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 25, 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 510631       LAURA BARNER VS. DAVID E. BILLECI

 

 

LAURA BARNER                          JOHN N. FRYE

DAVID E. BILLECI                      MICHAEL A. BRACCO

 

 

MOTION TO AUGMENT PLAINTIFF’S EXPERT WITNESS DISCLOSURE BY LAURA BARNER

 

 

·         Plaintiff's Motion to Augment Expert Witness Disclosure is DENIED. Plaintiff has failed to satisfy the requirements of Code of Civil Procedure § 2034.620(c).  Plaintiff brought a similar motion in January 2014 wherein the Court set forth the deficiencies of Plaintiff's motion.  Plaintiff has waited eight months without attempting to cure those deficiencies and now four days before trial comes this motion.  Defendant will be prejudiced in that he has relied upon the initial expert disclosure and would not have sufficient time to obtain a hip expert to rebut Dr. Sampson’s opinion as well as have Plaintiff attend an IME.

 

·         The fact of the surgery on September 10, 2014 is not sufficient since Dr. Sampson had been involved with Plaintiff for at least ten months.

 

·         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

2

CIV 510933       RI QUIANG HUANG, ET AL. VS. U.S. BANCORP, ET AL.

 

 

RI QUIANG HUANG                       MICHAEL YESK

U.S. BANCORP                          ERIC D. HOUSER

 

 

DEMURRER TO THIRD Amended COMPLAINT of HUANG BY U.S. BANK NATIONAL CORPORATION

 

 

·         This matter is continued to October 24, 2014 at 9:00 a.m. in the Law and Motion department.

 

_____________________________________________________________________

9:00

3

CIV 517190       ELLA ECHOLS VS. SAFEWAY INC., ET AL.

 

 

ELLA ECHOLS                           JUAN M. SIMON

SAFEWAY INC.                          KATHERINE R. MOORE

 

 

MOTION TO BE RELIEVED AS COUNSEL FOR ELLA ECHOLS BY JUAN M. SIMON

 

 

·         Counsel Juan M. Simon’s unopposed Motion to be Relieved as Counsel for Plaintiff Ella Echols is GRANTED pursuant to CCP § 284 and Cal. Rules of Court, Rule 3.1362.  Counsel has filed this motion using the required forms and has provided notice to his client and opposing counsel.

 

·         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

4

CIV 519054       COYOTE CREEK MOBILEHOME COMMUNITY LLC, ET AL. VS.

                   MICHAEL D. MCCRACKEN

 

 

COYOTE CREEK MOBILEHOME COMMUNITY LLC JUDY C. TSAI

MICHAEL D. MCCRACKEN                  JOHN SOMERS BLACKMAN

 

 

MOTION FOR ENTRY OF ORDER/JUDGMENT OF DISMISSAL BY COYOTE CREEK MOBILEHOME COMMUNITY LLC

 

 

·         Plaintiff COYOTE CREEK MOBILEHOME COMMUNITY LLC’s unopposed Motion for Entry of Order/Judgment of Dismissal is GRANTED.  In light of the Court’s July 17, 2014 Order, Plaintiffs’ action is dismissed with prejudice.  

 

·         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

5

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

 

 

TONY CHEN                             JONATHAN B. GASKIN

STANDARD FIBER, LLC                   CYRUS SANAI

 

 

DEMURRER TO CROSS-COMPLAINT of STANDARD FIBER, LLC BY DELLON CHEN

 

 

·         This matter is moot.  Plaintiffs’ Request for Dismissal of the Complaint and Cross-Complaint with prejudice was granted on September 4, 2014.

 

_____________________________________________________________________

9:00

6

CIV 524117       GIOCONDA MARIA EGAN, ET AL. VS. BANK OF AMERICA,

                   NATIONAL ASSOCIATION, ET AL.

 

 

GIOCONDA MARIA EGAN                   PATRICIA RODRIGUEZ

BANK OF AMERICA, N.A.                 ASHLEY E. CALHOUN

 

 

DEMURRER TO SECOND Amended COMPLAINT of EGAN BY BANK OF AMERICA, N.A., BAC HOME LOANS SERVICING, LP, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AND RECONTRUST COMPANY, N.A.

 

 

·         Defendants’ general Demurrer to the Second Amended Complaint is sustained without leave to amend.  Plaintiff has not alleged the essential elements of her sole cause of action for breach of the implied covenant. 

 

·         The Second Amended Complaint fails to allege facts sufficient to establish the existence of a contract between Plaintiff and each of the defendants, Plaintiff’s performance under the contract or excuse for nonperformance, Defendants’ acts that interfered with Plaintiff’s right to receive the benefits of the contract and any resulting harm.  See CACI 325. 

