October 31, 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

 

OCTOBER 30, 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 514363       JAMES M. HUGGER, ET AL. VS. COAST CAPITAL INCOME FUND

                   LLC, ET AL.

 

 

JAMES M. HUGGER                       PRO/PER

COAST CAPITAL INCOME FUND LLC         MICHAEL D. MANDELL

 

 

MOTION FOR JUDGMENT ON PLAINTIFFS’ THIRD AMENDED COMPLAINT BY COAST CAPITAL INCOME FUND, LLC

 

 

·         The motion is denied as to the entire complaint and each cause of action. All four of Defendant’s arguments lack merit.

 

·         The motion is brought on the grounds that the Complaint fails to state “a cause of action” against CCIF. Therefore, the motion must be denied if the Complaint states any cause of action, even if others are defective.

 

·         1. The Entire Complaint is not a Derivative Action. The Complaint alleges that Defendants made false material statements in order to induce Plaintiffs (and “would-be investors”) to invest in or to keep their money in the fund.  (See, e. g., TAC at 12:25-27, 13:13-14, 14:13-16.) Since the claims are based on acts directed at plaintiffs before they became investors, it cannot be said that all members of the LLC were affected similarly. Diminution in membership shares generally would constitute a derivative claim, if the loss is shared by all members. However, Plaintiffs allege that part of their damage was not just the diminution in the value of their shares, but also from investing in the LLC in the first place. The latter damage is not one that is necessarily shared by all members.

 

·         2. Acts of CCIF’s Manager, ECI, Does not Preclude Claims against CCIF. Defendant misinterprets Civil Code section 2343, which states that an agent is liable “as principal” when its “acts are wrongful in their nature.” Section 2343 does not relieve a principal of liability by substituting the agent in its place. Rather, the statute expands liability from just the principal to include the agent. “An agent or employee is always liable for his own torts, whether his employer is liable or not.” (Shafer v. Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone (2003) 107 Cal. App. 4th 54, 68.) “[I]f a tortious act has been committed by an agent acting under authority of his principal, the fact that the principal thus becomes liable does not, of course, exonerate the agent from liability.” (Id. at 68.) That section 2343 imposes liability on ECI does not mean that ECI’s principal (CCIF) is exonerated or insulated from liability.

 

·         3. The Ultra Vires Doctrine Is Inapplicable. “Ultra vires” refers to an act which is beyond the powers conferred upon a corporation by its charter or by the laws of the state of incorporation. (Sammis v. Stafford (1996) 48 Cal. App. 4th 1935, 1942.)  “Ultra vires” pertains to the invalidity of a corporation’s acts that are not authorized by the articles of incorporation. It does not pertain to invalidity of acts by an agent who arguably acted beyond his authority.

 

·         4. The Argument Against Civil Penalties Lacks Merit. That no private right action exists for civil penalties under B&P section 17200 does not support this motion. The complaint does not allege or pray for any civil penalties.  Regardless, the proper attack on an improper remedy is a motion to strike, not a demurrer or motion for judgment on the pleadings. (Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1561-1562.)

 

·         If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, 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. The order is to be submitted directly to Judge Elizabeth K. Lee, Department 17.

 

 

_____________________________________________________________________

 

9:00

2

CIV 519076       ROBERT MCNAMARA, ET AL. VS. EMBASSY SUITES

                   MANAGEMENT, LLC, ET AL.

 

 

ROBERT MCNAMARA                       RICHARD H. SCHOENBERGER

EMBASSY SUITES MANAGEMENT, LLC        JOSEPH A. AGUILAR

 

 

MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION BY CITY MECHANICAL, INC. AGAINST ROBERT MCNAMARA AND DIANE MCNAMARA

 

 

·         Defendant City Mechanical’s Motion for Summary Judgment/Summary Adjudication is DENIED.

 

·         Defendant has met its initial burden under CCP 437c(p)(2) of establishing a lack of duty to Plaintiffs. The burden then shifts to Plaintiffs to show that a triable issue of material fact exists as to each cause of action. Plaintiffs have met that burden. Plaintiffs have created triable issues of material facts as to defendant’s material facts 7, 8, 19, 23, 24, 25 and 31. They have also submitted no less than an additional 40 material facts that raise triable issues of material fact as to the issue of duty.

