March 4, 2015
Law & Motions Tentative Rulings
  • Law and Motion Department Tentative Ruling Line:  (650) 261-5019
  • Other Judges' tentatives: please reference the appropriate Case Number and Case Caption below and contact the appropriate department.

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

 

In the Superior Court of the State of California

In and for the County of San Mateo

 

Law and Motion Calendar

Judge: Honorable JOSEPH C. SCOTT

Department 25

 

400 County Center, Redwood City

Courtroom 2G

 

Tuesday, March 3, 2015

 

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

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

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

 

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

 

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

 

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

 

    Case                  Title / Nature of Case

9:00

1

CIV 490011       STEVE SMITH VS. CAROLE DELMAR, ET AL.

 

 

STEVE SMITH                           JAMES PAUL GREEN

CAROLE DELMAR                         DENNIS J. KELLY

 

 

MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY AJUDICATION BY CAROLE DELMAR, JIM ELLIOT AND CAFE REAL ESTATE, INC.

 

 

·         The Court notes that its review of this Motion for Summary Judgment/Adjudication was made extremely difficult and burdensome by the failure of both parties to follow the procedural requirements for summary judgment/adjudication motions set forth in the California Rules of Court.  Both parties failed to comply with CRC 3.1110(f), which requires that all exhibits be tabbed and CRC 3.1350(g), which requires that evidence over 25 pages be separately bound and contain a table of contents.  Defendants failed to number their written objections consecutively as required by CRC 3.1354(b).  Plaintiffs failed to unequivocally state whether each undisputed material fact was “disputed” or “undisputed” and did not always cite to evidence when disputing a UMF or cite to exhibits, title, page and line numbers in the evidence submitted as required by CRC 3.1350 (f). 

 

·         Plaintiffs' objections 3, 8, 18, 20, 21, 25, 30, 32, 39, 76, 78 and 83 are sustained and the remaining objections (1, 2, 4-7, 9-19, 22-24, 26-29, 31, 33-36, 38, 40-77, 79-82, and 84-106) are overruled.

 

·         Defendants’ objections to the declaration of James Green: objections 5-8 and 10-13 are sustained and objections 1-4, 9, and 14-11 are overruled.

 

·         Defendants' objections to the Anna Smith declaration: objections 12 and 18 are sustained and objections 1-11 and 13-17 are overruled.

 

·         Defendants' objections to the Steve Smith declaration: objections 1 (as to the last part of the 2nd sentence), 9 (as to the 1st sentence), 18, 24 (as to the 2nd sentence) and 26 (except for the last sentence) are sustained and objections 2-8, 10-17, 19-23, 25 and 27-32 are overruled.

 

·         Defendants' objections to the declaration of expert witness Lois Kasdosh:  objections 3-27, 40 and 46-50 are sustained and objections 1, 2 and 28-39 and 41-45 are overruled. 

 

·         Defendants' objections to Green declaration lodging additional documentary and deposition evidence: sustained as to items 3 (only as to the identified documents), 9, 11, 12 (Exhibit 12), 13-19, 21-25, 27-29 and 31-32.

 

·         Defendants' objections to Green declaration lodging Kadosh Deposition Testimony: sustained.

 

·         Defendants' and Plaintiffs' requests for judicial notice are GRANTED.

 

·         Defendants' Motion for Summary Judgment is DENIED.  Defendants have failed to demonstrate that there is no triable issue of material fact and thereby shift the burden to Plaintiffs. 

 

·         Summary adjudication is DENIED as to issue #1. Defendants have failed to demonstrate that there is no triable issue of material fact and thereby shift the burden to Plaintiffs.  As the trade was to be a subsequent transaction, it would not necessarily have been mentioned in the purchase agreement.  Even if Delmar advised Plaintiffs that they should have their attorney prepared the trade agreement that does not necessarily mean that Delmar did not owe Plaintiffs a duty to perfect the trade.  Furthermore, Plaintiffs have raised a triable issue of material fact by disputing Defendants’ UMF 7, 8 and 10 and raised additional disputed material facts i, k and n.