 

·         To the extent Plaintiff is asserting a claim for tortious breach of the implied covenant, she also fails to allege facts to show the existence of a relationship justifying the imposition of tort damages. 

 

·         The special Demurrer for uncertainty is moot given the above ruling.

 

·         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

7

CIV 525641       BERNARD LABADAN VS. AZIZ AHMAD, M.D.

 

 

BERNARD LABADAN                       PRO/PER

AZIZ AHMAD, M.D.                      JOSEPH C. GHARRITY

 

 

MOTION FOR TERMINATING SANCTIONS BY AZIZ AHMAD, M.D.

 

 

·         The Motion for Terminating Sanctions is granted. Plaintiff has not responded to any discovery; he did not oppose the Motion to Compel Discovery Responses; he has not complied with the order commanding him to respond to discovery or to pay the monetary sanction; he has not responded to the present motion.  Plaintiff shows no sign of pursuing the present action.  The Court dismisses Plaintiff’s Complaint with prejudice.

 

·         Defendant’s Motion for Summary Judgment, presently set for October 28, 2014, is ordered off calendar.

 

·         If the tentative ruling is uncontested, it shall become the order of the Court.  Thereafter, counsel for Defendant shall prepare for the Court’s signature a written order consistent with the above ruling, 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

8

CIV 527885       ILYA DRUZHNIKOV, ET AL. VS. CONNECTANDSELL, INC., ET

                   AL.

 

 

ILYA DRUZHNIKOV                       PAUL M. ZIEFF

CONNECTANDSELL, INC.                  CHRISTOPHER SARGENT

 

 

MOTION FOR ENTRY OF PROTECTIVE ORDER BY CONNECTANDSELL, INC., WILLIAM J. "SHAWN" MCLAREN, CHRISTOPHER BEALL, ROGER LANG AND STEPHEN KING

 

 

·         This matter has been continued to October 14, 2014 at 9:00 A.M. in the Law and Motion department to set a further hearing date.  After the court hearing on September 22, 2014, at the urging of the Court, the parties agreed to further meet and confer to determine what documents or portions of the documents might be the subject of an agreed upon protective order.  The parties will be back on other pending motions on October 14, 2014 at which time the Court will set this motion for a hearing date if needed.

 

_____________________________________________________________________

9:00

9

CLJ 209501       U.S. BANK NATIONAL ASSOCIATION  vs. ROLANDO PEJI, et

                   al.

 

 

U.S. BANK NATIONAL ASSOCIATION        ERIC G. FERNANDEZ

ROLANDO PEJI                          REUBEN L. NOCOS

 

 

MOTION FOR SUMMARY JUDGMENT AS TO COMPLAINT (UNLAWFUL DETAINER) of U.S. BANK NATIONAL ASSOCIATION BY EQUITY GROWTH ASSET MANAGEMENT 401K PROFIT SHARING PLAN

 

 

  • Plaintiff’s Request for Judicial Notice is GRANTED pursuant to Evidence Code § 452(b), (d), (h).

 

  • Defendants’ Request for Judicial Notice is GRANTED pursuant to Evidence Code § 452 (d), (h).  Plaintiff’s objection, based on relevance, is overruled.

 

·         Plaintiff's Motion for Summary Judgment is GRANTED.  Plaintiff has initially established the required elements of unlawful detainer under Code of Civil Procedure § 1161a: Plaintiff’s ownership and right to possession through the trustee’s private sale and recordation of the trustee’s deed upon sale; termination of the Defendants’ right to possession pursuant to a 3-day notice to quit [CCP § 1161a] and the defendants’ continuing possession. The burden then shifts to Defendants under CCP § 437c(p)(1) to establish a triable issue of material fact.  Defendants have attempted to create triable issues of fact, but have not done so. Specifically, Defendants attempt to create three triable issues of fact: 

 

1)    Defendants allege that there is a defect in the foreclosure process, namely that the foreclosing beneficiary, U.S. Bank, did not have the proper authority to invoke the power of sale. This is not a disputed material fact for purposes of this unlawful detainer action.  It is a dispute beyond the scope of such an action.  The one issue of title that may be litigated in a post-foreclosure UD proceeding is whether the foreclosing trustee complied with Civil Code § 2924. Vella v. Hudgins (1997) 20 Cal.3d 251, 255. See also Cheney v. Trauzettel (1937) 9 Cal.2d 158 at 159.  Only claims bearing directly on the right to possession are cognizable in a UD proceeding. Green v. Superior Court (1974) 10 Cal.3d 616, 631-634. Further, there is no requirement that an assignment of the beneficial interest in the deed of trust be recorded. See Rossberg v. Bank of America (2013) 219 Cal.App.4th 1481, 1497-98. Because Defendants’ attack falls outside the scope of Civil Code § 2924 and pursuant to Cheney v. Trauzettel (1937) 9 Cal.2d 158, 160, such an attack cannot be litigated in this summary eviction proceeding. Borrowers, such as Defendants here, have no legal grounds to challenge the authority of the person/entity initiating the foreclosure process whether that person is the lender’s nominee or a transferee of the beneficial interest of the deed of trust.  Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1154. So this is not a material fact that Defendants may challenge.

