April 25, 2017
Law & Motion Department Tentative Rulings
  • Law and Motion Department Tentative Ruling Line:  (650) 261-5019
  • Other Judges' tentatives: please reference the appropriate Case Number and Case Caption below and contact the appropriate department.

Telephonic Appearances (CourtCall): If an appearance is required or if a party has provided timely notice of intent to appear by 4:00 p.m. to the court and all parties, any party may appear telephonically through CourtCall. To do so, you must contact CourtCall at (888) 882-6878 no later than 4:30 p.m. on the court day prior to the hearing. Notifying CourtCall with your intent to appear is not an alternative to notifying the court. Please visit their website for more information. Please also see California Rule of Court No. 3.670.

 

In the Superior Court of the State of California

In and for the County of San Mateo

 

Law and Motion Calendar

Judge: Honorable RICHARD H. DuBOIS

Department 16

 

400 County Center, Redwood City

Courtroom 7A

 

Tuesday, April 25, 2017

 

NOTICE TO ALL COUNSEL

 

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

 

 

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

 

1. YOU MUST CALL (650) 261-5019 BEFORE 4:00 P.M. TO INFORM THE COURT OF YOUR INTENT TO APPEAR.

2. You must give notice before 4:00 P.M. to all parties of your intent to appear pursuant to California Rules of Court 3.1308(a)(1).

 

Failure to do both items 1 and 2 will result in no oral presentation.

 

Notifying CourtCall with your intent to appear is not an alternative to notifying the court.

 

All Counsel are reminded to comply with California Rule of Court 3.1110.  The Court will expect all exhibits to be tabbed accordingly. 

 

    Case                  Title / Nature of Case

 

9:00

Line: 1

16-CIV-00185     TOMMY T. WINSTON vs. BANK OF AMERICA, N.A., et al.

 

 

TOMMY T. WINSTON                       ROMEL AMBARCHYAN

Bank of America, n.a.                  tim g. ceperley

WILMINGTON SAVINGS                     PAVEL EKMEKCHYAN

 

 

Hearing on demurrer to second amended complaint BY WILMINNGTON

TENTATIVE RULING:

 

The Demurrer of Defendant Wilmington Savings Fund Society, FSB (“Defendant”), to the Second Amended Complaint (“SAC”) of Plaintiff Tommy T. Winston (“Plaintiff”), is ruled on as follows:

 

Defendant’s Request for Judicial Notice is GRANTED.

 

The Demurrer to the Cause of Action to Quiet Title, is OVERRULED.

Defendant demurs to this claim by alleging that Plaintiff has not alleged facts sufficient to support fraud.  (See Leeper v. Beltrami (1959) 53 Cal.2d 195, 214 [where the legal title is held in the defendant and plaintiff seeks to quiet title on the ground that defendant’s title was secured by fraud, the plaintiff must plead and prove facts constituting the fraud].)  A deed is voidable where the grantor is aware of what he or she is executing, but has been induced to do so through fraudulent misrepresentations. (Schiavon v. Arnaudo Brothers (2000) 84 Cal.App.4th 374, 378.) 

In contrast though, a deed is void if the grantor's signature is forged or if the grantor is unaware of the nature of what he or she is signing. (Id.)  Here, Plaintiff alleges facts sufficient to support all the elements of a quiet title claim, including sufficient facts to support the allegation of a void transfer resulting from fraudulent conduct. (See C.C.P. § 761.02.)  Plaintiff alleges that he did not transfer title to the property to Chuc Le, did not know anyone by this name, and did not know about the transfer of the property through the 2007 Grant Deed when he signed various documents for refinancing.  (See e.g., SAC ¶¶ 18-21, 45.) 

Further, Plaintiff is not required to allege tender of the debt.  Defendant seeks to foreclose on the 2007 Deed of Trust pursuant to which Le allegedly refinanced the property.  If the action attacks the validity of the underlying debt though, a tender is not required since it would constitute an affirmation of the debt.  (Onofrio v. Rice (1997) 55 Cal. App. 4th 413, 424.)  Here, Plaintiff is challenging the validity of the underlying debt on the ground that he never transferred the property to Le, who incurred the debt.

