May 25, 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

 

Thursday, May 19, 2016

 

NOTICE TO ALL COUNSEL

 

Until further order of the Court, no endorsed-filed “courtesy copy” of pleadings is required to be provided to the Law and Motion Department.

 

 

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 528860       ROSEMARY N. CHUKWUDEBE VS. CHRISTOPHER PIRRONE

 

 

ROSEMARY N. CHUDWUDEBE                PRO/PER

CHRISTOPHER PIRRONE                   CHRISTOPHER PIRRONE

 

MOTION FOR TERMINATING SANCTIONS OR CONTEMPT AGAINST ROSEMARY N. CHUKWUDEBE BY A.O.E. LAW ASSOCIATES, INC.

 

 

MOTION FOR TERMINATING SANCTIONS OR CONTEMPT AGAINST ROSEMARY N. CHUKWUDEBE BY STEVE S GOHARI, ET AL.

 

 

The Court is in receipt of filings by Plaintiff and Defendants AOE Law & Associates, APC, indicating that plaintiff’s appeal (from non-appealable orders) has been dismissed by the Court of Appeal. Accordingly, the Court’s orders made Janu ary 13, 2016, continuing the Motion to Compel; ordering the parties to meet and confer in good faith to arrange for and accomplish the taking of Plaintiff’s deposition by a date certain; taking Plaintiff’s Motion for Summary Judgment off calendar and to be re-noticed after deposition are still extant.

 

By letter dated May 16, 2016, Plaintiff has initiated the meet and confer process. The parties shall agree upon and set a date for Plaintiff’s deposition and then complete the deposition on or before June 11, 2016. The Motion for Sanctions or Contempt is continued to June 16, 2016; if Plaintiff’s deposition is accomplished within the proscribed period said motion will be taken off calendar.

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.

 

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9:00

2

CIV 535450       MATTHEW MURPHY, ET AL. VS. TANYA MARCELINO

 

 

MATTHEW MURPHY                        AMANDA L. EBEY

TANYA MARCELINO                       ROLAND THE

 

 

DEMURRER TO COMPLAINT of MURPHY BY TANYA MARCELINO

 

By agreement of the parties, as set forth in the declaration of counsel for Defendant filed May 10, 2016, the matter is off calendar.

_____________________________________________________________________


9:00

3

CIV 535928       EVE SUTTON, ET AL. VS. HSBC BANK USA, ET AL.

 

 

EVE SUTTON                             GLENN L. MOSS

HSBC BANK USA                         TORIANA S. HOLMES

 

 

DEMURRER TO First Amended COMPLAINT of SUTTON BY WELLS FARGO BANK, N.A., ET AL.

 

The Court admonishes Defendants’ counsel Mark Lonergan, Thomas Abbott, and the law firm of Severson & Werson for violating CRC Rules 3.1113(f) [memorandum exceeding 10 pages must include table of contents and table of authorities] and 3.1110(f) (requiring hard tabs between exhibits) regarding the Request for Judicial Notice, which includes ten exhibits across 100 pages.  Counsel is directed to comply with all Rules of Court in all future filings.

 

Demurrer to the first cause of action is SUSTAINED WITH LEAVE TO AMEND. Plaintiff alleges that the loss of her home was caused by Defendants Wells Fargo and HSBC foreclosing at a time when Defendants Wells Fargo and HSBC were required by law to offer her a permanent loan modification. The allegations of loss and causation, if true, sufficiently allege loss of property to confer standing. The complaint, however, fails to allege any unfair, unlawful, or fraudulent acts as a basis for the cause of action for unfair business practices. The case law cited by the Plaintiff does not stand for the proposition that failing to comply with HAMP directives and guidelines constitutes unlawful, fraudulent, or unfair conduct under the meaning of Business & Professions Code sections 17200 et seq. Violating the HAMP by failing to offer a permanent loan modification could, under certain facts, give rise to a cause of action for breach of contract. (See West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal. App. 4th 780, 792-95.) However, the allegations of the first cause of action do not describe a situation similar to the plaintiff in West. Further, Plaintiff does not allege what statements Defendants made that were likely to mislead her or a member of the public.

