September 5, 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 susan irene etezadi

Department 18

 

400 County Center, Redwood City

Courtroom 2M

 

Monday, August 31, 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.

 

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 517132       GEORGE MARDIKIAN VS. WAWANESA GENERAL INSURANCE

                   COMPANY

 

 

GEORGE MARDIKIAN                      MONTIE S. DAY

WAWANESA GENERAL INSURANCE COMPANY    KENNETH N. GREENFIELD

 

 

MOTION FOR LEAVE TO FILE SUPPLEMENTAL COMPLAINT BY GEORGE MARDIKIAN

 

The Motion is DENIED.

 

The proposed supplemental complaint consists primarily of allegations which, even if proven, would be nonactionable because they fall within the litigation privilege of Civil Code section 47. Plaintiff fails to offer any reasonable explanation for not bringing this motion earlier, as Plaintiff intended to do in 2013.

 

 

If the tentative ruling is uncontested, prevailing 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 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.

    

 

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9:00

2

CIV 528024     CALDERA PROPERTIES, LLC. VS. MICHAEL CHALHOUB, ET AL.

 

 

CALDERA PROPERTIES, LLC                  CYNTHIA HACKLER

MICHAEL CHALHOUB                         CHARLES S. BRONITSKY

 

 

MOTION FOR SANCTIONS UNDER CCP 128.7 BY EUGENE BLEFARI

 

 

The Motion for Sanctions is denied.  Defendant has not established that the assertion of the claims in the Second Amended Complaint is objectively unreasonable.  Peake v. Underwood (2014) 227 Cal.App.4th 428. 

 

 

Plaintiff’s request for sanctions is denied.  CCP §128.7(h) provides that a sanctions motion brought for an improper purpose shall, itself, be subject to a motion for sanctions.  Here, plaintiff seeks sanctions in the context of its opposition.  This does not comply with the procedural requirements set out in CCP §128.7(c). 

 

 

If the tentative ruling is uncontested, prevailing 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 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.

 

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9:00

3

CIV 531133       MIGUEL VINCES BUSTAMANTE VS. REGIS CONTRACTORS BAY

                   AREA, LP., ET AL.

 

 

MIGUEL VINCES BUSTAMANTE              DENNIS C. BIRKHIMER

REGIS CONTRACTORS BAY AREA, LP.       ELIZABETH A. SKANE

 

 

MOTION FOR AN ORDER COMPELLING DEFENDANT TO FURTHER RESPOND BY MIGUEL VINCES BUSTAMANTE

 

 

Plaintiff’s Motion for an Order Compelling Further Responses to its Request for Production of Documents is GRANTED IN PART.  The Court notes that Defendant Diamond Fence Company, Inc. has served Plaintiff with a copy of its verified supplemental responses.  The original of the supplemental responses should have been served.  CCP §§ 2031.260(a), 2031.290(b).  Diamond Fence Company, Inc. shall serve the original of its supplemental responses upon plaintiff within 15 days.

 

If the tentative ruling is uncontested, 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 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.

 

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9:00

4

CIV 531264       MARIE COMMICK VS. PROMETHEUS REAL ESTATE GROUP, INC.,

                   ET AL.

 

 

MARIE COMMICK                         EDWIN AIWAZIAN

PROMETHEUS REAL ESTATE GROUP, INC.    LISA BARNETT SWEEN

 

 

MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF’S SPECIAL INTERROGATORIES BY MARIE COMMICK

 

 

The Court on its own Motion is continuing this Matter until October 9, 2015 in the Law & Motion Dept. at 9:00 a.m. The status of this case as complex should be decided first before the Court addresses discovery issues.

 

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9:00

5

CIV 533028       DCFS TRUST VS. LAWRENCE M. ASUNCION

 

 

DCFS TRUST                            MICHAEL S. HUNT

LAWRENCE M. ASUNCION                  CHARLES T. MARSHALL

 

 

DEMURRER TO FIRST Amended COMPLAINT BY LAWRENCE M. ASUNCION

 

 

Defendant Lawrence Asuncion’s Demurrer to the 1st Amended Complaint is OVERRULED. A demurrer can be used only to challenge defects that appear on the face of the pleading or from matters that are judicially noticeable. No other extrinsic evidence can be considered. Ion Equipment Corp. v. Nelson (1980) 110 Cal App 3rd 868, 881. A demurrer challenges only the legal sufficiency of the complaint, not the truth or accuracy of its factual allegations or the plaintiff’s ability to prove those allegations. Assurance Co. of America v. Haven (1995) 32 Cal App 4th 78. Defendant has not requested that the court take judicial notice of anything. Limited to the allegations of the complaint, the demurrer fails. The amended complaint sufficiently alleges the elements of a cause of action for breach of contract: 1) a contract; 2) plaintiff’s performance or excuse for nonperformance; 3) defendant’s breach and 4) damages. Acoustics, Inc. v. Trepte Construction Co. (1971) 14 Cal App 3d 887, 913. See ¶¶BC-1-5 of the FAC.