 

Defendant shall file and serve an answer to the SAC within twenty days of entry of this order.

 

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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16-CIV-00691    GERALDINE TEMPLO, et al. vs. JAMES SHI MING LU, et al.

 

 

MARK TEMPLO                            GEOFFREY BECKER

John chiang                            heather b. hoesterey

 

 

Motion to set aside default and request for penalties and sanctions against plaintiff’s counsel

TENTATIVE RULING:

 

Defendant John Chiang’s, served as Treasurer of the State of California, motion to set aside default is GRANTED pursuant to CCP §473(d).  Govt. Code §955.4(a) states, “Service of summons in all actions on claims against the state shall be made on the Attorney General.”  However, State Air Resources Board. v. Superior Court (1979) 93 Cal.App.3d 803 and House v. State (1981) 119 Cal.App.3d 861 indicate that Section 955.4 applies to tort claims and that where a complaint is not based in tort, service pursuant to CCP §416.50 is appropriate.  The claim asserted against defendant is not based in tort.  Therefore, service was required to be on the clerk, secretary, president, presiding officer, or other head of its governing body. 

Defendant’s request for sanctions is DENIED.  Defendant’s interpretation of Govt. Code §955.4 and the applicable case law was not unreasonable. (In fact, the CEB practice guide on Government Tort Liability opines that service under §995.4 might be appropriate).

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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17-CIV-00328     JAMES P. MALVEAUX vs. WELLS FARGO BANK, N.A., et al.

 

 

JAMES P. MALVEAUX                      pro/per

Wells fargo bank, n.a.                 Michael rapkine

 

 

Hearing on demurrer to complaint

TENTATIVE RULING:

 

Defendants’ demurrer is SUSTAINED as to all causes of action. Each cause of action fails to state a claim for which relief can be granted. LEAVE TO AMEND is granted for each cause of action except as to the third and seventh causes of action, for which no viable amendment appears possible. As to the third and seventh causes of action, the demurrers are SUSTAINED WITHOUT LEAVE TO AMEND.

 

The first cause of action (wrongful foreclosure) is based on the contention that the substitution of trustee is defective. (Comp. ¶ 67.)  The cause of action fails because it does not allege any facts to support the conclusion that Wells Fargo lacked authority to sign the Substitution.

 

The second cause of action (Quiet Title) alleges that Wells Fargo “is not a legitimate beneficiary” under the deed of trust because Plaintiffs’ note was securitized and sold. (Comp. ¶ 73.) The theory that securitization and sale of Plaintiff’s loan on the secondary market strips Defendants of the right to foreclose lacks support in California. (Lane v. Vitek Real Estate Indus. Grp. (E.D. Cal. 2010) 713 F. Supp. 2d 1092, 1099.)

 

The third cause of action (unjust enrichment) fails because unjust enrichment is not a cause of action. In addition, the claim is also premised on the securitization of Plaintiff’s loan, which is a legal theory without support in California. Finally, the complaint alleges no facts describing any unjust enrichment to Defendant.

 

The fourth cause of action (Civil Code section 2923.55) fails to allege a violation of section 2923.55(a). The Notice of Default contains a declaration stating compliance with the requirements of contacting the borrower (Section 2923.55(a)), and the complaint alleges no facts to rebut the presumption of compliance. Similarly, the complaint does not allege a violation of Section 2923.55(b)(1). The pleading admits that Wells Fargo’s predecessor provided plaintiff with copies of the promissory note and deed of trust, and it alleges that “Plaintiff is entitled to the assignments made during the securitization process.” (Comp. ¶ 86.)

 

The fifth cause of action (dual tracking; Section 2923.6) fails to state a cause of action because it merely cites the statute, but no facts constituting a violation of the statute. 

 

The sixth cause of action (unfair competition) fails to allege facts with particularity. (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal. 4th 1134, 1143.) Since the claim is premised on the foregoing causes of action, all of which are deficiently alleged, the sixth cause of action fails to state a claim. Further, the complaint fails to allege any loss of money or property, thereby failing to allege Plaintiff’s standing to assert a claim. (See Bus. & Prof. Code § 17204.)

