May 6, 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 JOSEPH C. SCOTT

Department 25

 

400 County Center, Redwood City

Courtroom 2G

 

Thursday, April 30, 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.

 

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 440930       MIKE ROSEN, ET AL. VS. LEGACY QUEST, ET AL.

 

 

MIKE ROSEN                            PRO/PER

LEGACY QUEST                          BRADLEY KASS

 

 

MOTION TO STRIKE AND/OR TAX COSTS BY Ruo Hui Chen AND Nikii Menasco

 

 

  • The Rosen request for Judicial Notice is GRANTED.

 

  • Third Party Claimant Xiao Yan Chen’s Motion to Strike and/or Tax Costs is DENIED. (See, Exch. Nat. Bank of Tulsa v. Ransom (1942) 52 Cal. App. 2d 544, Maguire v. Corbett (1953)119 Cal. App. 2d 244). CCP §1032(a) defines "defendant" as including "a person against whom a complaint is filed".  CCP §720.350 provides that the third-party claim constitutes the pleading of the third person. CCP §1032(a)(4) defines "prevailing party" to include: “a defendant in whose favor a dismissal is entered”.  In this matter Xiao Yan Chen withdrew (dismissed) her third party claim relating to Rosen collection efforts, which is analogous to dismissing a lawsuit, resulting in the Rosens prevailing.

 

  • 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 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 Joseph C Scott, Department 25.

 

_____________________________________________________________________


9:00

2

CIV 524797       ARCHIE S. YAYMAIAN VS. NUVIEW FINANCIAL SERVICE LLC

 

 

ARCHIE S. YAYMAIAN                    SARAH ADELAARS

NUVIEW FINANCIAL SERVICES, LLC        T. ROBERT FINLAY

 

 

MOTION TO CONSOLIDATE CASES BY NUVIEW FINANCIAL SERVICES, LLC AND BSI

FINANCIAL SERVICES, INC.

 

 

·         Off calendar.  Notice of conditional settlement filed 4/27/15.

 

 

_____________________________________________________________________


9:00

3

CIV 525696       KIYOMI ISHII VS. RESIDENTIAL MORTGAGE CAPITAL, ET AL.

 

 

KIYOMI ISHII                          MARK W. LAPHAM

RESIDENTIAL MORTGAGE CAPITAL

 

 

DEMURRER TO 2nd Amended COMPLAINT of KIYOMI ISHII BY S. BANK NATIONAL ASSOCIATION AS TRUSTEE FOR SECURITIZED TRUST LEHMAN XS TRUST, SERIES 2007- 15N, AURORA LOAN SERVICES, LLC, predecessor by merger to NATIONSTAR MORTGAGE LLC, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC, sued herein as MORTGAGE ELECTRONIC REGISTRATION SYSTEM AKA "MERS"; and NATIONSTAR MORTGAGE LLC, sued herein as NATIONSTAR MORTGAGE

 

 

·         Moot.  Dismissal of Entire Action was filed on April 23, 2015.

 

_____________________________________________________________________


9:00

4

CIV 526203       VLADIMIR G. LAZARO VS. MARIQUIT G. LAZARO, ET AL.

 

 

VLADIMIR G. LAZARO                    EDWARD W. SUMAN

MARIQUIT G. LAZARO                    JEFFREY P. WOO

 

 

MOTION FOR CONTINUANCE OF ACTION BY PERSONAL REPRESENTATIVE OF PLAINTIFF'S ESTATE

 

 

·         The request by the San Mateo County Public Administrator that the court take Judicial Notice is GRANTED pursuant to Evidence Code §452(d), (h).

 

·         The unopposed Motion by the San Mateo County Public Administrator for an Order Substituting the San Mateo County Public Administrator as Personal Representative in place of decedent Vladimir Lazaro, to add the San Mateo County Public Administrator as Plaintiff is GRANTED pursuant to CCP §377.31.

 

·         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.

 

_____________________________________________________________________


9:00

5

CIV 526557       KELLY ZEYTOONIAN VS. BAYHILL EQUINE, INC., ET AL.

 

 

KELLY ZEYTOONIAN                      JASON S. LOHR

BAYHILL EQUINE, INC.,                 STEVEN L. FRIEDLANDER

 

 

MOTION FOR SUMMARY ADJUDICATION OF ISSUES BY BAYHILL EQUINE, INC. AND WAYNE BROWNING

 

 

·         The Evidentiary Objection by Plaintiff to the Nielsen Declaration is OVERRULED.