 

Demurrer to the second cause of action is SUSTAINED WITHOUT LEAVE TO AMEND. The judicially noticeable matter in support of demurrer demonstrates a prima facie valid substitution of trustee naming First American. Notice of Default need not be recorded by the actual trustee, but may be recorded by an “authorized agent” of the trustee. (Civ. Code § 2924(a)(1).) Because she does not allege facts establishing that a technical defect in the foreclosure documents has caused her any harm, this claim fails. Plaintiff offers no opposition to the demurrer and offers no showing how the pleading defects can be cured.

 

Demurrer to the third cause of action is SUSTAINED WITHOUT LEAVE TO AMEND. Because the Complaint fails to plead an ineffective substitution of trustee, the complaint fails to allege any violation of Civil Code section 2924(a)(6). The complaint fails to allege that Plaintiff submitted a completed loan modification package. Further, it fails to allege that Plaintiff submitted a loan modification application after the effective date of the Homeowners Bill of Rights in 2013. Plaintiff offers no opposition to the demurrer and offers no showing how the pleading defects can be cured.

 

Demurrer to the Fifth Cause of Action is SUSTAINED WITHOUT LEAVE TO AMEND. As with the original complaint, the First Amended Complaint fails to identify any section of the FDCPA or the Rosenthal Act that Defendant HSBC allegedly violated.  Further, mortgage lenders and servicing companies are not “debt collectors” under the federal or state Acts. (Lal v. Am. Home Servicing, Inc. (E.D. Cal. 2010) 680 F. Supp.2d. 1218, 1224; Pfeifer v. Countrywide Home Loans, Inc. (2012) 211 Cal.App.4th 1250, 1261-64.)”  Plaintiff offers no opposition to the demurrer and offers no showing how the pleading defects can be cured.

 

Plaintiff is granted leave of court until June 2, 2016, to file an amended pleading addressing only the first cause of action. Leave to amend is not granted as to any other cause of action.

      

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, Defendant 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 STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT BY WELLS FARGO BANK, N.A, ET AL.

 

Defendants’ demurrer being sustained as to all causes of action, Defendants’ motion to strike is MOOT.

 

_____________________________________________________________________


9:00

4

CIV 536879       JO ANNE THOMPSON, ET AL. VS. JPMORGAN CHASE N.A.

 

 

JO ANNE THOMPSON                      PRO/PER

JPMORGAN CHASE N.A.                    JOHN D. FREED

 

 

DEMURRER TO COMPLAINT of THOMPSON BY JPMORGAN CHASE N.A.

 

 

Defendant JP MORGAN CHASE BANK, N.A.’s Demurrer to Complaint is SUSTAINED, as follows:

 

SUSTAINED WITH LEAVE TO AMEND as to Plaintiffs’ cause of action for breach of contract.  Plaintiffs have not pled a specific contract, contractual terms, or promises that have allegedly been breached.  Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 830.  The Complaint is unclear as to what contract or contractual terms Plaintiffs are alleging were breached.  There is no contract attached to the Complaint.

 

SUSTAINED WITH LEAVE TO AMEND as to Plaintiffs’ cause of action for fraud.  The cause of action does not meet the strict requirements of particularity in pleading fraud.  Hill Transportation Co. v. Southwest Forest Industries, Inc. (1968) 266 Cal.App.2d 702, 707.  The elements of fraud must be factually and specifically pleaded.  Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.  It necessitates the pleading of facts showing how, when, where, to whom and by what means the representations were tendered.  Stansfield, supra at 73.  Here, Plaintiffs have wholly failed to plead any allegations at all, let alone with factual specificity of any fraud by Defendant Chase.

 

Plaintiffs shall file an amended Complaint no later than May 20, 2016. 

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.

 

____________________________________________________________________________

 

 

 

 

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 SUSAN IRENE ETEZADI

Department 18

 

400 County Center, Redwood City

Courtroom 2H

 

Thursday, May 19, 2016

 

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

 you must call (650) 261-5111 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 534226       DIANE LOPEZ VS. YEKTA RAFATY, D.D.S.

 

 

DIANE LOPEZ                           TODD S. OSBORNE

YEKTA RAFATY D.D.S.                   DANE T. JONES

 

 

MOTION TO BIFURCATE TRIAL ON ISSUE OF STATUTE OF LIMITATIONS BY YEKTA RAFATY D.D.S.