 

The seventh cause of action (accounting) fails to allege that any sum of money is owed Plaintiff by Defendant. The purpose of the accounting is to discover what sums are owed to the plaintiff. (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 180.) Further, the complaint fails to allege any fiduciary or special relationship between Plaintiff and any Defendant that could support a claim for accounting. (See Jolley v. Chase Home Fin., LLC (2013) 213 Cal.App.4th 872, 910.) 

 

Plaintiff is granted leave of court until May 9, 2017, to file a First Amended Complaint as to only the first, second, fourth, fifth, and sixth causes of action, addressing the deficiencies set forth above. 

 

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 Richard H. DuBois, Department 16. 

 

 



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CIV516550     IAR SYSTEMS SOFTWARE, inc. VS. NADIM SHEHAYED, ET AL.

 

 

IAR SYSTEMS SOFTWARE, INC.             ANTONIO VALLA

NADIM SHEHAYED                         JEFFREY M. CURTISS

 

 

Further proceedings motion to proceed with civil case before criminal case in whole or in part; and/or to bifurcate two causes of action

TENTATIVE RULING:

 

Plaintiff’s motion is DENIED without prejudice at this time.  Trial of this action is set to begin on August 28, 2017 and there is no current indication that it will not proceed on that date.  A hearing before the Court of Appeal in the criminal case has apparently just been held and that may be resolved shortly.  It is premature to contemplate bifurcating causes of action or proceeding while the criminal case is still pending. 

 

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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Line: 5

CIV519845     KERA OAKLAND LLC, ET AL. VS GEORGE A. ARCE, JR.

 

 

KERA OAKLAND LLC                       SCOTT E. ATKINSON

GEORGE A. ARCE, JR.                    RUSSELL S. ROECA

GCCFC (NON-PARTY)                      MEAGEN LEARY

 

Motion to TRANSFER AND consolidate

TENTATIVE RULING:

 

Defendants George Arce, Jr., et. al.’s Motion to Transfer and Consolidate is DENIED.  While the parties to the two cases overlap, and both involve the Oakland property, the Court finds that the predominant factual and legal issues are different, and the proposed transfer and consolidation could result in unfair prejudice to non-party GCCFC.  Code Civ. Proc. Sect. 403, 404.1; CRC 3.500. 

 

The Alameda interpleader action involves a discrete issue:  entitlement to the Zurich insurance policy proceeds that were paid out due to 2015/16 vandalism to the Oakland property.  More specifically, the Alameda court is deciding whether GCCFC, the lender and secured creditor on the Oakland property, and which according to GCCFC was assigned all rights and interests in the policy proceeds and is named as the loss payee, is entitled to the proceeds. 

 

The Complaint in this case, while it also involves the Oakland property, alleges breach of contract and other various tort and accounting causes of action relating to activities prior to 2014 involving three separate properties co-owned by the Kera and Arce parties.  The Court is cognizant of the moving parties’ argument pertaining to the global settlement in this case and Kera Oakland’s alleged failure to timely submit an insurance claim to Zurich, but does not believe it changes the analysis on this motion to transfer.  The two cases clearly have some overlap.  But the discrete issue being litigated in Alameda is not a predominant issue in this case.      

 

GCCFC argues both unfair delay and prejudice in that the Alameda case was filed six months ago, and because Arce has filed papers in Alameda for months, including a Case Management Conference Statement that did not mention this case as being related.  Arce also attended a CMC in Alameda without mentioning this case.  While it does appear that the moving parties delayed to some extent in seeking a transfer, a more compelling fact is GCCFC’s pending summary judgment motion in Alameda County, filed a month ago (before this motion was filed), which is currently set for a hearing on June 13, 2017 before J. McGuiness, to whom the Alameda case has been assigned for all purposes.  He apparently also has held two Case Management Conferences.  The Court is sympathetic to GCCFC’s concerns that a transfer could cause delay and therefore prejudice, particularly in light of the pending MSJ in Alameda County.    