 

·         Summary Adjudication is DENIED as to issue #2. Defendants have failed to demonstrate that there is no triable issue of material fact and thereby shift the burden to Plaintiffs.  Defendants have not shown that they did not owe an independent duty as Plaintiffs' real estate agents to disclose what they knew.  Plaintiffs have raised a triable issue of material fact by disputing Defendants’ UMF 26, 28, 29, 30 and 36.

 

·         Summary Adjudication is DENIED as to issue #3. Defendants have failed to demonstrate that there is no triable issue of material fact as to whether Delmar owed a duty to Plaintiffs related to her deposition testimony in the specific performance action and thereby shift the burden to Plaintiffs. 

 

·         Summary Adjudication is DENIED as to issue #4.  Defendants have failed to demonstrate that there is no triable issue of material fact and thereby shift the burden to Plaintiffs.  Defendants failed to address Plaintiffs' allegations defendants were negligent in apprising Plaintiffs regarding the true conditions of the West Point lot or the various allegations in the fraud cause of action that defendant concealed facts such as defendants provided no disclosure data to Plaintiffs and concealed/suppressed adverse conditions including its lack of water, sewer access and wetlands status, the actual value of the West Point lot was substantially less than the purchase price, the West Point lot was in default and the seller would be unable to repay the $100,000 advanced.

 

·         Summary adjudication is DENIED as to issue #5. Defendants have failed to demonstrate that there is no triable issue of material fact and thereby shift the burden to Plaintiffs.  Defendants failed to address the allegations that Plaintiffs sustained damages in the loss of use and benefit of the contiguous Harvard Street lot, that the West Point lot was overpriced, that Plaintiffs are entitled to recover attorney's fees incurred in the specific performance case or that it is costing Plaintiffs more to store vehicles on the West Point lot.  Furthermore, Plaintiffs have raised a triable issue of material fact by disputing UMF 83.

 

·         Summary adjudication is DENIED as to issue #6. Defendants have failed to demonstrate that there is no triable issue of material fact and thereby shift the burden to Plaintiffs.  Defendants failed to address the allegation that Delmar represented defendants would secure the permission and consent of the Careys for Plaintiffs' substantial performance of the exchange agreement as a condition of Plaintiffs advancing and releasing funds to the West Point seller prior to the close of escrow and that defendants conceded they took no steps to secure the permission and consent of the Careys for Plaintiffs' substantial performance by early release of the escrow funds.  Plaintiffs have raised a triable issue of material fact by disputing UMF 118, 127, 132, 133, 134 and 136.

 

·         Summary adjudication is DENIED as to issue #7. “Questions of justifiable reliance constitute questions of fact which cannot be resolved when the facts are disputed.” [Ferguson v. City of Cathedral City (2011) 197 Cal. App. 4th 1161, 1170].    Defendants have failed to demonstrate that there is no triable issue of material fact and thereby shift the burden to Plaintiffs.   Plaintiffs have raised a triable issue of material fact by disputing UMF 142 and 143.

 

·         Summary adjudication is DENIED as to issue #8.  Defendants have failed to demonstrate that there is no triable issue of material fact and thereby shift the burden to Plaintiffs.   The amended complaint asserts Elliott was a real estate licensee associated with Delmar properties and made references to "defendants" conduct.  Plaintiffs have raised a triable issue of material fact by disputing UMF 147-149, 152, 154, 156, 158 159.

 

·         Summary adjudication is DENIED as to issue #9. Defendants have failed to demonstrate that there is no triable issue of material fact and thereby shift the burden to Plaintiffs.   Defendants failed to address all of the representations and concealments raised in the 2nd cause of action for fraud.  Furthermore, Plaintiffs have raised a triable issue of material fact by disputing UMF 161, 172 and 177.

 

·         Summary adjudication is DENIED as to issue #10.  Defendants have failed to demonstrate that there is no triable issue of material fact and thereby shift the burden to Plaintiffs.   Defendants have not addressed the losses Plaintiffs claimed they suffered from not being able to obtain the use of the Harvard lot for their business or the claim that Plaintiffs sustained legal expenses opposing the Carey's demand to vacate the Harvard lot.  Plaintiffs have raised a triable issue of material fact by disputing UMF 191 and 194.

 

·         Moving attorney is directed to prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and to provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court. The order is to be submitted directly to Judge Joseph C. Scott, Department 25.