 

·         The Evidentiary Objections by Defendant are OVERRULED as to Nos. 1 – 3.

 

·         The Motion for Summary Adjudication of the Complaint as to the First Cause of Action (Breach of Contract) and Second Cause of Action (Breach of the Implied Covenant of Good Faith and Fair Dealing) is DENIED. The Court finds that there are triable issues of material fact concerning the meaning of the subject contract and the intent of the parties in entering into the contract. (UMF’s Nos 5, 6 & 9; and the Opposition thereto)

 

·         The Motion for Summary Adjudication of the Complaint as to the Sixth Cause of Action (Defamation) and Seventh Cause of Action (Intentional Interference with Prospective Economic Advantage) is DENIED. There are triable issues of material fact as to whether Mr. Browning’s conduct/statements constitutes defamation or intentional interference with prospective economic advantage (See UMF’s Nos. 19, 21 & 22; and the Opposition thereto)

 

·         The Motion for Summary Judgment/Adjudication as to the Cross-complaint is DENIED. There are three causes of action in the Cross-complaint and the Notice of Motion fails to specify any specific causes of action to be addressed in the Motion as is required by California Rules of Court, Rule 3.1350(b)

 

·         The Motion is also DENIED on its merits. Triable issues of material fact were raised regarding the amount of the overpayment, and the issues as to the accuracy of the underlying figures to determine the amount. (See UMF’s Nos. 29, 32, 36, 38, 40 and 42; and, the Oppositions thereto).

 

·         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 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.

 

_____________________________________________________________________


9:00

6

CIV 528701       BENJAMIN PUENTES VS. COUNTYWIDE HOME LOANS INC., ET

                   AL.

 

 

BENJAMIN PUENTES                      JAMIE EDWARDS QUADRA

WELLS FARGO, N.A.                     KENNETH A. FRANKLIN

 

 

DEMURRER TO 1st Amended COMPLAINT of BENJAMIN PUENTES BY WELLS FARGO, N.A.

 

 

  • The Demurrer to First Amended Complaint brought by Defendant WELLS FARGO BANK, N.A. is SUSTAINED WITHOUT LEAVE TO AMEND as to Plaintiff’s sole cause of action for negligence. 

 

  • Plaintiff has had two opportunities to plead facts demonstrating this cause of action is not barred by the statute of limitations and failed to do so. Plaintiff failed to plead facts demonstrating that Wells Fargo had a duty of care to Plaintiff, and Plaintiff failed to allege facts demonstrating that Wells Fargo breach such duty. 

 

  • Although a Demurrer should not be sustained without leave to amend if there is a reasonable possibility that a defect in the complaint can be cured by amendment, the burden is on the plaintiff to show in what manner she can amend the complaint and how that amendment will affect the pleading.  [Goodman v. Kennedy (1976) 18 Cal.3d 335, 349].  Plaintiff’s proposed amendments offered in his Opposition do not cure the defects noted above. 

 

  • Defendant’s Request for Judicial Notice is GRANTED.

 

  • 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 Joseph C. Scott, Department 25.

 

_____________________________________________________________________


 

9:00

7

CIV 529240       CACH, LLC. VS. WARREN A. SATTLER

 

 

CACH, LLC.                            NADER SABAWI

WARREN A. SATTLER                     IAN CHOWDHURY

 

 

MOTION TO COMPEL FURTHER RESPONSES AND PRODUCTION OF DOCUMENTS BY WARREN A. SATTLER

 

 

·         The Motion is GRANTED in part.

    

·         The Agreement is directly relevant to the subject matter of this action and to the issue of Plaintiff’s standing to enforce the alleged debt. Plaintiff sufficiently describes matter contained in the document that likely constitutes trade secret material. (Declaration of Livits ¶¶ 6-9.)  Further, the amount Plaintiff paid to acquire Defendant’s debt is not relevant. Therefore, Plaintiff shall produce the Agreement, but may redact portions of it narrowly and precisely to omit only (1) the amount of Plaintiff’s bid for the debt portfolio, (2) the method by which Plaintiff calculated its bid, (3) expected performance of the portfolio, (4) the value of the portfolio, and (5) the price paid for the portfolio.  This order is without prejudice to Defendant’s right to challenge the redactions as overbroad.

