September 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

 

AUGUST 28, 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 508065       TIFFANY JANE MOLOCK VS. WESTBOROUGH COURT CONDOMINIUM

                   HOMEOWNERS ASSOCIATION, ET AL.

 

 

TIFFANY JANE MOLOCK                   JOHN C. MILLER

WESTBOROUGH COURT CONDOMINIUM HOA     AUDREY SMITH

 

 

MOTION FOR SUMMARY ADJUDICATION OF ISSUES BY JOHN LEE AND STELLA LEE AGAINST WESTBOROUGH COURT CONDOMINIUM HOMEOWNERS ASSOCIATION, THE MANOR ASSOCIATION, INC. AND SAARMAN CONSTRUCTION, LTD.

 

 

·         The Court sustains the objections raised by Cross-Defendant Westborough Court Condominium Homeowners Association as to Material Facts 5 [improper hearsay opinion], 6 [lack of foundation and mischaracterizes testimony], 7 [lack of foundation and mischaracterizes testimony], 11 [improper hearsay opinion, overbroad, vague and ambiguous], 12 [litigation privilege], 13 [litigation privilege, misleading and mischaracterizes evidence, lack of foundation], 14 [lack of foundation, misleading and mischaracterizes evidence], 15 [no party may rely on its own pleadings as evidence supporting a motion for summary adjudication], 16 [litigation privilege] and 17 [lack of evidence].

 

·         The Court sustains the following objections raised by Cross-Defendant Saarman Construction, Ltd.:  

 

1)    Objection to the use of the word “toxic” in Material Fact 5 as that word is not included in the expert’s declaration.  (Evidence Code § 801(b) - testimony outside the expert’s admitted area of expertise.)

 

2)    Objection to Paragraph 7 of the declaration of Chip Prokop as that testimony is outside the witness’ area of expertise.  (Evidence Code § 801(b).)

 

·         Cross-Complainants John Lee and Stella Lee’s Motion for Summary Adjudication is DENIED.  Summary adjudication must completely dispose of the cause of action, defense, or damage claim to which it is directed.  (CCP 437c(f)(1).)  See Hood v. Superior Court (1995) 33 Cal.App.4th 319, 321.  The issues raised by the Cross-Complainants do not dispose of the causes of action for negligence and intentional trespass.  These issues do not address the required element of damages.  A determination of liability alone does not completely dispose of the cause of action.  A plaintiff cannot obtain judgment on a cause of action in an amount of damages to be determined later.  Paramount Petroleum Corporation v. Superior Court (2014) 2014 Cal.App. LEXIS 540 and Department of Industrial Relations v. UI Video Stores, Inc. (1997) 55 Cal.App.4th 1084, 1097.

 

·         The Cross-Complainants, as the moving parties, bear the burden of proving each element of the cause of action entitling them to summary adjudication as to that cause of action.  (CCP 437c(p)(1).)  As the Cross-Complainants have not met their burden, the burden does not shift to Cross-Defendants requiring them to establish triable issues of material fact.  (CCP 437c(p)(1).)  Even if the Cross-Complainants had met their initial burden, the Cross-Defendants have created numerous triable issues of material fact including Material Facts 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17, 19, 20, 23, 26, 30, 31, 34, 36, 39 and 40.

 

·         Moving 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

2

CIV 524369       IVYMAX, INC. VS. LIXIA ZHONG, ET AL.

 

 

IVYMAX, INC.                          ANDREW G. WATTERS

LIXIA ZHONG                           PETER CHAO

 

 

SPECIAL MOTION TO STRIKE THE CROSS-COMPLAINT OF STEVEN CHAN BY VICKIE ZHANG

 

 

·         See below.

 

 

SPECIAL MOTION TO STRIKE THE CROSS-COMPLAINT OF STEVEN CHAN BY LING LIEN

 

 

·         The Special Motions to Strike filed by Cross-Defendants LING LIEN and VICKIE ZHANG are denied.  The motions fail to demonstrate that the Cross-Complaint or any cause of action in it arises from any "act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue."  (Code of Civil Procedure § 425.16, subd. (e).)  The Cross-Complaint is based on statements or publications that were made to students or potential students of Cross-Complainant.  Such communications do not fall within any of the categories of “protected activity” of Section 425.16.  (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 211.)

 

·         If the tentative ruling is uncontested, it shall become the order of the Court.  Thereafter, Cross-Complainant’s counsel  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

3

CIV 526966       LISA BERGLUND VS. JUSTIN JAMES HANESWORTH

                   CASTELLANOS, ET AL.