 

 

Defendant’s Motion to Bifurcate Trial on Issue of Statute of Limitations pursuant to Code Of Civil Procedure Section 597.5 is DENIED without prejudice to bring before the trial department.

 

_____________________________________________________________________


9:00

2

CIV 537348       JOSE CORDERO VS. TODD STEVEN ANHALT

 

 

JOSE CORDERO                          ARA JABAGCHOURIAN

TODD STEVEN ANHALT                    MELANIE D. JOHNSON

 

 

MOTION FOR TRIAL PREFERENCE BY JOSE CORDERO

 

Plaintiff’s Motion for Trial Preference is DENIED. Plaintiff has not provided competent evidence that he is 70 years of age or older. An attorney’s affidavit is not sufficient. Weil& Brown section 12:247.3

 

CCP section 36.5 permits an attorney’s affidavit as to the medical diagnosis and prognosis of a party. However, the statute does not authorize an attorney’s declaration as to the age of the party.

 

Furthermore, the evidence of Plaintiff’s medical condition is insufficient to warrant preference.

 

 

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9:00

3

CIV 537817       AARON P BECK VS. APIGEE CORPORATION, ET AL.

 

 

AARON P. BECK                         SHAWN A. WILLIAMS

APIGEE CORPORATION                    IGNACIO E. SALCEDA

 

 

COMPLEX CASE STATUS CONFERENCE

 

 

·         This matter is deemed and designated complex, and is assigned to Judge Marie Weiner, Department 2, for all purposes.  The parties should contact Judge Weiner’s department at 650.261.5102 in order to obtain their next appearance date in the case.

 

 

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In the Superior Court of the State of California

In and for the County of San Mateo

 

WRITS AND RECEIVERS CALENDAR

Judge: Honorable GEORGE A. MIRAM

Department 28

 

400 County Center, Redwood City

Courtroom 2F

 

Thursday, May 19, 2016

 

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

 you must call (650) 261-5128 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 536995       CHRISTINA PLASCENCIA VS. DIRECTOR OF THE DEPARTMENT

                   OF MOTOR VEHICLES, STATE OF CALIFORNIA

 

 

CHRISTINA PLASCENCIA                  JONATHAN D. McDOUGALL

DIRECTOR OF THE DMV, STATE OF CA      WILLIAM J. McMAHON

 

 

PETITION FOR WRIT OF MANDATE BY CHRISTINA PLASCENCIA

 

 

·         DENIED.  The decision of the hearing officer comes before this court with a strong presumption of correctness, and petitioner bears the burden of convincing the court that the decision is contrary to the weight of the evidence.  Fukuda v City of Angels (1999) 20 Cal 4th 805, 817. The determination of credibility is within the province of the hearing officer. The prior inconsistent statement of the petitioner’s boyfriend was properly admitted as evidence in the proceeding.  The court exercises its Independent Judgment in this matter and finds the evidence  supports the DMV’s findings.

 

_____________________________________________________________________

2:00

2

CIV 538332       HAMLIN COMPANY & ASSOCIATES, LLC VS. BERNARDINO

                   NUNEZ, ET AL.

 

 

HAMLIN COMPANY & ASSOCIATES, LLC      PAUL T. JENSEN

BERNARDINO NUNEZ

 

 

PETITION FOR PRELIMINARY INJUNCTION BY HAMLIN COMPANY & ASSOCIATES, LLC DBA TREASURE ISLAND MOBILEHOME AND RV PARK

 

 

·         DENIED.  There is insufficient evidence provided of a great or irreparable harm from the violations demonstrated by the evidence submitted to support a Preliminary Injunction.  See CCP 798.88(b). Further, the violations appear to have been ongoing for as much as fifteen years. The request to produce oral testimony at the hearing on the Preliminary Injunction is denied.  There is no reason such evidence could not be produced in documentary form in support of the Preliminary Injunction.

 

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2:00

3

CIV 535981       ANDREW KOTVAL VS. DEPARTMENT OF MOTOR VEHICLES

 

 

ANDREW KOTVAL                         MARSANNE WEESE

DEPARTMENT OF MOTOR VEHICLES

 

 

PETITION FOR WRIT OF MANDATE BY ANDREW KOTVAL

 

 

·         Off calendar.

 

 


 

 

 


POSTED:  3:00 PM

 

 

 

 

 

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