 

·         Defendant’s motion is based on the argument that they had no duty to plaintiff because their contract with the Embassy Suites did not include maintenance on the pool/spa boiler which was the cause of the accident. As the party moving for summary judgment, City Mechanical bears the burden of proof, to establish that there are no triable issues of material fact. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal 4th 826, 850. They must prove that one or more elements of the cause of action cannot be established or that there is a complete defense. Id.; CCP 437c(p)(2). The motion must be denied if there is any triable issue of fact. See Aguilar, supra at 850. And in ruling on the motion, the court must consider all of the evidence and all of the inferences reasonably drawn from the evidence and must view such evidence and inferences in the light most favorable to the opposing party. Aguilar, supra at 844-45.

 

·         Here, a question of fact exists as to whether City Mechanical contracted with Embassy Suites to provide maintenance on the pool/spa boiler. I believe that plaintiffs and Embassy Suites have created triable issues of material fact as to this issue. They have successfully created triable issues of fact as to Defendant’s material facts 7, 8, 19, 23, 24, 25 and 31. Additionally, plaintiffs have submitted 40 additional facts all of which create triable issues as to whether City Mechanical agreed to provide maintenance on the pool/spa boiler.

 

·         City Mechanical has submitted a reply brief in which they principally argue that the opposition’s are outside the scope of the pleadings and cannot defeat the motion. They argue that a defendant moving for summary judgment has the burden to negate plaintiffs theories of liability as alleged in the complaint, citing to Laabs v. City of Victorville (2008) 163 Cal App 4th 1242, 1253-55. City Mechanical has taken the position that neither plaintiffs nor Embassy Suites have pled causes of action for breach of contract, contract reformation or promissory estoppel. This ignores the fact that in pleading negligence, they have all allege that defendant owed them a duty based on defendant inspecting, maintaining, servicing, repairing, etc. the pool/spa boiler. Defendant’s motion is based on the argument that they owed no such duty because they had not contracted to maintain the boiler.

 

·         Plaintiffs and Embassy Suites have disputed material facts and provided evidence regarding that issue of duty. There is nothing in the cases cited by defendant that precludes them from disputing the material facts raised by defendant regarding duty. The evidence submitted by plaintiffs and Embassy Suites goes to the issue of duty which is raised in the cause of action for negligence. They are not raising issues outside the pleadings; they are simply opposing defendant’s arguments regarding duty.

 

·         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.

 

 

MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION BY CITY MECHANICAL, INC. AGAINST NEW HAMPSHIRE INS. CO. AND OCCIDENTAL PETROLEUM CORP.

 

 

·         Defendant City Mechanical’s Motion for Summary Judgment is DENIED.

 

·         Defendant has met its initial burden under CCP 437c(p)(2) of establishing a lack of duty to Plaintiffs. The burden then shifts to the Intervenors to show that a triable issue of material fact exists as to each cause of action. Intervenors have met that burden. They have created triable issues of material facts as to defendant’s material facts 6, 7, 8, 9, 10, 19, 23, 24, 25 and 31.

 

·         Defendant City Mechanical’s motion for summary judgment is based on one argument: they had no duty to plaintiff because their contract with the Embassy Suites did not include maintenance on the pool/spa boiler which was the cause of the accident. As explained above, the party moving for summary judgment, City Mechanical bears the burden of proof, to establish that there is no triable issue of material fact.

 

·         Here, a question of fact exists as to whether City Mechanical contracted with Embassy Suites to provide maintenance on the pool/spa boiler. The intervenors have created triable issues of material fact as to this issue. They have successfully created triable issues of fact as to Defendant’s material facts 6, 7, 8, 9, 10, 19, 23, 24, 25 and 31.