 

The Court has considered the parties’ evidence and argument regarding convenience of the parties, witnesses, and counsel, the status of both cases, judicial economy, the likelihood of promoting settlement, and the risk of duplicative or inconsistent rulings, and does not find them to weigh in favor of a transfer here.  Code Civ. Proc. 404.1. There is no real risk of an inconsistent judgment or ruling regarding entitlement to the insurance policy proceeds, as that issue is squarely before the Court in Alameda, and is not being adjudicated here.  The Oakland property is located in Alameda County.  If anything, for the witnesses to the vandalism and for Kera’s Property Manager, who appears to be a key witness in that case and who lives in Sacramento, Alameda County would be more convenient.  Ruddy Decl., Para. 12.  No party has argued that Alameda is inconvenient.  Because the transfer motion is denied, the Court need not address the arguments regarding consolidation under Code Civ. Proc. Section 1048. 

 

The Arce Defendants’ Objections to the Ruddy Decl., Para. 13, p. 2:17-20 (Ex. J) and Para. 19, p. 3:13-16 (Ex. O) are SUSTAINED.  The documents speak for themselves.  The Court has reviewed the documents and has not relied on counsel’s characterization of them.    

 

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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Line: 6

CIV530869     OLIVIER WASEM, ET AL. VS. FACEBOOK, INC.

 

 

OLIVIER WASEM                          KAREN P. KIMMEY

FACEBOOK, INC.                         ROSEMARIE T. RING

 

 

Motion to be relieved as counsel for plaintiffs’

TENTATIVE RULING:

 

The Motion by James Morando to be Relieved as Counsel for plaintiff Olivier Wasem is GRANTED.

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10.  If the tentative ruling is uncontested, Attorney Wasem is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order is to be submitted directly to Judge Richard H. DuBois, Department 16.

 

 



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Line: 7

CIV534865     MPSQUARED, LLC. VS. TOMAS O'TOOLE, ET AL.

 

 

MPSQUARED, LLC                         BRYAN SEAN MCKOWN

TOMAS O'TOOLE DBA KILROE               DANIEL A. SEROT

SANTOS & URRUTIA                       RICHARD BAUMAN

 

 

Motion to contest good faith settlement between plaintiff and santos & urrutia

TENTATIVE RULING:

 

Defendant and Cross-Complainant Tomas O’Toole dba Kilroe Construction’s Motion to Contest the Good Faith Settlement of Santos & Urrutia Associates, Inc. is GRANTED. The settlement between Santos & Urrutia Associates, Inc.  and Plaintiff is found to be not in good faith under Code of Civil Procedure, sec. 877.6, et seq. at this time. THIS RULING IS MADE WITHOUT PREJUDICE to Santos & Urrutia Associates, Inc. making a later application or motion for the determination that a settlement is in good faith under Code of Civil Procedure, sec. 877.6, et seq.

 

Under the statute, the burden of proof is on the party opposing the motion. Code Civ. Proc. sec. 877.6(d). Moving party has pointed out many deficiencies in the application presented to the Court. Therefore, at this time, the Court cannot make a determination of the good faith of the settlement between Santos & Urrutia Associates, Inc. and Plaintiff.  The court cannot determine whether the settlement is within a “reasonable range” of the settling party’s share of liabilities.

 

In the proposed settlement, there is no estimation of how much Plaintiff is likely to receive in total recovery, and how that might be allocated among different contractors or sub-contractors. Santos argues that proportional liability is not a simple percentage of the total recovery, because some issues were outside Santos’ scope of work. However, Santos does not provide its scope of work. There is no specificity as to the claims being made by Plaintiff against Santos.

 

Santos does not say whether Santos is the only structural engineer as a potential defendant. That would be important information for the Court to have, as that could limit Santos’ liability. 
 
Another significant issue is Santos’ ability and willingness to participate in discovery, if the good faith application is granted, as Santos will not be motivated to participate in the discovery process. At this point, Santos has not complied with the Special Master’s Pre-Trial Order No. 1, and if the settlement were determined to be in good faith at this time, then Santos would have no motivation to comply with or participate in discovery.
 