 

 

LISA BERGLUND                         MICHAEL S. DANKO

JUSTIN JAMES HANESWORTH CASTELLANOS   KEVIN K. CHOLAKIAN

 

 

DEMURRER TO THE FIRST AMENDED ANSWER OF DEFENDANTS EXPRESS MESSENGER SYSTEMS, INC. DBA ONTRAC AND JUSTIN JAMES HANESWORTH CASTELLANOS BY LISA BERGLUND

 

 

·         Plaintiff Lisa Berglund’s Request for Judicial Notice is GRANTED pursuant to Evidence Code § 452(d).

 

·         Plaintiff Lisa Berglund’s Demurrer to Defendants’ 20th Affirmative Defense is OVERRULED.  Defendants have not yet filed any amended answer alleging a 20th affirmative defense.

 

·         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. 

 

_____________________________________________________________________

9:00

4

CIV 527344       GIHAD GHAIBEH, ET AL. VS. BANK OF AMERICA, N.A., ET

                   AL.

 

 

GIHAD GHAIBEH                         EUNJI CHO

BANK OF AMERICA, N.A.                 ANDREA M. HICKS

 

 

DEMURRER TO FIRST Amended COMPLAINT of GHAIBEH BY SERVIS ONE, INC. DBA BSI FINANCIAL SERVICES, INC. AND VENTURES TRUST 2013-I-NH

 

 

·         Defendants Servis One, Inc. dba BSI FINANCIAL SERVICES, INC. and VENTURES TRUST 2013-I-NH’s Demurrer to the First Amended Complaint is OVERRULED as to the 2nd Cause of Action for Negligent Misrepresentation and 3rd Cause of Action for Intentional Misrepresentation.  These claims are sufficiently pled. 

 

·         Defendants’ Request for Judicial Notice is GRANTED insofar as the documents were filed in the Official Records of the County of San Mateo, but not as to the truth of any matters asserted therein.

 

·         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. 

 

_____________________________________________________________________

9:00

5

CIV 529459       VIKAS SAINI VS. STEPHANIE C. VILLANUEVA

 

 

VIKAS SAINI                           BRYAN R. R. WHIPPLE

STEPHANIE C. VILLANUEVA

 

 

PETITION FOR ORDER COMPELLING ARBITRATION BY VIKAS SAINI

 

 

·         This matter has been continued to October 1, 2014 at 9:00 a.m. in the Law and Motion department.

 

_____________________________________________________________________

9:00

6

CLJ 209612       HALF MOON BAY PROPERTIES LLC vs. JUSTINE MARSH, et

                   al.

 

 

HALF MOON BAY PROPERTIES LLC          JONATHAN HERSCHEL BORNSTEIN

JUSTINE MARSH                         DENNIS L. FAORO

 

 

MOTION TO QUASH SERVICE OF SUMMONS BY JUSTINE MARSH, INDIVIDUALLY AND DBA MARSH LIVESTOCK, AND RON MARSH, INDIVIDUALLY AND DBA MARSH & SONS AND MARSH LIVESTOCK

 

 

·         Defendants Justine Marsh, individually and dba Marsh Livestock, and Ron Marsh, individually and dba Marsh & Sons and Marsh Livestock’s Motion to Quash Service of Summons is DENIED.  Plaintiff has sufficiently stated a cause of action for unlawful detainer based upon a CCP § 1161.1 notice following Defendants’ default in the payment of rent.  Defendants’ alternative Motion to Strike is DENIED.  Such a motion has not been properly noticed as Defendants did not comply with CRC 3.1322(a).  Additionally, both motions attempt to rely on extrinsic evidence which the Court cannot consider in ruling on the motions.  CCP §§ 437, 1167.4, 418.10; Greener v. Workers’ Comp. Appeals Bd. (1993) 6 Cal.4th 1028, 1036 and Blank v. Kirwan (1983) 39 Cal.3d 311.

 

·         Defendants shall have five (5) days from service of the notice of ruling to file an Answer.

 

·         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. 

 

_____________________________________________________________________

9:00

7

CLJ 209823       PARKVIEW EDGE PROPERTIES, LLC VS. CONSUELO DE GUZMAN

 

 

PARKVIEW EDGE PROPERTIES, LLC         SAM CHANDRA

CONSUELO DE GUZMAN                    PRO/PER

 

 

MOTION FOR SUMMARY JUDGMENT AS TO COMPLAINT (UNLAWFUL DETAINER)

of PARKVIEW EDGE PROPERTIES, LLC BY PARKVIEW EDGE PROPERTIES, LLC

 

 

·         Plaintiff’s Request For Judicial Notice is GRANTED pursuant to Evidence Code §§ 452(d) and 453.