 

·         City Mechanical has submitted a reply brief in which they principally argue that the opposition is outside the scope of the pleadings and cannot defeat the motion. They argue that a defendant moving for summary judgment has the burden to negate plaintiffs’ theories of liability as alleged in the complaint, citing to Laabs v. City of Victorville (2008) 163 Cal App 4th 1242, 1253-55. They contend that neither plaintiffs nor Embassy Suites have pled causes of action for breach of contract, contract reformation or promissory estoppel. This ignores the fact that in pleading negligence, the Plaintiffs have alleged that defendant owed them a duty based on defendant inspecting, maintaining, servicing, repairing etc. the pool/spa boiler. Defendant’s motion is based on the argument that they owed no such duty because they had not contracted to maintain the boiler. In opposing that motion, intervenors have disputed material facts and provided evidence regarding that issue of duty.

·         There is nothing in the cases cited by defendant that precludes the intervenors from disputing the material facts raised by defendant regarding duty. The evidence submitted by intervenors goes to the issue of duty which is raised in the cause of action for negligence. They are not raising issues outside the pleadings; they are simply opposing defendant’s arguments regarding duty.

 

·         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

3

CIV 520157       DONALD CHARLES VASSALLO VS. D&M TOWING, INC., ET AL.

 

 

DONALD CHARLES VASSALLO               DREW F. TETI

D&M TOWING, INC.                      JAMES H. HARTNETT

 

 

MOTION TO COMPEL FURTHER DISCOVERY RESPONSES BY DONALD VASSALLO

 

 

·         This matter was continued from the hearing on October 9, 2014. The parties were ordered to meet and confer in an effort to narrow the scope of the requested discovery.  The parties were also invited to submit additional information, limited to a one page letter, if there was continued disagreement as to categories of discovery that needed to be produced first. The court did not receive anything further from the parties.

 

·         As stated previously, the court is inclined to adopt its tentative ruling issued on October 8, 2014 but will also entertain arguments concerning phasing the discovery so that the most the most urgent information needed by plaintiff can be produced first and that the discovery can be narrowly tailored to get the information that plaintiff is seeking and not require production of irrelevant material.  The court intends to order that all of the discovery subject to this order must be produced on or before November 26, 2014.

 

·         The only change in the tentative ruling is that the court plans exclude from the production any tax returns.  Taxpayers are privileged to withhold disclosure of copies of both federal and state tax returns and the information contained therein. (Weil & Brown, section 8:112, pg. 8C-16)     

 

·         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 520889       ANA MARIA SANDOVAL VS. GREENPOINT MORTGAGE FUNDING

                   INC., ET AL.

 

 

ANA MARIA SANDOVAL                    VI K. TRAN

GREENPOINT MORTGAGE FUNDING INC.      BRIAN S. WHITTEMORE

 

 

DEMURRER TO FIRst Amended COMPLAINT of SANDOVAL BY GREENPOINT MORTGAGE FUNDING, INC.

 

 

·         Defendant GREENPOINT MORTGAGE FUNDING, INC.’s Demurrer to First Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND as to all causes of action, as follows:

 

·         As to the First cause of action for unfair business practices, on the ground that it is time-barred by the four-year statute of limitations for UCL claims.  Bus. & Prof. Code § 17208.  Plaintiff has also failed to allege tender, which is a requirement in any cause of action asserting irregularities in the foreclosure proceedings.  Karlsen v. American Sav. and Loan Ass’n. (1971) 15 Cal.App.3d 112, 117-18; Abdallah v. United Sav. bank (1996) 43 Cal.App.4th 1101, 1109. 

 

·         As to the Second cause of action for fraud, on the ground that it is time-barred by the three-year statute of limitations for fraud, and two-year statute of limitations for negligent misrepresentation.  Code Civ. Proc. §§ 338, 339.  Further, this cause of action lacks the requisite specificity for fraud claims, particularly as brought against a corporate defendant.  Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73; Tarmann v. State Farm Mutual Auto Insurance Co. (1991) 2 Cal.App.4th 153, 157.

 

·         As to the Third cause of action for quiet title, on the ground that Plaintiff has not alleged tender.  “A mortgagor of real property cannot, without paying his debt, quiet his title against the mortgagee.”  Miller v. Provost (1994) 26 Cal.App.4th 1703, 1707.  The offer of tender must be of the amount borrowed.  Arnolds Management Corp. v. Eischen (1984) 158 Cal.App.3d 575, 578.  The plaintiff must (1) demonstrate a willingness to pay and (2) show the ability to pay.  In re Worcester (9th Cir. 1987) 811 F.2d 1224, 1231. 