 

_____________________________________________________________________


9:00

2

CIV 519761       KAREN WILSON VS. LAW OFFICES OF DAVID G. FINKELSTEIN

 

 

KAREN WILSON                          RUSSELL H. TOWNSEND

LAW OFFICES OF DAVID G. FINKELSTEIN   JERRY R. HAUSER

 

 

MOTION FOR SUMMARY JUDGMENT BY KIRBY BURNSIDE

 

 

·   To be heard by the Hon. Lisa A. Novak.

 

 

MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION BY LAW OFFICES OF DAVID G. FINKELSTEIN, APC, DAVID G. FINKELSTEIN AND BRUCE M. LUBARSKY.

 

 

·   To be heard by the Hon. Lisa A. Novak.

 

 

_____________________________________________________________________


9:00

3

CIV 524199       EDWARD SEPULVEDA, ET AL. VS. BANK OF AMERICA, NA,                 

                   ET AL.

 

 

EDWARD SEPULVEDA                      MAZEN SALFITI

BANK OF AMERICA                       MARK JOSEPH KENNEY

 

 

MOTION TO COMPEL RESPONSES BY EDWARD SEPULVEDA TO REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE AND REQUEST FOR MONETARY SANCTIONS BY SPECIALIZED LOAN SERVICING, LLC

 

 

·   All motions by Defendant Specialized Loan Servicing, LLC are ordered off calendar at the request of the moving party.

 

 

MOTION TO HAVE REQUESTS FOR ADMISSION, SET ONE UPON PLAINTIFF EDWARD SEPULVEDA, DEEMED ADMITTED AND REQUEST FOR MONETARY SANCTIONS BY SPECIALIZED LOAN SERVICING, LLC

 

 

·   See above.

 

 

MOTION TO COMPEL RESPONSES BY FLORA GARCIA-SEPULVEDA TO REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ON AND REQUEST FOR MONETARY SANCTIONS BY SPECIALIZED LOAN SERVICING, LLC

 

 

·   See above.

 

 

MOTION TO COMPEL RESPONSES BY EDWARD SEPULVEDA TO FORM INTERROGATORIES, SET ONE, SPECIAL INTERROGATORIES, SET ONE, AND REQUEST FOR MONETARY SANCTIONS BY SPECIALIZED LOAN SERVICING, LLC

 

 

·   See above.

 

 

MOTION TO HAVE REQUESTS FOR ADMISSION, SET ONE UPON PLAINTIFF FLORA GARCIA-SEPULVEDA, DEEMED ADMITTED AND REQUEST FOR MONETARY SANCTIONS BY SPECIALIZED LOAN SERVICING, LLC

 

 

·   See above.

 

 

MOTION COMPEL RESPONSES BY FLORA GARCIA-SEPULVEDA TO FORM INTERROGATORIES, SET ONE, AND SPECIAL INTERROGATORIES, SET ONE AND REQUEST FOR MONETARY SANCTIONS BY SPECIALIZED LOAN SERVICING, LLC

 

 

·   See above.

 

 

_____________________________________________________________________


9:00

4

CIV 525175       CRACE B. PANGILINAN VS. WILBERT ALVAREZ, ET AL.

 

 

GRACE B. PANGILINAN                   ANANT N. PRADHAN

WILBERT ALVAREZ                       CHARNEL JAMES

 

 

MOTION FOR SANCTIONS BY GRACE B. PANGILINAN

 

 

·         DENIED without prejudice. Moving party did not provide sufficient proof of service of the moving papers and the underlying discovery orders.  The subject proofs of service indicate all of these documents were served by email.  There is no indication Defendants agreed to accept electronic service by any of the methods set out in CRC 2.251(b)(1).  The declaration of Plaintiff’s counsel merely makes the conclusory assertion that they have agreed.  Furthermore, the proofs of service do not provide all of the information required by CRC 2.251(i).

 

·         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 530458       JANE FENG VS. ARTHUR J. LIU

 

 

JANE FENG                             PRO/PER

ARTHUR J. LIU                         PRO/PER

 

 

DEMURRER TO PLAINTIFF’S ENTIRE COMPLAINT WITH REQUEST FOR DISMISSAL

BY ARTHUR J. LIU

 

 

·         Defendant Arthur J. Liu’s Request for Judicial Notice is granted pursuant to Evidence Code §§452(d) and 453.