 

 

MOTION TO STRIKE ATTORNEY'S FEES BY LAWRENCE M. ASUNCION

 

 

Defendant Lawrence Asuncion’s Motion to Strike the 1st Amended Complaint is DENIED.  The lease agreement attached to the first amended complaint does contain an attorney’s fee provision in ¶23(a). It is one of the damages provided for under the early termination provision of the lease.  And as with the demurrer, this is a pleading motion. It is not an evidentiary motion. The grounds must appear on the face of the pleading or from matters which the court may judicially notice. CCP §437.

 

 

If the tentative ruling is uncontested, prevailing 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 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.

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9:00

6

CIV 533340       MAILAU KAULAVE VS. RESIDENTIAL MORTGAE LOAN TRUST

                  2013-TT2, ET AL.

 

 

MAILAU KAULAVE                        ARASTO FARSAD

RESIDENTIAL MORTGAGE LOAN TRUST 2013-TT2

 

 

DEMURRER TO COMPLAINT BY RESIDENTIAL MORTGAGE LOAN TRUST 2013-TT2, ET AL.

 

SEE BELOW

 

 

DEMURRER TO COMPLAINT BY FRANKLIN CREDI MANAGEMENT CORPOATION, ET AL.

 

 

Defendant Residential Mortgage Loan Trust 2013-TT2 by U.S. Bank, N.A. as legal title trustee and Defendant Franklin Credit Management Corporation’s Demurrers to the Complaint are decided as follows:

 

As to the general demurrer to the Complaint, tender of the amount due is not required when alleging a statutory violation, as Plaintiff is here by alleging violations of the Civil Code. Mabry v. Superior Court, 185 Cal. App. 4th 208, 225 (2010).

 

As to the first cause of action, the demurrer to this cause of action is SUSTAINED WITHOUT LEAVE TO AMEND. The remedy for violation of Civ. Code § 2923.5 is postponement of the foreclosure sale only. Mabry v. Superior Court, 185 Cal. App. 4th 208, 221 (2010). After the sale has occurred, the borrower has no remedy under this code section. The Complaint (¶ 30) admits that the property was sold. Where defects are evident on the face of the complaint, such as where the elements of a cause of action are not properly alleged, the cause of action is a proper subject of a demurrer. Cantu v. Resolution Trust Corp., 4 Cal. App. 4th 857 (1992).

 

As to the second cause of action, the DEMURRER IS OVERRULED. Defendants argue that the sale originally set for October 28, 2015 went forward on that date and the sale was not delayed until November, as alleged in the Complaint. However, the Court must take all pleadings as true for purposes of demurrer. Ellenberger v. Espinosa, 30 Cal. App. 4th 968, 994 (2004).  Therefore, the demurrer to this cause of action is overruled.

 

As to the third cause of action, the DEMURRER IS OVERRULED. This cause of action addresses a violation of Civ. Code § 2924.17, Plaintiff argues that it was a continuing violation. Civ. Code § 2924.12(b), reads, “After a trustee’s deed upon sale has been recorded, a mortgage servicer, mortgagee, trustee … shall be liable to a borrower for actual economic damages pursuant to § 3281, resulting from a material violation of § … 2924.17 by that mortgage servicer … where the violation was not corrected and remedied prior to the recordation of the trustee’s deed upon sale.” Therefore, the deadline is the recordation of the trustee’s deed upon sale, which the Complaint alleges was Dec. 9, 2014 (¶ 30), which is after the effective date of the Homeowners’ Bill of Rights. The demurrer to this cause of action is overruled.

 

As to the fourth cause of action, the DEMURRER IS OVERRULED. Plaintiff bases his fourth cause of action on the claims made in the first through third causes of action, as well as practices that are “unfair.” As the second and third causes of action remain and because of the allegations in the Complaint of “unfair” business practices, the demurrer to this cause of action is overruled.

 

Defendant’s Request for Judicial Notice is GRANTED only insofar as the documents were duly filed or recorded, but not as to the truth of any matters contained therein because that information is hearsay.

 

 

If the tentative ruling is uncontested, 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 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.

 

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9:00

7

CIV 533939       KENNETH FLOOD VS. ABBOT VASCULAR, INC., ET AL.

 

 

KENNETH FLOOD                         AARON B. MARKOWITZ

ABBOT VASCULAR, INC.                  SCOTT K. DAUSHER

 

 

APPLICATION TO APPEAR AS COUNSEL PRO HAC VICE BY ARIEL W. SCHEPERS

 

 

Ariel W. Scheper’s Application to Appear as Counsel Pro Hac Vice for Defendant Abbot Vascular, Inc. in this matter is GRANTED pursuant to California Rules of Court, Rule 9.40. Counsel has paid the $50 fee to the state bar as required by Rule 9.40(c) and the $500 fee now required by the San Mateo County Superior Court pursuant to Govt. Code 70617.  She has met all of the other requirements of CRC 9.40, which are the only requirements to be eligible for admission pro hac vice. 