 

·         As to the Fourth and Fifth causes of action for emotional distress, on the ground that they are barred by the two-year statute of limitations.  Code Civ. Proc. § 335.1.  Plaintiff further fails to allege conduct “so extreme as to exceed all bounds of that usually tolerated in a civilized community.”  Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209.

 

·         As to the Sixth cause of action for declaratory relief, on the ground that it sets forth no actual, present controversy for which declaratory relief is warranted.  Code Civ. Proc. § 1060; City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79.  Moreover, this cause of action is time-barred to the extent that it relies upon any of the preceding claims for support.  Pena v. City of Los Angeles (1970) 8 Cal.App.3d 257, 262. 

 

·         Defendant’s Request for Judicial Notice is GRANTED pursuant to Evid. Code § 452.  In foreclosure cases, “A court may take judicial notice of the fact of a document's recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document's legally operative language, assuming there is no genuine dispute regarding the document's authenticity; from this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face.”  Fontenot v. Wells Fargo Bank (2011) 198 Cal.App.4th 256, 265.

 

·         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 two-page Opposition, while requesting leave to amend, fails to meet this burden.  The demurrer is therefore sustained without leave to amend.

 

·         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 Elizabeth K. Lee, Department 17.

 

 

_____________________________________________________________________

9:00

5

CIV 523065       RAEL & LETSON VS. MICHAEL CLARK, ET AL.

 

 

RAEL & LETSON                         MICHAEL S. DORSI

MICHAEL CLARK                         PAUL J. BARULICH

 

 

MOTION TO COMPEL (1) THE PRODUCTION OF CLARK’S PERSONAL TAX RETURNS AND (2) ANSWERS TO DEPOSITION QUESTIONS RELATED TO THE PERSONAL TAX RETURNS OF CLARK BY RAEL & LETSON

 

 

·         This matter is moot.  Plaintiff’s motion for summary judgment was granted on October 9, 2014.  

 

 

_____________________________________________________________________

 

9:00

6

CIV 529636       ERIK RICHARD WARREN HARTELIUS VS. COLIN TROY SMITH, 

                   ET AL.

 

 

ERIK RICHARD WARREN HARTELIUS         KATHERINE R. MOORE

COLIN TROY SMITH

 

 

DEMURRER TO COMPLAINT of HARTELIUS BY COUNTY OF SAN MATEO

 

 

·         The demurrer is sustained without leave to amend as to the First cause of action for battery and the Third cause of action for false imprisonment.  The complaint fails to allege facts indicating that defendant Smith was within the course and scope of his employment at the time of the wrongful conduct.  According to the facts in complaint and attached police report, this conduct occurred at a time when defendant Smith was off duty and there are no facts to suggest he was involved in any law enforcement function at the time of the conduct. 

 

·         The demurrer is sustained with leave to amend as to the Second cause of action for assault and the Fourth cause of action for intentional infliction of emotional distress to allege wrongful conduct occurring within the course and scope of defendant Smith’s employment.  To the extent these claims are based on the same conduct as the causes of action for battery and false imprisonment, they fail for the reason discussed above.  If, however, they are based on other conduct occurring on the evening of August 16, 2013 or early morning of August 17, 2013, the complaint fails to specify which acts form the basis for the claim. 

 

·         The demurrer to the Fifth cause of action for negligent hiring, supervision and training is sustained with leave to amend.  It is unclear from the complaint whether plaintiff is a alleging a direct claim against the County or a claim based on vicarious liability.  Pursuant to Govt. Code §815, a direct claim must be based on a statute and the complaint fails to allege any statutory authority for a negligent hiring, supervision or training claim.  If the cause of action is based on vicarious liability, the complaint fails to any facts to show the negligence of a county employee.  Moreover, C.A. v. William S. Hart Union High School District (2012) 53 Cal.4th 861, on which plaintiff relies, found a cause of action could lie against the District due to a special relationship with students.  The complaint fails to allege any special relationship between plaintiff and the County or plaintiff and Smith’s supervisors. 

 

·         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 Elizabeth K. Lee, Department 17.

