In the Superior Court of the State of California In and for the County of San Mateo   Law and Motion Calendar Judge: Honorable JOSEPH E. BERGERON Department 4   400 County Center, Redwood City Courtroom 2B   June 13, 2013

 

If you plan to appear on any case on this calendar,  you must call (650) 363-1882 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 491316    CALVIN S. ROBINSON VS. EMPLOYMENT DEVELOPMENT DEPARTMENT

 

 

CALVIN S. ROBINSON                              PRO/PER

EMPLOYMENT DEVELOPMENT DEPARTMENT

 

 

MOTION TO DISMISS ACTION BY EMPLOYMENT DEVELOPMENT DEPARTMENT

 

 

·         The Respondent, California Unemployment Insurance Appeals Board’s, Motion to Dismiss Action is GRANTED pursuant to CCP § 583.250.  

 

·         The Petitioner, Calvin S. Robinson, has failed to properly serve Respondent with a summons and complaint and has not made a general appearance in this case in more than three years. 

 

 

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2

CIV 495259    EUN Y. KIM, ET AL. VS. YONG RYE KIM

 

 

EUN Y. KIM                                      JORDAN S. STANZLER

YONG RYE KIM                                    ANDREW DIMITRIOU

 

 

MOTION TO BE RELIEVED AS COUNSEL FILED BY EUN Y. KIM, HYONG UK KIM

 

 

·         Counsel Tae W. Oh and the Stanzler Law Group’s unopposed  Motion to be Relieved as Counsel for plaintiffs Eun Kim and Hyong Kim 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 his client as well as to defendants’ counsel. 

 

 

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3

CIV 502248    MARITZA ALFARO VS. MARIX SERVICING, LLC, ET AL.

 

 

MARITZA ALFARO                                  ROBERT D. RODRIGUEZ

MARIX SERVICING, LLC                            JOHN LOGAN

 

 

MOTION FOR LEAVE TO FILE AMENDED COMPLAINT FILED BY MARITZA ALFARO

 

 

·         Case dismissed. 

 

 

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4

CIV 506368    EDWARD ORO, ET AL. VS. WASHINGTON MUTUAL BANK, F.A., ET AL.

 

 

EDWARD ORO                                      STEVAN J. HENRIOULLE

WASHINGTON MUTUAL BANK, F.A.

 

 

MOTION TO STRIKE PORTIONS OF PLAINTIFFS' THIRD AMENDED COMPLAINT BY JP MORGAN CHASE BANK, N.A., CALIFORNIA RECONVEYANCE COMPANY, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.

 

 

·         The Plaintiff’s Motion to Strike is GRANTED.  The Plaintiff’s cause of action for Breach of Contract, for which a demurrer was already sustained without leave to amend, is stricken from their third amended complaint. 

 

·         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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5

CIV 512144    MELE UPERESA VS. BANK OF AMERICA, N.A., ET AL.

 

 

MELE UPERESA                                    JAMIL L. WHITE

BANK OF AMERICA, N.A.                           GEORGE H. KELLER

 

DEMURRER TO 2nd Amended COMPLAINT of UPERESA BY BANK OF AMERICA, N.A.

 

·         Defendant Bank of America’s Request for Judicial Notice is GRANTED pursuant to Evidence Code §452(c), (d), (h). 

 

·         The court rules as follows on Defendant Bank of America’s Demurrer to Plaintiff’s 2nd Amended Complaint:

 

·         2nd Cause of Action –Elder Financial Abuse:

 

·         Defendant’s demurrer Plaintiff’s 2nd Amended Complaint is SUSTAINED without leave to amend.  Plaintiff’s claim fails since they do not plead any facts to show that Defendant took, appropriated or obtained property from Plaintiff.  Plaintiff fails to identify anyone from Bank of America to whom specific malicious intent might be attributed.  Plaintiff has failed to allege any wrongful use or intent to defraud as required for a cause of action for financial abuse of an elder.  W&I Code 15610.30(a).  

 

·         3rd Cause of Action – Breach of Fiduciary Duty:

 

·         MOOT.  This cause of action is not asserted against defendant Bank of America in the second amended complaint. 

 

·         4th Cause of Action – Breach of covenant of Good Faith:

 

·         Defendant’s demurrer Plaintiff’s 2nd Amended Complaint is SUSTAINED without leave to amend.  Plaintiff has failed to allege any claims or actions outside of defendant's role as servicer of the loan and has made no claim that defendant violated any express term of the contract, namely, the deed of trust.  

