendants are not the prevailing parties under CCP § 425.16 is unavailing.  The Court’s order following the April 15th hearing clearly sets forth the parameters of Defendants’ success.  However, it was not a total victory.  Defendants are entitled to reasonable attorneys’ fees.  Unfortunately, the declaration submitted by attorney Jerry R. Hauser is insufficient for this Court to determine what a reasonable amount is.  The Court does not agree with Defendants that the full amount requested, $22,240.00, is warranted.  The Court has three primary issues with the request:

 

1. The Court does not accept Defendants’ proposition that 90% of all time billed in representing Defendants in this matter as a whole was reasonably devoted solely to preparation of the Anti-SLAPP motion.

 

2. Counsel has failed to provide any evidence as to the reasonable rate for attorneys with commensurate levels of experience in this market.

 

3. The time invested as set forth in the declaration is equivalent to block billing, which is discouraged if not outright rejected as a means of admissible evidence establishing actual time spent on the motion.

 

·         The Court will continue this motion to August 6, 2014 at 9:00 a.m. in Department 13 to allow counsel for Defendants to submit a supplemental declaration setting forth more specific detail as to actual billing on this motion and evidence supporting a loadstar determination of a reasonable fee.  Any supplemental declaration shall be filed and served on opposing counsel on or before July 30, 2014.  Opposing counsel may file and serve a supplemental reply not to exceed two pages on or before August 4, 2014.

 

 


 

 

 

 


POSTED:  3:00 PM

 

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