 

 

_____________________________________________________________________

9:00

7

CLJ 208756       EQR-WOODLAND PARK VS. CASEY MARTIN

 

 

EQR-WOODLAND PARK                     TODD ROTHBARD

CASEY MARTIN                          PRO/PER

 

 

MOTION TO PERMANENTLY LIMIT PUBLIC ACCESS TO THE RECORD PURSUANT TO STIPULATION OF THE PARTIES AND CCP SECTION 1161.2 BY CASEY MARTIN

 

 

·         Defendant’s unopposed application to seal court records is DENIED without prejudice. This matter was dismissed by plaintiff and the defendant prevailed in the action.  The parties had previously agreed to extend the statutory period of limited access under CCP Section 1161.2 until February 15, 2014 with the agreement that defendant vacate the rental unit by January 15, 2014.  He did so. 

 

·         Plaintiff set aside the judgment and dismissed the entire action but did not do so until May, 2014 after the period for limited access had lapsed.  The parties clearly intended for this case to be dismissed before the record was unsealed.  Both parties agree that Defendant will be greatly prejudiced if this relief is not granted.  The parties have submitted a stipulation and Proposed Order to this effect.

 

·         Once the dismissal was entered, however, the court lost subject matter over the action and personal jurisdiction over the parties.  Defendant has not submitted any authorities that support the proposition that the court retains jurisdiction to order the court’s files and records sealed after a dismissal has been entered.

 

·         Should the defendant be able to submit such authorities or propose alternative grounds on which to grant this motion, the court is prepared to find that there is an overriding interest that overcomes the right of public access to the record in this matter pursuant to CRC 2.550(d). This case was dismissed by plaintiff and defendant prevailed in the action.  Without limited access, the defendant will be greatly prejudiced as prospective landlords may draw erroneous conclusions concerning this action from the uncontroverted fact that the unlawful detainer was filed.  The proposed sealing is narrowly tailored and under CCP Section 1161.2 is afforded to defendants who cases are dismissed and/or who prevail in an unlawful detainer action.  The fact that the case was dismissed beyond the statutory time frame for limited access was not caused by defendant but through inadvertence by the plaintiff.

 

·         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

8

CLJ 210126       LESLEY TERRACE VS. MARIYA VINOKUROVA

 

 

LESLEY TERRACE                        TIMOTHY S. O'HARA

MARIYA VINOKUROVA                     ALEXANDER VOLCHEGURSKY

 

 

DEMURRER TO COMPLAINT (UNLAWFUL DETAINER) of TERRACE BY MARIYA VINOKUROVA

 

 

·         Plaintiff Lesley Terrace’s Request for Judicial Notice is GRANTED pursuant to Evidence Code 452(d), (h).

 

·         Defendant Mariya Vinokurova’s demurrer to the complaint is OVERRULED.

 

·         A demurrer tests the legal sufficiency of a pleading and raises only issues of law, not of fact, regarding the form or content of the pleading under attack.  A demurrer does not challenge the truthfulness of allegations in the pleading.  It assumes all facts pleaded are true, no matter how improbable. Serrano v. Priest (1971) 5 Cal. 3rd 584, 591.  Accordingly, no demurrer will lie unless the defect under challenge appears on the face of the complaint or through a matter subject to judicial notice.

 

·         Here, the defect does not appear on the face of the complaint. Defendant’s demurrer was originally based solely on the argument that defendant was entitled to a 60-Day notice of termination under Civil Code 1946.1(b). But Civil Code 1946.1 does not apply here as the landlord is receiving funds from a governmental agency. See Mitchell v. Poole (1988) 203 Cal App Supp 1. Plaintiff is providing affordable housing under an HUD subsidized program [see the lease attached to the complaint as Exhibit 1]. Plaintiff has established in their sur-reply that federal regulations do not require a notice in the alternative to terminate a rental agreement for an HUD-subsidized program when the tenant’s criminal activity threatens the health, safety or right to peaceful enjoyment of the premises by other residents. See Scarborough v. Winn Residential, LLP(2005) 890 A. 2d 249, 251. See also 24 CFR 5.859.

 

·         Defendant shall file her answer on or before November 5, 2014.