 

·         6th Cause of Action – Wrongful Foreclosure:

 

·         The Defendant’s demurrer Plaintiff’s 2nd Amended Complaint is SUSTAINED without leave to amend.  Plaintiff has failed to allege a tender and therefore has no standing to challenge the foreclosure.  Abdallah v. United Savings Bank (1996) 43 Cal App 4th 1101, 1110.  Further, plaintiff has alleged no violation of Civil Code 2924 et seq.   

 

·         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 Joseph E. Bergeron, Department 4. 

 

 

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6

CIV 513749    JESSICA ARBULU VS. DEUTSCHE BANK NATIONAL TRUST, ET AL.

 

 

JESSICA ARBULU                                  HAKOP KESHISHYAN

DEUTSCHE BANK NATIONAL TRUST                    JOSHUA D. WATTS

 

 

DEMURRER TO 2nd Amended COMPLAINT of ARBULU BY DEUTSCHE BANK NATIONAL TRUST, OCWEN LOAN SERVICING, LLC

 

 

·         The Defendants’ DEMURRER TO 2nd Amended COMPLAINT of ARBULU BY DEUTSCHE BANK NATIONAL TRUST, to the entire complaint is SUSTAINED.  All causes of action arise from allegations of wrongdoing that pertained to inducing Plaintiff to enter into an adjustable rate mortgage, when she allegedly believed she was entering into a 30-year fixed rate mortgage.  The language in the Note and Deed of Trust is not dispositive, because those documents show only the possibility that Plaintiff’s interest rate could change after 24 months.  However, the complaint alleges that Plaintiff was damaged by “increased rates and monthly payments after the fixed introductory period.”  (2nd Am. Comp. ¶ 59.)  Plaintiff alleges that the introductory period was the first 24 months.  (Id. ¶ 30(a).)  Thus, the complaint alleges that Plaintiff began making increased monthly payments at the end of 24 months, or in July 2005.  The complaint, filed in May 2012, appears time-barred under the three- and two- year statutes of limitations for all claims.  

 

·         In addition, the demurrer is SUSTAINED as to the 1st and 2nd causes of action (fraud and negligent misrepresentation).  The complaint alleges no wrongdoing by Defendants Deutsche Bank, but alleges only that Deutsche Bank should be held liable as the assignee of the Deed of Trust.  The complaint, however, alleges no facts supporting the legal conclusion that Deutsche Bank was assigned the liabilities of New Century when it was assigned the Deed of Trust.  

 

·         Plaintiff shall have leave of court until June 27, 2013, to file and serve a Third Amended Complaint, as to Defendant Deutsche Bank only, addressing the above deficiencies.  

 

·         The unopposed demurrer of Defendant Ocwen Loan Servicing, LLC is SUSTAINED WITHOUT leave to amend.  The pleading contains no allegations imposing liability on this defendant.  Plaintiff’s Opposition offers no argument about how the Complaint could be amended to state any cause of action against this Defendant.  

 

·         If the tentative ruling is uncontested, it shall become the order of the Court.  Thereafter, Defendants 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 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 E. Bergeron, Department 4. 

 

 

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7

CIV 515707    SANDRA ROSENBERG VS. MERIDIAN BAY HOMEOWNERS ASSOCIATION, ET AL.

 

 

SANDRA ROSENBERG                                SIMON OFFORD

MERIDIAN BAY HOMEOWNERS ASSOCIATION             MORIS DAVIDOVITZ

 

 

MOTION TO ENFORCE COMPLIANCE AND COMPEL PRODUCTION OF DOCUMENTS BY SANDRA ROSENBERG

 

 

·         The Defendant’s Request for Judicial Notice is GRANTED. 

 

·         The Plaintiff’s Motion to Enforce Compliance is DENIED. 

 

·         The material to which Defendant asserts the attorney-client privilege are communications between corporate board members and agents that reflect/regard communications from Defendant’s attorneys.  Such communications fall within the range of attorney-client privilege.  (See Zurich American Ins. Co. v. Sup. Ct. (2007) 155 Cal. App. 4th 1485.)  Evidence Code section 915 prohibits disclosure of the information claimed to be privileged as a confidential communication in order to rule on the claim of privilege.  (See Costco Wholesale Corp. v. Sup. Ct. (2009) 47 Cal. 4th 725, 732.)

 

·         Furthermore, Plaintiff is making a motion to compel compliance presumably under section 2031.320(a).  However, the motion is actually a motion to compel further responses pursuant to section 2031.310(a)(3).  (“An objection in the response is without merit or too general.”)  Defendant’s statement it would produce documents states that objections were not waived and that only non-privileged documents would be produced.  Plaintiff is challenging the assertion of the attorney-client privilege in the response.  Thus, a Separate Statement is required under CRC Rule 3.1345(a)(3), which was not submitted by Plaintiff. 