 

·         Plaintiff's unopposed Motion for Summary Judgment is GRANTED.  Plaintiff has 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 defendant’s right to possession pursuant to a 3-Day Notice to Quit [CCP § 1161a] and the defendant’s continuing possession.  The burden then shifts to Defendant under CCP § 437c(p)(1) to establish a triable issue of material fact.  No opposition has been forthcoming.  Plaintiff is awarded a judgment for possession only.

 

·         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. 

 

_____________________________________________________________________

9:00

8

CLJ 503716       SHARON J. ALLEN VS. RONALD L. BEAMAN, ACCOUNTANCY

                   CORPORATION, INC.

 

 

SHARON J. ALLEN                       MITCH O. ONU

RONALD L. BEAMAN

 

 

MOTION TO AMEND JUDGMENT NUNC PRO TUNC TO ADD RONALD L. BEAMAN AS ALTER EGO JUDGMENT DEBTOR BY SHARON J. ALLEN

 

 

·         Plaintiff’s unopposed motion for an order amending the judgment nunc pro tunc to add Ronald L. Beaman as alter ego judgment debtor pursuant to CCP § 187 is DENIED. 

 

·         The Motion to Amend the Judgment Nunc Pro Tunc is not properly before the Court.  In order to amend a judgment based upon an order, decision or award of the Labor Commissioner, the Labor Commissioner must initiate the process pursuant to Labor Code § 98(h)(2).  In this case, no application has been filed by the Labor Commissioner pursuant to Labor Code § 98(h).  Rather, Plaintiff has filed a Motion to Amend the Judgment pursuant to CCP § 187.  Plaintiff has not followed the correct procedure for amending the judgment based upon an award of the Labor Commissioner.

 

·         Plaintiff’s counsel has no personal knowledge of the employer-employee relationship between Plaintiff Sharon J. Allen and Defendant Ronald L. Beaman, Accountancy Corporation, Inc., a California corporation d.b.a. Ronald L Beaman & Co., Inc.  In addition, the screen shots from the website of the California Board of Accountancy website and the California Secretary of State’s office are not certified copies of documents from either agency.  Rather they are simply printouts of the web search that was purportedly conducted by Plaintiff’s counsel.  These documents and the contents therein are inadmissible hearsay.  See Evidence Code § 1200, et seq.

 

·         The moving party is directed to prepare a written order consistent with the Court's tentative ruling for the Court's signature, pursuant to CRC 3.1312, and provide notice thereof to all counsel as required by law and the California Rules of Court.  A copy of the order is to be delivered directly to Judge Elizabeth K. Lee in Department 17.

 

_____________________________________________________________________

9:01

9

CLJ 209972       WORKING DIRT LLC VS. JAVIER M. RODRIGUEZ

 

 

WORKING DIRT LLC                      BRENDA CRUZ KEITH

JAVIER M. RODRIGUEZ                   SHIRLEY E. GIBSON

 

 

MOTION TO QUASH SERVICE OF UNLAWFUL DETAINER SUMMONS BY JAVIER M. RODRIGUEZ

 

 

·         Defendant Javier M. Rodriguez’s Motion to Quash Service of Summons is DENIED.  The subject 3-Day Notice to Cure or Quit served on Defendant provides sufficient notice to support a cause of action for unlawful detainer.  It clearly states the alternatives:  cure the listed nuisances or quit the premises.  The nuisances here are curable, and the defendant was given sufficient notice apprising him of what must be done to cure or to vacate.  The nuisance alleged does not require payment under RSO Section 16(A)(3), and the Notice does specify good cause for the termination.

 

·         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 ROBERT D FOILES

Department 21

 

400 County Center, Redwood City

Courtroom 2J

 

AUGUST 28, 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 526930       PUBLIC SCHOOL TEACHERS’ PENSION AND RETIREMENT FUND

                   OF CHICAGO VS. GARY S. GUTHART, ET AL.

 

 

PUBLIC SCHOOL TEACHERS’ PENSION       CAROL VALERIE GILDEN

GARY S. GUTHART                       CODY SHAWN HARRIS

 

 

COMPLEX CASE STATUS CONFERENCE

 

 

·         APPEAR.  