 

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

 

_____________________________________________________________________


9:00

8

CLJ 509332       ASSET ACCEPTANCE LLC VS. TERESA A. FLORES

 

 

ASSET ACCEPTANCE LLC                  HARVEY M. MOORE

TERESA A FLORES

 

 

MOTION TO (1) SET ASIDE NOTICE OF SETTLEMENT & (2) ENTER JUDGMENT PURSUANT TO STIPULATION BY ASSET ACCEPTANCE LLC

 

 

·         Plaintiff’s unopposed Motion to Set Aside Notice of Settlement and Enter Judgment is GRANTED pursuant to CCP §664.6 and the stipulated settlement agreement entered into by the parties entered into on January 3, 2012.

 

·         Judgment is entered for Plaintiff Asset Acceptance, LLC in the principal amount of $5479.71, plus pre-judgment interest in the amount of $1673.65, attorney’s fees in the amount of $533.58 and court costs of $355. The total judgment is in the amount of $8041.94 less a credit for all payments received. Defendant made payments totaling $2400 leaving a balance due of $5641.94.

 

·         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.

 

_____________________________________________________________________


9:00

9

CLJ 527058       UNIFUND CCR, LLC VS. PEGGY CREWS

 

 

UNIFUND CCR LLC                       KENNETH J. MIELE

PEGGY CREWS                           PRO/PER

 

 

MOTION FOR JUDGMENT ON THE PLEADINGS AND REQUEST FOR JUDICIAL NOTICE BY UNIFUND CCR, LLC

 

 

·         The Request for Judicial Notice by Plaintiff Unifund CCR, LLC is GRANTED pursuant to Evidence Code 452(c), (d).

 

·         The unopposed Motion for Judgment on the Pleadings by Plaintiff Unifund CCR, LLC is GRANTED pursuant to CCP § 438(c)(1)(A).  Judgment for Plaintiff is entered in the principal amount of $7,871.38, prejudgment interest in the amount of $2827.23, attorney’s fees in the amount of $562.00 and costs of suit in the amount of $475.00. The total judgment is $11,736.11.

 

·         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:  3:00 PM


 

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 GEORGE A. MIRAM

Department 28

 

400 County Center, Redwood City

Courtroom 2F

 

Thursday, April 30, 2015

 

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

9:00

1

CIV 516550       IAR SYSTEMS SOFTWARE, INC. VS. NADIM SHEHAYED, ET AL.

 

 

IAR SYSTEMS SOFTWARE, INC.            ANTONIO VALLA

NADIM SHEHAYED                        JEFFREY M. CURTISS

 

 

MOTION TO CONTINUE TRIAL DATE TO PERMIT UNFINISHED DISCOVERY FROM PRICE WATERHOUSE COOPERS LLP AND FROM PLAINTIFF IAR SYSTEM SOFTWARE, INC. BY NADIM SHEHAYED AND NADINE ABOU-HAIDAR

 

 

·         GRANTED for good cause shown.  Appear for new trial date with calendars regarding available firm trial dates.

 

_____________________________________________________________________


9:00

2

CIV 528251       DAVID LACAGNINA VS. COMPREHEND SYSTEMS, INC. ET AL.

 

 

DAVID LACAGNINA                       STEPHEN F. HENRY

COMPREHEND SYSTEMS INC.               MICHAEL A. LAURENSON

 

 

MOTION TO CONTINUE TRIAL DATE BY DAVID LACAGNINA

 

 

·         DENIED.  Inadequate demonstration of good cause.

 

 

_____________________________________________________________________


 

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, April 30, 2015

 

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 531406       RICHARD S. WRIGHT, ET AL. VS. ASSESSMENT APPEALS

                   BOARD, ET AL.

 

 

RICHARD S. WRIGHT                     CHARLES H. RIBLE

ASSESSMENT APPEALS BOARD              JOHN C. BEIERS

 

 

DEMURRER TO 1st Amended PETITION of WRIGHT BY ASSESSMENT APPEALS BOARD AND COUNTY OF SAN MATEO

 

 

·         The Respondent’s request for Judicial Notice is granted pursuant to Evidence Code section 452(h).

 

·         The Demurrer is SUSTAINED without leave to amend. A remedy at law exists in the form of a taxpayer’s suit under Revenue and Taxation Code section 5141(a) and (c). see Opposition to Demurrer, p. 7, lines 21-23.  Under CCP 1094.5 this Court can only determine whether the Assessment Appeals Board proceeded in excess of jurisdiction, afforded petitioner a fair hearing or prejudicially abused its discretion.  Hashalom v. City of Santa Monica (2010) 190 Cal App 4th 375, 380-381. The writ petition identifies no action by which the Assessment Appeals Board violated these parameters. (See page 3, lines 9-11)

   _____________________________________________________________________

 

 

 

 

 

 


POSTED:  3:20 PM

 

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