 

·         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

9

CLJ 522368       DISCOVER BANK VS. KAREN DIANE MYHRE

 

 

DISCOVER BANK                         JONATHAN P. SIBAYAN

KAREN DIANE MYHRE                     PRO/PER

 

 

MOTION TO SET ASIDE JUDGMENT AND REFER THE MATTER FOR BINDING ARBITRATION BY KAREN DIANE MYHRE

 

 

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

 

·         Defendant Karen Myhre’s Motion to Set Aside Judgment and Refer the Matter for Binding Arbitration is DENIED.  Under CCP 663a, a motion to vacate a judgment must be made within 15 days of the date of the mailing of the notice of entry of judgment or within 180 days after entry of judgment, whichever is earlier. Notice of Entry of Judgment was served on September 9, 2014 and Defendant did not file the motion until October 1, 2014. It is untimely. The code section also sets forth 2 grounds for such a motion: 1) incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts and; 2) a judgment or decree not consistent with or not supported by the special verdict. The defendant also failed to file a notice of intention designating the grounds upon which the motion was being made. Although the defendant argues that she is pro se and has very limited legal knowledge, she is not exempt from complying with the Rules of Court and the Code of Civil Procedure. See Rappleyea v. Campbell (1994) 8 Cal. 4th 975, 985.

 

·         Additionally, Defendant seeks to vacate the judgment so the case can be referred to arbitration. But defendant has waived the right to arbitrate. CCP 1281.5(c) provides that a party waives their right to arbitrate when the defendant fails to file a petition for arbitration at the same time or before the defendant files an answer to the complaint. See also Frog Creek Partners, LLC v. Vance Brown, Inc. (2012) 206 Cal App 4th 515, 532. Courts have also held that an arbitration clause will be considered waived when the suit goes to judgment as it will be final and binding on the parties. Sauter v. Superior Court (1969) 2 Cal. App. 3d 25, 29. Defendant filed her answer on July 30, 2013 and did not seek the right to arbitrate nor file a petition to do so.

 

 

_____________________________________________________________________

 

9:01

10

CLJ 210175       ISI INVESTMENTS, LLC VS. FRANCISCO R. PORRAS

 

 

ISI INVESTMENTS, LLC                  TODD ROTHBARD

FRANCISCO R. PORRAS                   PRO/PER

 

 

DEMURRER TO COMPLAINT (UNLAWFUL DETAINER) of ISI INVESTMENTS, LLC AND MOTION TO STRIKE BY FRANCISCO R. PORRAS

 

 

·         Defendants’ demurrer to the complaint is OVERRULED. 

 

·         Demurrers are disfavored in unlawful detainer proceedings. Case law holds that a motion to quash and not a demurrer is the only proper procedure to test whether a complaint states a cause of action for unlawful detainer. Delta Imports, Inc. v. Municipal Court (1983) 146 Cal App 3rd 1033, 1036.

 

·         A demurrer tests the legal sufficiency of a pleading and raises only issues of law, not of fact, regarding the form or content of the pleading under attack.  A demurrer does not challenge the truthfulness of allegations in the pleading.  It assumes all facts pleaded are true, no matter how improbable. Serrano v. Priest (1971) 5 Cal. 3rd 584, 591.  Accordingly, no demurrer will lie unless the defect under challenge appears on the face of the complaint or through a matter subject to judicial notice.

 

·         Here, the defects do not appear on the face of the complaint. The Plaintiff seeks possession of the premises from the former owners following a foreclosure sale and the recording of a Trustee’s Deed Upon Sale. Plaintiff has properly alleged an unlawful detainer pursuant to CCP 1161a(b)(3). This includes allegations of a procedurally valid foreclosure sale with title perfected in plaintiff; service of an appropriate notice to vacate; and continued occupancy of the property by defendants after expiration of the notice. See complaint, paragraphs IV, V, VI and VII.

 

·         Plaintiff has thus pled all facts necessary to commence and continue a UD action following a foreclosure. The complaint is not uncertain and this demurrer is not well taken.

 

·         Defendant shall file an answer to the complaint no later than 2:00 p.m. on Tuesday November 4, 2014.