 

·         The Defendant also asserted the work product doctrine as an objection which was also asserted in the responses and privilege log.  Plaintiff does not address the work product objection and merely states that she was focusing on the attorney-client privilege.  Whether Plaintiff believes the objection is senseless does not mean that Plaintiff did not have to address it in her moving papers.  

 

·         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 Joseph E. Bergeron, Department 4. 

 

 

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8

CIV 516016    SHALA JANINE MARIN VS. TACO BELL, INC.

 

 

SHALA JANINE MARIN                              WILLIAM H. BASSETT

DOLAN FOSTER ENTERPRISES, LLC                   THOMAS R. GILL

 

 

MOTION TO BE RELIEVED AS COUNSEL FILED BY SHALA JANINE MARIN

 

 

·         Case dismissed. 

 

 

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9

CIV 518553    MWKS PERRY STREET, LLC VS. PERRY STREET, LLC, ET AL.

 

 

MWKS PERRY STREET, LLC                          RICHARD VAN'T ROOD

PERRY STREET, LLC                               SHEILA GROPPER NELSON

 

 

DEMURRER TO COMPLAINT of MWKS PERRY STREET, LLC BY ANGEL SIU PING YUEN

 

 

·         Defendant ANGEL SIU PING YUEN’s Demurrer to Complaint of MWKS PERRY STREET, LLC is SUSTAINED, as follows:

 

·         The Demurrer is SUSTAINED WITH LEAVE TO AMEND as to the Second Cause of Action for Interference with Contract.  A cause of action for interference with contract must show: (1) a valid and existing contract between plaintiff and a third party; (2) defendant’s knowledge of the contract; (3) defendant’s intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption; and (5) resulting damage.  Shapoff v. Scull (1990) 222 Cal.App.3d 1457, 1464-65.  Plaintiff’s Complaint does not sufficiently allege the third element of intentional acts designed to induce a breach or disruption of the contractual relationship.  

 

·         The Demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to the Third Cause of Action for Civil Conspiracy.  Generally speaking, “conspiracy” is not a separate cause of action.  It is a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration.  Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 511.  

 

·         Although Plaintiff has improperly alleged civil conspiracy as a separate cause of action, it is GRANTED leave to incorporate conspiracy allegations into the remaining causes of action as appropriate. 

 

·         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 Joseph E. Bergeron, Department 4. 

 

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10

CLJ 505830    CAPITAL ONE BANK (USA), N.A. VS. DAVID DOHRMANN

 

 

CAPITAL ONE BANK (USA), N.A.                    MICHAEL R. BOULANGER

DAVID DOHRMANN                                  PRO/PER

 

 

MOTION TO COMPEL DISCOVERY RESPONSES AND REQUEST FOR SANCTIONS BY CAPITAL ONE BANK (USA), N.A.

 

·         The Plaintiff Capital One Bank (U.S.A.), N.A.’s unopposed Motion to Compel Responses to Special Interrogatories and Production of Documents is GRANTED pursuant to CCP § 2030.290 and CCP § 2031.300.  

 

·         Defendant David Dohrmann shall provide verified responses without objection to the Requests for Special Interrogatories and Production of Documents by June 27, 2013.   

 

 

MOTION TO DEEM MATTERS ADMITTED AND REQUEST FOR SANCTIONS BY CAPITAL ONE BANK (USA), N.A.

 

·         Plaintiff Capital One Bank (U.S.A.), N.A.’s unopposed Motion to Deem Matters Admitted is GRANTED pursuant to CCP § 2033.280.  All of the documents and matters set forth in Plaintiff’s Request for Admissions, dated January 21, 2013, are hereby deemed admitted. 

 

·         Defendant shall pay monetary sanctions to Plaintiff in the amount of $735.00 pursuant to CCP § 2030.290(c), CCP § 2031.300(c), and §2033.280(c) by June 27, 2013. 

 

·         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 Joseph E. Bergeron, Department 4. 

 

 

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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   JUNE 13, 2013

 

If you plan to appear on any case on this calendar,  you must call (650) 363-4511 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

9:01

1

CIV 519867    JORGE BERROSPI VS. GARY DIELACHER

 

 

JORGE BERROSPI                                  CONOR GRANAHAN

GARY DIELACHER                                  DAVID S. ROSENBAUM

 

 

MOTION FOR PRELIMINARY INJUNCTION FILED BY JORGE BERROSPI

 

 

·         The Motion for Preliminary injunction is GRANTED pursuant to CCP 526(a) conditional upon the filing of an undertaking in the amount of $10,000 pursuant to CCP 529(a).  See Robbins v. Superior Court (1985) 38 Cal 3^rd 199, 211.  Plaintiff will suffer the greater hardship if the injunction is not granted and a reasonable probability of prevailing on the merits has been demonstrated. 

 

 

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