Defendant and Cross-Complainant Tomas O’Toole dba Kilroe Construction’s Request for Judicial Notice in support of its Motion to Contest Good Faith Settlement of Santos & Urrutia Associates, Inc. is GRANTED. The Court takes judicial notice of: (1) Cross-Defendant Santos & Urrutia Associates, Inc.’s Notice and Application for Good Faith Settlement Determination, filed on Feb. 27, 2017 in this case; (2) Plaintiff’s Complaint filed on July 31, 2016 in this case; (3) Plaintiff’s First Amended Complaint filed on Nov. 25, 2016 in this case; and (4) Defendant Kilroe’s Request for Entry of Default of Cross-Defendant David O’Toole dba DOT Construction filed on May 13, 2016 in this case.

 

Defendant and Cross-Complainant Tomas O’Toole dba Kilroe Construction’s Objections to Evidence in support of Cross-Defendant Santos & Urrutia Associates, Inc.’s Application for Good Faith Settlement Determination:

(1)Para. 2 of the Dec. of Richard K. Bauman in its entirety, pg. 2,

lines 4-11, including Exhs. A and B, and all references to the

entirety of Para. 2.

Kilroe objects because an attorney’s declaration regarding settling defendant’s liability is insufficient where it fails to provide specific supporting facts or expert opinion. Greshko v. County of Los Angeles (1987) 194 Cal. App. 3d 822, 834. Kilroe also objects because the statement constitutes a legal conclusion and an expert opinion.

 

Ruling on Objection (1): Overruled. The attorney’s declaration will be given the proper weight it is due.

 

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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CIV537205     ACSEL HEALTH, LLC. VS. CAMPBELL ALLIANCE GROUP, INC.

 

 

ACSEL HEALTH, LLC                      THOMAS M. MCINERNEY

CAMPBELL ALLIANCE GROUP, INC.           JONATHAN EDWARD SOMMER

 

 

8. hearing on demurrer

TENTATIVE RULING:

 

This matter is continued to May 23, 2017 at 9:00 a.m. in the Law and Motion Department.

 

 

 

9. Motion to dismiss

Tentative ruling:

 

This matter is continued to May 23, 2017 at 9:00 a.m. in the Law and Motion Department.

 



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Line: 10

17-UDL-00004     Duke Partners II LLC. vs. Andrew Young, et al.

 

 

Duke Partners II LLC                   SAM CHANDRA

Andrew Young                           MARC D. BENDER

 

 

motion for summary adjudication of issues

TENTATIVE RULING:

 

The Motion for Summary Judgment is DENIED for lack of sufficient notice.  The unlawful detainer action has been consolidated with the wrongful foreclosure action.  In this case, as in Martin-Bragg v. Moore (2013) 219 Cal.App.4th 367, defendant is entitled to raise issues regarding title to the property.  Given the consolidation, it would be improper to use the summary unlawful detainer procedures.

 

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

 

 



 

 

In the Superior Court of the State of California

In and for the County of San Mateo

 

Presiding Judge Law and Motion Calendar

Judge: Honorable susan irene etezadi

Department 18

 

400 County Center, Redwood City

Courtroom 2L

 

Tuesday, April 25, 2017

 

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

 you must call (650) 261-5118 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

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Line: 1

17-CIV-00812     CHRIS SANFORD vs. AS SOLUTION

 

 

CHRIS SANFORD                          ARTHUR W. AZEAR

AS SOLUTION

 

 

Complex Case Designation

TENTATIVE RULING:

 

The parties have stipulated to vacate the Complex Case Status Conference set for April 25, 2017. The Case Management Conference currently scheduled for June 23rd, 2017 at 9:00 a.m. shall remain. The parties further stipulate to submit a Joint Case Management Statement no later than June 16th, 2017 detailing the status of the case.

 



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Line: 2

CIV534457     SONIA ISHAC, ET AL. VS. LYNN HO TU

 

 

SONIA ISHAC                            ARA JABAGCHOURIAN

LYNN HO TU                             THOMAS J. MURRAY

 

 

Motion to Continue Trial Date

Notes:

 

The parties are ordered to appear.

 

 


 

 

 

 

 


POSTED:  3:00 PM

 

© 2017 Superior Court of San Mateo County