 


 

 

In the Superior Court of the State of California

In and for the County of San Mateo

 

Special Set Law and Motion Calendar

Judge: Honorable JOSEPH E. BERGERON

Department 4

 

400 County Center, Redwood City

Courtroom 2B

 

AUGUST 28, 2014

 

IF YOU INTEND TO APPEAR ON ANY CASE ON THIS CALENDAR YOU MUST DO THE FOLLOWING:

3. YOU MUST CALL (650) 261-5104 BEFORE 4:00 P.M. TO INFORM THE COURT OF YOUR INTENT TO APPEAR.

4. 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

CLJ 458584       RESURGENCE FINANCIAL, LLC VS. JENNIE B. McGANN

 

 

RESURGENCE FINANCIAL, LLC             NATHAN A. SEARLES

JENNIE B. McGANN                     

 

 

POST-JUDGMENT MOTION FOR ORDER COMPELLING RESPONSES TO SPECIALLY PREPARED INTERROGATORIES AND REQUEST FOR SANCTIONS BY RESURGENCE FINANCIAL, LLC

 

 

·         Plaintiff’s Post-Judgment Motion for Order Compelling Responses to Specially Prepared Interrogatories is GRANTED.

 

·         Plaintiff’s Request for Sanctions is GRANTED in the amount of $150.00, payable no later than September 19, 2014.

 

_____________________________________________________________________

9:00

2

CIV 500377       DANIELA KEIL VS. AURORA LOAN SERVICES, LLC, ET AL.

 

 

DANIELA KEIL                          PRO/PER

AURORA LOAN SERVICES, LLC             JOSEPH W. GUZZETTA

 

 

MOTION FOR AN AWARD OF ATTORNEYS’ FEES BY AURORA LOAN SERVICES, LLC AND MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.

 

 

·         The Defendants Aurora Loan Services, LLC and Mortgage Electronic Registration Systems, Inc.’s Motion for an Award of Attorneys’ Fees is DENIED.

 

·         The Defendants have not shown that the applicable attorney’s fees provisions apply to this action.  In this action, Plaintiff sought to undo a foreclosure sale and alleged that Defendants violated RESPA and B&P § 17200 and that she was damaged by Defendants' conduct.  The attorney's fees provision in the Note authorizes the Note holder to be paid for costs and expenses in enforcing the Note.  The Deed of Trust states that the lender is entitled to reasonable attorney's fees incurred in protecting its interest in the property and/or rights under the security instrument.  This action did not challenge the lender's interest in the Note or interest in the property and/or rights under this security instrument.  Rather, it challenged Defendants’ authority to initiate the foreclosure proceedings.  Furthermore, Defendants have not shown that they were parties to or intended third-party beneficiaries of either the Note or Deed of Trust. 

 

·         Prevailing party is directed to prepare a written order consistent with the Court’s ruling, 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.

 

_____________________________________________________________________

9:00

3

CIV 515707       SANDRA ROSENBERG VS. MERIDIAN BAY HOMEOWNERS                  

                   ASSOCIATION, ET AL.

 

 

SANDRA ROSENBERG                      SIMON OFFORD

MERIDIAN BAY HOMEOWNERS ASSOCIATION   AMANDA UHRHAMMER

 

 

REHEARING PURSUANT TO APPELLATE DECISION ORDERING A REHEARING REGARDING THIS COURT’S ORDER TO ENFORCE COMPLIANCE AND COMPEL PRODUCTION OF DOCUMENTS

 

 

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

 

·         Following the Appellate Court’s May 5, 2014 Order, the Court only considers the parties’ original briefings on Plaintiff’s Motion to Enforce Compliance, the parties’ recent briefings regarding the privileged communications and Defendants’ Fourth Amended Privilege Log.

 

·         All of the documents over which Defendants claim attorney/client privilege are presumptively privileged because they are communications reflecting/regarding legal advice and are between parties reasonably necessary to the “transmission of the information or the accomplishment of the purpose for which [their] lawyer [was] consulted.”  Zurich American Ins. Co. v. Superior Court (2007) 155 Cal.App.4th 1485, 1502; California Evidence Code § 952. 

 

·         Further, Defendants’ privilege log sufficiently describes the communications in order for this Court to determine that the communications are privileged.  Best Products, Inc. v. Superior Court (2004) 119 Cal.App.4th 1181, 1188-89; Code of Civil Procedure § 2031.240(c); see also Zurich, 155 Cal.App.4th at 1494, 1503.

 

·         Finally, although Plaintiff argues that the in-camera review of these documents was in compliance with Costco, the Appellate Court made clear that the review was not appropriate in this case.  Disclosure of information claimed to be privileged in order to rule on a claim of privilege is prohibited.  California Evidence Code § 915; Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 739.  Defendants have established a prima facie claim of attorney/client privilege for these communications, thus they cannot be reviewed in-camera. 

 

·         Prevailing party is directed to prepare a written order consistent with the Court’s ruling, 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.

 


 

 

 


POSTED:  3:00 PM

 

 

 

 

 

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