 

2)    Defendants allege that Plaintiff cannot rely on the conclusive presumption of a valid foreclosure sale arising from the recital in the trustee’s deed upon sale and therefore has not met its burden of proving compliance with Civil Code § 2924. This is also not a disputed fact.  Plaintiff clearly stated in its moving papers that the validity of the foreclosure sale is a rebuttable presumption [p. 7, lines 13-20 of Plaintiff’s moving papers]. That shifts the burden to Defendants to provide evidence that the sale somehow violated Civil Code § 2924.  Defendants have not met that burden.  The opposition does not provide any evidence that the foreclosure sale violated Civil Code § 2924.

 

3)    Defendants allege that the motion fails as Plaintiff did not present any evidence on damages.  This is not fatal to the motion.  Plaintiff plainly stated in its moving papers that for the purposes of this motion, they were waiving any claim to any holdover damages. See page 2, lines 27-28 of Plaintiff’s Memorandum of Points and Authorities.  Plaintiff seeks a judgment including only the right to possession of the property.  Any claim for damages has been waived as part of this motion.  See moving papers at page 2, lines 27-28.

 

  • Plaintiff is awarded a judgment for possession only.

 

  • 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.

 

_____________________________________________________________________

9:01

10

CIV 208629       JPMORGAN CHASE BANK, NATIONAL ASSOCIATION VS. HANAN

                   SHIHEIBER

 

 

JPMORGAN CHASE BANK, N.A.             JOHN M. SORICH

HANAN SHIHEIBER                       DICK P. SINDICICH

 

 

MOTION FOR SUMMARY JUDGMENT AS TO COMPLAINT (UNLAWFUL DETAINER)

of JPMORGAN CHASE BANK, NATIONAL ASSOCIATION BY JPMORGAN CHASE BANK, N.A.

 

 

·         Plaintiff JP MORGAN CHASE BANK, N.A.’s Motion for Summary Judgment is GRANTED.  Plaintiff has established the essential elements of its unlawful detainer action:  (1) that the subject property was sold in accordance with Civil Code § 2924 and that title was duly perfected; (2) that the requisite 3-day notice to quit was served on Defendant HANAN SHIHEIBER and (3) Defendant held over and continued in possession for more than three days after the 3-day notice was served.  Code Civ. Proc. § 1161a; Stephens, Partain & Cunningham v. Hollis (1987) 196 Cal.App.3d 948, 952.

 

·         Plaintiff’s Separate Statement establishes that the subject Property was purchased by Defendant on June 4, 2004, and that on September 7, 2007, Plaintiff executed a Deed of Trust (“DOT”) encumbering the property and securing repayment of a loan in the amount of $2,513,000 made by Washington Mutual Bank (“Loan”).  (UMF Nos. 1, 2.)  The DOT contained a power of sale clause that provided for foreclosure of the property upon default by the borrower.  (UMF Nos. 5, 6.)  Plaintiff acquired the loan and DOT from the FDIC after Washington Mutual was placed into receivership.  (UMF No. 7.) 

 

·         The loan was in default by August 2010.  (UMF No. 8.)  A Notice of Default and Election to Sell was recorded on September 28, 2010 and included a Code Civ. Proc. § 2923.5 declaration.  The NOD was served on Defendant.  (UMF Nos. 9-16.)  Defendant failed to cure the default, and a Notice of Trustee’s Sale was subsequently recorded on December 31, 2010.  The Notice of Trustee’s Sale was also served on Defendant.  (UMF Nos. 17, 18.)  Plaintiff acquired ownership of the property by purchasing it at the trustee’s sale conducted on May 16, 2011.  Following the trustee’s sale, Plaintiff perfected its title by recording the Trustee’s Deed Upon Sale on May 23, 2011.  (UMF Nos. 20, 21.) 

 

·         No landlord-tenant relationship exists between Plaintiff and Defendant, and Defendant’s title to and/or right to possession of the property has been extinguished by the trustee’s sale.  (UMF Nos. 22, 23.)  On September 4, 2013, Plaintiff served a 3-day Notice to Quit on Defendant.  Plaintiff also served a Notice to Any Renters on September 4, 2013.  (UMF Nos. 25-27.)  Despite this, Defendant has failed and refused to deliver up possession of the property as required by the Notice and California law.  (UMF No. 28.)