 

·         The Demurrer to Plaintiff’s complaint by Defendant Arthur L. Liu is SUSTAINED without leave to amend.

 

·         Plaintiff’s complaint for fraud is barred by the doctrine of res judicata. CCP §1908]. An existing final judgment on the merits of the case rendered by a court of competent jurisdiction is, in all subsequent actions between the same parties, conclusive of the rights of the parties and their privies on all material issues which were or might have been determined.[Eistrat v. J.C. Wattenbarger & Sons (1960) 181 Cal App 2d 57].

 

·         In addition, the action for fraud would be barred by the statute of limitations. In the earlier case [CIV 517130] the Court found that Plaintiff became aware of the fraud claims she had against Defendant no later than October 6, 2010. The statute of limitations for fraud is three years pursuant to CCP 338 (d) and this case was not filed until September 16, 2014 nearly four years from the October 6, 2010 date.

 

·         Demurring party is directed to prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court.  The order is to be submitted directly to Judge Joseph C. Scott, Department 25.

 

_____________________________________________________________________


9:00

6

CIV 531517       SULEYMAN UGUR, ET AL. VS. RASHMI GARG, M.D.

 

 

SULEYMAN UGUR                         JOSHUA J.K. HENDERSON

RASHMI GARG, M.D.                     VIRGIL F. PRYOR

 

 

DEMURRER TO PLAINTIFF’S COMPLAINT BY RASHMI GARG, M.D.

 

 

  • The Demurrer to Complaint by Defendant RASHMI GARG, M.D. is OVERRULED as to the Second Cause of Action for Negligent Infliction of Emotional Distress (NIED), which is asserted by Plaintiffs HEDIYE UGUR and BARAN UGUR, sisters of the Decedent. Plaintiffs sufficiently allege the elements of their NIED claim: (1) Plaintiffs are closely related to the injury victim; (2) were present at the scene of the injury-producing event at the time it occurred and were then aware that the event was causing injury to the victim; and (3) as a result of this observation and awareness, Plaintiffs suffered serious emotional distress. (See Ochoa v. Superior Court (1985) 39 Cal.3d 159, 170).

 

  • Demurring party is directed to prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court.  The order is to be submitted directly to Judge Joseph C. Scott, Department 25.

 

_____________________________________________________________________


9:00

7

CIV 531873       JANE DOE I VS. DANIELLE CHETRIT, ET AL.

 

 

JANE DOE I                            JIM ERICKSON

DANIELLE CHETRIT

 

 

MOTION TO PROCEED ANONYMOUSLY AS "JANE DOE I" AND "JANE DOE II”

 

 

·   Continued to March 24, 2015 at 9:00 a.m.on the Court’s motion.

 

 

_____________________________________________________________________


9:00

8

CIV 531912       MICHAEL A. CEVALLOS VS. COUNTY OF SAN MATEO

 

 

MICHAEL A. CEVALLOS                   PRO/PER

COUNTY OF SAN MATEO                   JOHN C. BEIERS

 

 

DEMURRER TO PLAINTIFF’S COMPLAINT BY COUNTY OF SAN MATEO

 

 

·         The unopposed Demurrer by Defendant County of San Mateo to the Plaintiff’s complaint is SUSTAINED without leave to amend.

 

·         First, Plaintiff has failed to allege compliance with the Government Claims Act. Plaintiff has failed to allege facts demonstrating or excusing compliance with the claims statute. Compliance with the Government Claims Act is required to bring suit for money or damages against a public entity. [State v. Superior Court of Kings County (Bodde) (2004) 32 Cal.4th 1234, 1240-41; Cal. Gov. Code § 945.4].

 

·         Second, Plaintiff has failed to satisfy the requirements for pleading a statutory violation. Plaintiff failed to plead a statutory basis of liability, which is required. [Zipper v. County of Santa Clara (2005), 133 Cal.App.4th 1013, 1020, citing 4 Witkin, Cal. Procedure (4th ed. 1997), Pleading § 579, pp.675-676, and Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 792-793]. Plaintiff made only rambling and incomprehensible allegations.