 

 

If the tentative ruling is uncontested, 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 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.

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9:00

8

CLJ 209779       MARIA SOSA vs. NATHANIEL BASOLA SOBAYO

 

 

MARIA SOSA                            STEVE LEYDIKER

NATHANIEL BASOLA SOBAYO               PRO/PER

 

 

MOTION TO VACATE VOLUNTARY DISMISSAL FILED BY PLAINTIFF ON 6/29/15 BY NATHANIEL BASOLA SOBAYO

 

 

Defendant Nathaniel Basola Sobayo’s Motion to Vacate Voluntary Dismissal is DENIED. The Court had authority to dismiss this action as the automatic stay in defendant’s bankruptcy had been terminated. See 11 USC §362(c)(2).

 

 

Plaintiff possessed authority to file the dismissal because it was filed prior to actual commencement of trial. CCP §581. The Supreme Court has held the trial includes a hearing on a dispositive motion. Goldtree v. Speckels (1902) 135 Cal 666, 672. The Defendant’s demurrer to the complaint had already been overruled by the court when Plaintiff’s dismissal was filed. Although the Defendant apparently wanted to file a summary judgment motion, his professed intent to file a summary judgment motion does not stand in the way of a dismissal. No dispositive motion was pending at the time of the dismissal.

 

 

If the tentative ruling is uncontested, prevailing 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 Susan Irene Etezadi, Department 18.

 

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9:00

9

CLJ 210946       WINNIFREDA RUIZ VS. DELENA BRADIX

 

 

WINNIFREDA RUIZ                       RICHARD J. PAZIN

DELENA BRADIX                         PRO/PER

 

 

MOTION FOR DISMISSAL OF UNLAWFUL DETAINER COMPLAINT FILED BY DELENA BRADIX

 

 

Defendant Delena Bradix’s unopposed Motion to Dismiss is DENIED without prejudice. The proof of service attached to the motion is defective. It does not state who was served and it does not state the address at which anyone was served. It only provides the address of the person signing the proof of service. Defendant has failed to establish service in compliance with CCP §§1013 and 1013a.

 

 

Additionally, the Motion itself is defective. The motion is unsigned by the defendant. It does not appear to be made under penalty of perjury. Both the notice of motion and the motion itself are combined in one document despite the requirement under CRC 3.112 of a separate notice of motion, a motion and a memorandum of points and authorities. Defendant has not submitted a memorandum of points and authorities. Defendant has cited no statutory or case authority in support of her Motion.

 

 

If the tentative ruling is uncontested, prevailing 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 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.

 

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9:00

10

CLJ 211566       VIRGINIA LOPEZ VS. LORENA GUTIERREZ

 

 

VIRGINIA LOPEZ                        GUADALUPE GAMINO

LORENA GUTIERREZ

 

 

HEARING ON MOTION TO QUASH SERVICE OF SUMMONS ON COMPLAINT (UNLAWFUL DETAINER) FILED BY LORENA GUTIERREZ

 

 

Defendant Lorena Gutierrez’s unopposed Motion to Quash is GRANTED. CCP §1161(2) requires the 3-Day Notice to set forth the name, telephone number and address of the person to whom the rent payment shall be made, and, if payment may be made personally, the usual days and hours that person will be available to receive the payment. The 3-Day notice served here does not set forth the address at which the payment can be made. Instead, it provides only a telephone number to arrange pickup. The notice is technically insufficient under CCP §1161(2) and a deficient notice will not support a cause of action for unlawful detainer. Parsons v.Superior Court (2007) 149 Cal App 4th Supp. 1, 5.

 

 

If the tentative ruling is uncontested, 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 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.

 

_____________________________________________________________________


9:01

11

CLJ 211568   GSP ASSOCIATES, INC. VS. IGNACIO ESTRADA VALENCIA, ET AL.

 

 

GSP ASSOCIATES, INC.                  SUNITA KAPOOR

IGNACIO ESTRADA VALENCIA

 

 

MOTION TO QUASH SERVICE OF SUMMONS ON COMPLAINT (UNLAWFUL DETAINER) FILED BY ISABEL SANDOVAL

 

 

Defendant Isabel Sandoval’s unopposed Motion to Quash is GRANTED.  CCP §1161(2) requires the 3-Day Notice to set forth the name, telephone number and address of the person to whom the rent payment shall be made.  The 3-Day notice served here does not set forth the telephone number of the person to whom rent shall be made, and it overstates the amount of rent that must be paid to prevent termination of tenancy.  The notice is technically insufficient under CCP §1161(2) and a deficient notice will not support a cause of action for unlawful detainer.  Parsons v. Superior Court (2007) 149 Cal App 4th Supp. 1, 5.

 

 

If the tentative ruling is uncontested, prevailing 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 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.

 

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POSTED:  3:00 PM

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