 

·         Plaintiff is granted immediate possession of the premises located at 636 Hurlingham Avenue, San Mateo, California 94402.  The Clerk of the Court is directed to issue a Writ of Possession directing the Sheriff to take all legal steps necessary to remove Defendant HANAN SHIHEIBER and all occupants from the property, pursuant to Code Civ. Proc. § 415.46. 

 

·         Plaintiff’s Request for Judicial Notice is GRANTED as to Exhibits 1-6.  The Request for Judicial Notice as to Exhibit 7 is GRANTED as to Document (a), the online docket for San Mateo County Superior Court Case No. CIV 493254 and GRANTED insofar as the remainder of the documents have been filed in said action, but not as to the truth of any matters asserted therein. 

 

·         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.

 


 

 

In the Superior Court of the State of California

In and for the County of San Mateo

 

Presiding Judge Law and Motion Calendar

Judge: HONORABLE ROBERT D FOILES

Department 21

 

400 County Center, Redwood City

Courtroom 2J

 

SEPTEMBER 25, 2014

 

If you plan to appear on any case on this calendar,

 you must call (650) 261-5121 before 4:00 p.m. and you must give notice also before 4:00 p.m. to all parties of your intent to appear pursuant to California Rules of Court 3.1308(a)(1).

 

Case                   Title / Nature of Case

9:00

1

CIV 201005       DAVID AVIEL VS. SCOTT DUCHIN

 

 

DAVID AVIEL                           JAMES D. FRANGOS

SCOTT DUCHIN                          CRAIG HARRIS COLLINS

 

 

MOTION FOR ORDER ADVANCING TRIAL DATE OR SPECIALLY SETTING CASE FOR TRIAL TO AVOID STATUTORY DEADLINE BY SCOTT DUCHIN

 

 

·         Appear.  

 


 

In the Superior Court of the State of California

In and for the County of San Mateo

 

WRITS AND RECEIVERS CALENDAR

Judge: Honorable JOSEPH C. SCOTT

Department 25

 

400 County Center, Redwood City

Courtroom 2L

 

SEPTEMBER 25, 2014

 

If you plan to appear on any case on this calendar,

 you must call (650) 261-5125 before 4:00 p.m. and you must give notice also before 4:00 p.m. to all parties of your intent to appear pursuant to California Rules of Court 3.1308(a)(1).

 

Case                  Title / Nature of Case

2:00

1

CIV 527260       GOAHEAD SOLUTIONS, LLC VS. TARIM CONSULTING, LLC, ET

                   AL.

 

 

GOAHEAD SOLUTIONS LLC                 JL SEAN SLATTERY

TARIM CONSULTING, LLC                 CHARLES M. LOUDERBACK

 

 

MOTION TO FILE PORTIONS OF ITS PRELIMINARY INJUNCTION MOTION UNDER SEAL BY GOAHEAD SOLUTIONS, LLC

 

 

·         Off Calendar at the request of the parties.    

 

 

MOTION FOR PRELIMINARY INJUNCTION BY GOAHEAD SOLUTIONS, LLC

 

 

·         Off Calendar at the request of the parties.    

 

_____________________________________________________________________

2:00

2

CIV 529755       MARCHIS' CENTRAL FARM, ET AL. VS. MARTHA FRAZIER, ET

                   AL.

 

 

MARCHIS' CENTRAL FARM                 WILLIAM A. BAULD

MARTHA FRAZIER

 

 

MOTION FOR APPOINTMENT OF RECEIVER AND ATTACHMENT BY MARCHIS' CENTRAL FARM, MARCHI MANAGEMENT SERVICES, INC., PETER MARCHI AND GERALD MARCHI

 

 

·         This matter is continued to October 9, 2014 at 2:00 P.M. on the Writs and Receivers calendar, pursuant to the Stipulation and Order to Continue Hearing Date filed on September 24, 2014.    

 

_____________________________________________________________________

2:00

3

CIV 526688       EAST WEST BANK VS. FRANCESCO CARRUBBA, ET AL.

 

 

EAST WEST BANK                        MELISSA S. LOR

FRANCESCO CARRUBBA

 

 

MOTION FOR ORDER APPROVING RECEIVER'S FINAL ACCOUNT AND

REPORT AND APPLICATION TO FIX FEES OF RECEIVER, DISCHARGE RECEIVER AND EXONERATE RECEIVER’S AND PLAINTIFF’S BONDS BY KENNETH A. KRASNE

 

 

·         GRANTED.  The Receiver’s final report is approved as are the acts, expenditures and fees of the Receiver.  The bond of the Receiver is exonerated, and the Receiver is discharged.

 

·         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 Joseph C. Scott, Department 25.

 


 

 

 


POSTED:  3:19 PM

 

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