 

·         The complaint is also uncertain. A complaint must not be uncertain. [CCP § 430.10(f)]. Plaintiff’s Complaint is not only uncertain, it includes ambiguous and unintelligible pleadings.

 

·         Demurring party is directed to prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court.  The order is to be submitted directly to Judge Joseph C. Scott, Department 25.

 

_____________________________________________________________________


9:00

9

CLJ 210747       EQUITY RESIDENTIAL MANAGEMENT, LLC VS. VICTORIA  

                   CURZON

 

 

EQUITY RESIDENTIAL MANAGEMENT, LLC    JUSTIN BREWER

VICTORIA CURZON

 

 

MOTION TO QUASH SERVICE OF UNLAWFUL DETAINER SUMMONS AND COMPLAINT BY VICTORIA CURZON

 

 

·         Defendant Victoria Curzon’s unopposed Motion to Quash is GRANTED.  The Court’s decision is based upon Plaintiff’s failure to serve the Defendant with the Summons and Complaint in compliance with CCP §§415.10-415.45.

 

·         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.

 

____________________________________________________________________


9:01

10

CLJ 210802       REMEDIOS GARRIDO VS. CARLA FUENTES

 

 

REMEDIOS GARRIDO                      PRO/PER

CARLA FUENTES

 

 

MOTION TO QUASH SERVICE OF UNLAWFUL DETAINER

SUMMONS BY BARLA FUENTES

 

 

·         Defendant Carla Fuentes’ unopposed Motion to Quash is GRANTED.  Plaintiff did not provide a legally sufficient 30 day Notice to Terminate. The 30-Day notice served on Defendant is not proper because it did not make a clear demand for possession with no alternatives. [Turney v. Collins (1941) 48 Cal App 2d 381, 392]. The notice in this case, consisted of two notes provided by Plaintiff to Defendant that do not state that Defendant  must surrender possession of a specified premises but merely instruct her to “look for your own place.” One of the notes includes an alternative conditioned upon control of Defendant over the behavior of her child. Such a conditioned alternative prevents this note from being read as an unequivocal notice. Neither notice is sufficient because neither includes the required advisory regarding the right of the tenant to reclaim personal property pursuant to Civil Code §1946.1(h).

 

·         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.

 

____________________________________________________________________


9:01

11

CLJ 210610       EAGLE VISTA EQUITIES, LLC VS. JOSE ALBERTO BARBOSA,       

                   ET AL.

 

EAGLE VISTA EQUITIES, LLC             SAM CHANDRA

JOSE ALBERTO BARBOSA

 

 

MOTION FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION OF ISSUES BY

EAGLE VISTA EQUITIES, LLC

 

 

  • 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 Defendants’ right to possession pursuant to a 3-day notice to quit [CCP § 1161a] and the Defendants’ continuing possession. The burden then shifts to Defendants 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.

 

  • Moving party is directed to prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court.  The order is to be submitted directly to Judge Joseph C. Scott, Department 25

 

____________________________________________________________________


 

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 JOHN L. GRANDSAERT

Department 11

 

400 County Center, Redwood City

Courtroom 2D

 

Tuesday, March 3, 2015

 

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

 you must call (650) 261-5111 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 528024       CALDERA PROPERTIES, LLC VS. MICHAEL CHALHOUB, ET AL.

 

 

CALDERA PROPERTIES, LLC               CYNTHIA HACKLER

MICHAEL CHALHOUB                      CHARLES S. BRONITSKY

 

 

MOTION TO CONTINUE TRIAL BY CALDERA PROPERTIES, LLC

 

 

·         For good cause shown, the Motion to Continue is GRANTED.  The current Jury Trial date of July 13, 2015 is VACATED, and a new jury trial date of January 11, 2016 at 9:00 a.m. is set.  Discovery deadlines will reset based on new trial date.  Plaintiff to provide notice of this order to all parties.

 

_____________________________________________________________________


9:00

2

CIV 529287       JOSEPH LINDEMUTH VS. OCWEN LOAN SERVICING, LLC, ET

                   AL.