 

·         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

11

CIV 520889       ANA MARIA SANDOVAL VS. GREENPOINT MORTGAGE FUNDING

                   INC., ET AL.

 

 

ANA MARIA SANDOVAL                    VI KATERINA TRAN

GREENPOINT MORTGAGE FUNDING INC.      BRIAN S. WHITTEMORE

 

 

DEMURRER TO FIRST AMENDED COMPLAINT OF SANDOVAL BY NATIONSTAR MORTGAGE, LLC AND MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.

 

 

·         Defendants NATIONSTAR MORTGAGE, LLC and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.’s Demurrer to First Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND as to all causes of action, as follows:

 

·         As to the First cause of action for unfair business practices, on the ground that it fails to adequately state a claim as against these Defendants. 

 

Courts have described an unfair business practice as one that “offends an established public policy or when the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to customers.”  Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1170.  The courts must “weigh the utility of the defendant’s conduct against the gravity of the harm to the alleged victim.”  Id.  To state a claim for unfair business practices, a plaintiff must allege that defendant engaged in business conduct that was unfair, unlawful or fraudulent.  See Bus. & Prof. Code § 17200.  In doing so, plaintiff “must state with reasonable particularity the facts supporting the statutory elements of the violation.”  Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 619. 

Here, Plaintiff alleges only that she was offered and accepted a loan modification, but the documents attached to her FAC clearly indicate that the offer expired on November 30, 2012, and that she did not have her signature notarized until January 15, 2013.  Thus, she fails to allege how the subsequent foreclosure proceedings – conducted after she failed to respond to the loan modification offer in a timely manner – constitute an unfair business practice.  As Plaintiff has not shown in what manner she can amend the complaint and how that amendment will affect the pleading, leave to amend is denied.  Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.

 

·         As to the Second cause of action for fraud, on the ground that it lacks the requisite specificity for fraud claims, particularly as brought against a corporate defendant.  Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73; Tarmann v. State Farm Mutual Auto Insurance Co. (1991) 2 Cal.App.4th 153, 157.

 

·         As to the Third cause of action for quiet title, on the ground that Plaintiff has not alleged tender.  “A mortgagor of real property cannot, without paying his debt, quiet his title against the mortgagee.”  Miller v. Provost (1994) 26 Cal.App.4th 1703, 1707.  The offer of tender must be of the amount borrowed.  Arnolds Management Corp. v. Eischen (1984) 158 Cal.App.3d 575, 578.  The plaintiff must (1) demonstrate a willingness to pay and (2) show the ability to pay.  In re Worcester (9th Cir. 1987) 811 F.2d 1224, 1231. 

 

·         As to the Fourth and Fifth causes of action for emotional distress, on the ground that Plaintiff fails to allege conduct “so extreme as to exceed all bounds of that usually tolerated in a civilized community.”  Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209.

 

·         As to the Sixth cause of action for declaratory relief, on the ground that it sets forth no actual, present controversy for which declaratory relief is warranted.  Code Civ. Proc. § 1060; City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79. 

 

·         Defendants’ Request for Judicial Notice is GRANTED pursuant to Evid. Code § 452 and Fontenot v. Wells Fargo Bank (2011) 198 Cal.App.4th 256, 265.

 

·         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 Elizabeth K. Lee, Department 17.

 

 

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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

 

OCTOBER 30, 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 518553       MWKS PERRY STREET, LLC VS. PERRY STREET, LLC, ET AL.

 

 

MWKS PERRY STREET, LLC                RICHARD A. VAN'T ROOD

PERRY STREET, LLC                     SHEILA GROPPER NELSON

 

 

MOTION TO CONTINUE TRIAL DATE OR EXCUSE PARTY ATTENDANCE BY MWKS PERRY STREET, LLC

 

 

·         Appear. 

 

 

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9:00

2

CIV 526302       WILLIAM M. WINDSOR VS. FACEBOOK, INC.

 

 

WILLIAM M. WINDSOR                    PRO/PER

FACEBOOK, INC.                        JULIE E. SCHWARTZ

 

 

MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR A NEW CASE SCHEDULE BY FACEBOOK, INC.

 

 

·         Appear. 

 

 

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© 2014 Superior Court of San Mateo County