 

 

JOSEPH LINDEMUTH                      SARAH ADELAARS

OCWEN LOAN SERVICING, LLC             EDWARD R. BUELL

 

 

MOTION TO CONTINUE TRIAL AND RELATED DEADLINES BY JOSEPH LINDEMUTH

 

 

·         Pursuant to stipulation and for good cause shown, the jury trial set for June 8, 2015 is VACATED and reset to December 7, 2015.  Discovery deadlines will reset based on new trial date. Plaintiff to provide notice of this order to all parties.

 

_____________________________________________________________________


 

In the Superior Court of the State of California

In and for the County of San Mateo

 

Special Set Calendar

Judge: Honorable Lisa A. novak

Department 13

 

400 County Center, Redwood City

Courtroom 2C

 

Tuesday, March 3, 2015

 

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

3. YOU MUST CALL (650) 261-5113 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.  

 

    Case                  Title / Nature of Case

9:00

1

CIV 519761    KAREN WILSON VS LAW OFFICES OF DAVID FINKELSTEIN, ET AL.

 

 

KAREN WILSON                          DEAN C. ROSSI

LAW OFFICES OF DAVID FINKELSTEIN      JERRY R. HAUSER

 

 

MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION BY LAW OFFICES OF DAVID G. FINKELSTEIN, APC, DAVID M. FINKELSTEIN, BRUCE M. LUBARSKY AGAINST KAREN WILSON

 

 

·         Plaintiff’s Request of Judicial Notice as to all four exhibits is GRANTED.

 

·         No objections were set forth in a separate document in accordance with CRC 3.1354(b); as such the Court will not address objections.

 

·         The Motion for Summary Judgment is denied.

 

·         The alternative Motion for Summary Adjudication of Issues is denied as to all three issues.

 

·         This Motion attacks each of Plaintiff’s three claims by asserting a defense that they are all beyond the statute of limitations.  Key to the Court’s analysis is two issues:  1.) What is the conduct Plaintiff alleges forms the basis of the malpractice/breach?  2.)  When did the attorney-client relationship formally end?

 

·         Issues for Summary Judgment are framed by the pleadings. The Complaint, filed February 6, 2013, alleges that Defendants “failed to adequately advise Plaintiff in regard to the amounts owed to her,” advising her to settle “for far less than she was entitled to at law, or would have received if she had been properly advised . . . .” (1st Am. Comp. ¶ 7.) Defendant’s omission “resulted in the loss of substantial amounts.” (Id.) Further, the complaint alleges that Plaintiff first became aware of the consequences of the 2010 settlement after February 2012. (Id. ¶8.) Thus, Plaintiff’s claim is not that she was unaware that she waived spousal support. Rather, her claim is that she didn’t know the extent of what she waived when she agreed to it. (Id. ¶7 [alleging failure to advise “in regard to the amounts” owed to Plaintiff” and Defendants’ advice that Plaintiff settle for “far less than she was entitled” or would receive “had she been properly advised”].)

 

·         None of the moving evidence demonstrates how much spousal support Plaintiff waived by entering into the Settlement Agreement or the date when she discovered that the amount was not disclosed to her. The evidence sets forth the terms of the Agreement and the fact of the waiver, which are undisputed, but does not set forth the information Plaintiff contends Defendants failed to inform her about or when she discovered that information.  As such, Defendants have failed to meet their initial burden.  Having said that, the Court will nonetheless address issues raised by Defendants.

 

 

·         The First and Second Causes of Action were filed within the applicable one-year statute of limitations.

 

·         For claims arising from attorney neglect, the one-year statute of limitations begins to run “after the plaintiff discovers, or through the use of reasonable diligence should have discovered, facts constituting the wrongful act or omission.” (Code of Civ. Proc. § 340.6, subd. (a).)   It is of obvious import to determine when the attorney-client relationship was terminated in order to assess the merits of Defendants’ Motion.  Defendants filed a Notice of Withdrawal as Counsel on February 8, 2012, yet contend that the relationship actually ended long before then.  Without adopting Plaintiff’s argument that Defendants are precluded by collateral estoppel from arguing the date of termination of services, it is apparent that a triable issue of fact exists as to this date, and as such the Motion for Summary Judgment/Adjudication must be denied.  The Amended Order after Hearing issued by Commissioner Greenberg in case F 0362391 states that Defendant Lubarsky was the attorney of record from 2/11/10 until 2/08/12.  RJN B-3.  Moreover, as set forth in Plaintiff’s response, there is a triable issue of fact on this very issue as addressed in UMF 30 and 31. 

 

    

·         It is undisputed that the damage occurred in May 2010, when the agreement was signed. Under section 340.6, however, the occurrence of damage is relevant only to tolling, not to the time the statute begins to run. Here, the statute began to run when Plaintiff discovered or should have discovered that Defendants “failed to adequately advise Plaintiff in regard to the amounts owed to her.” (1st Am. Comp. ¶ 7The evidence alludes to approximately $39,000 owed as of 1996, but does not indicate the unpaid support that accrued from 1996 to 2010, which was waived under the May 2010 agreement. The Appellate Opinion in the Family Law matter states that the record shows “no further activity” between 1996 and 2010. (Defendant’s Exhibit 1-F at p.2).

 

·         Defendants’ Reply argues that “Ignorance of specific information in a plaintiff's possession does not toll the limitations period. It is the possession of information that is critical to the analysis of when the limitations period begins, not when a plaintiff reviews or even understands the significance of the document.” (Reply at 8:16-19.)  Regardless, the “specific information” Plaintiff alleges she lacked was not the fact of waiver, but the extent of spousal support she waived. The Motion does not address this specific information.

    

·         Because the Motion does not demonstrate the date when Plaintiff discovered or should have discovered that Defendants failed to inform her of the amount of spousal support owed to her, the Motion fails to demonstrate the date the statute began to run. Therefore, the Motion fails to show that the Complaint was filed more than one year after the statute began to run. Without a showing of when the statute began to run, the evidence and arguments pertaining to tolling need not be addressed. 

 

·         The Third Cause of Action is governed by a three-year statute of limitations.

 

·         Generally, the statute of limitations for breach of fiduciary duty by a trustee is three years. (Prob. Code § 16460.)  Defendants contend that the 3rd Cause of Action is subject to the one-year limitations period of Code of Civil Procedure section 340.6, which applies to attorney negligence. The one-year limitations period does not apply, because the claim is not based on malfeasance of legal duties. The complaint alleges that Defendants became trustees and then breached their duties by (1) failing to inform Plaintiff upon receipt of the funds, (2) failing to deposit the funds into a segregated account, (3) failing to disburse the funds in accordance with the terms of the trust, (4) initiating an interpleader action, (5) failing to settle the Interpleader Action in time for Plaintiff to receive the benefits of the trust funds,  and (6) seeking in the Interpleader Action to obtain a portion of the trust funds for their own use. (1st Am. Comp. ¶¶16 & 17.)

   

·         On its face, the complaint does not allege that the breach of fiduciary duty claim concerns any acts Defendants committed in their role as attorneys. The alleged acts could have been committed by a non-lawyer trustee. Contrary to Defendants’ assertion in their reply that there is no dispute that they never acted as trustee of the education trust, Plaintiff submits evidence that the $40,000 was received from Smith as “trust funds for the trust.”  AUMF 12.  The Motion does not offer any evidence that the above acts were committed in Defendants’ roles as lawyers. Therefore, the Motion fails to demonstrate that the one-year statute of limitations for attorney neglect applies.

 

·         Defendants’ Reply argues that the one-year statute applies when legal and non-legal services are "inextricably intertwined." (Reply at 8:24 – 9:18 [citing Quintillani v. Mannerino (1986) 62 Cal.App.4th  545].)  The Court in Quintillani found that some, but not all, of the actions were governed by CCP 340.6.  Not unlike the situation before this Court, the Appellate Court in that matter found:

·         This matter presents much the same scenario.  Defendants cite only the testimony of Smith. (Plaintiff’s Exhibit A-5.)  At most, this evidence shows only that Smith delivered the check to Defendant Lubarsky whom Smith knew to be representing Plaintiff on the issue of spousal support. It sheds no light on whether Mr. Lubarsky’s role in accepting the check involved any legal issues or activity. At a minimum, a triable issue of fact exists about whether Defendants’ acts as trustees were “inextricably intertwined” with their duties as lawyers.

 

·         If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiff shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court. 

 

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POSTED:  3:10 PM

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