May 26, 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, May 23, 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

 

 

 

 

 

 

 

 

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16-CIV-02088     TREYANA PIERCE vs. BANK OF AMERICA, N.A., et al.

 

 

TREYANA PIERCE                         SARAH SHAPERO

BANK OF AMERICA, N.A.                  ANDREA MCDONALD-HICKS

ditech financial, llc                  GURINDER GREWAL

 

 

1. HEARING ON DEMURRER TO FIRST AMENDED COMPLAINT.

TENTATIVE RULING:

In ruling on Defendant Ditech Financial, LLC’s (DiTech) previous Motion for Judgment on the Pleadings, the Court admonished Ditech and its counsel for not including tabs between the exhibits in Ditech’s supporting Request for Judicial Notice, as required by CRC Rule 3.1110(f).  Yet Ditech filed with the present Demurrer the same Request for Judicial Notice, with the same exhibits, again with no tabs.  The Court will consider striking Ditech’s future filings to the extent they do not comply with the Calif. Rules of Court.  

Similarly, Ditech and its counsel are admonished to comply, going forward, with Code Civ. Proc. Sect. 2015.5 and CRC 3.1115 with respect to the format and contents of declarations.  Ditech’s supporting “C.C.P. Sect. 430.41 Declaration” should be a stand-alone document (CRC 3.1115).  It also does not comply with Code Civ. Proc. 2015.5, because it does not state where it was signed, or that it was executed under the laws of the State of California.  However, given the Demurrer is opposed and there appears to be no dispute the parties met and conferred, the Court will address the Demurrer on the merits.  

Ditech’s Demurrer as to the First Cause of Action for “negligence” is SUSTAINED WITH LEAVE TO AMEND.  Plaintiff is not the borrower.  Rather, she alleges Ditech owed her a duty of care, and breached it by refusing to communicate with her about the loan after BankofAmerica (BOFA) transferred servicing of the loan to Ditech.  FAC, Parag. 20.  She alleges that in April 2016, after providing Ditech, upon its request, with an Affidavit of Heirship, Ditech finally confirmed and recognized Plaintiff as the successor-in-interest on the loan.  FAC, Parag. 16.  The Court agrees Plaintiff’s “negligence per se” argument based on 12 CFR 1024.38, which as noted expressly does not create a private right of action, lacks merit.  Plaintiff provides no support for the contention that a regulation that expressly precludes a private right of action nonetheless gives rise to a negligence claim.  A contrary finding would essentially nullify the language stating the regulation does not create a right of action.  However, Plaintiff may have a cognizable claim against Ditech, if not for negligence, than otherwise.  As noted, the FAC alleges the loan was current until BOFA, in 2015, changed course and told Plaintiff, after accepting her payments for many months, that it would no longer accept her payments.  FAC, Parag. 29.  After the servicing was transferred to Ditech, Plaintiff allegedly provided Ditech with her father’s Death Certificate, evidence of her Heirship (as requested by Ditech), and the Court’s May 16 Order conditionally appointing Plaintiff the personal representative/estate administrator.  Although it is conditional on a bond, the FAC alleges the prior servicer, BOFA, accepted the May 16 Court Order as sufficient proof that Plaintiff is the estate administrator, and Ditech allegedly thereafter recognized Plaintiff as her father’s successor-in-interest.  FAC, Parag. 16.  Assuming these allegations are true, Plaintiff may have some cognizable claim against Ditech for refusing to speak with her and/or accept her payments.

Ditech’s Demurrer as to the Second Cause of Action for “violation of Civ. Code Sect. 2924c” is SUSTAINED WITHOUT LEAVE TO AMEND.  Code Civ. Proc. Sect. 2924c provides that a “trustor or mortgagor or his or her successor-in-interest in the mortgaged or trust property” may, up to five days prior to a non-judicial foreclosure sale, cure a default by paying the amount in default as stated in the Notice of Default.  Ditech previously moved for judgment on the pleadings as to this cause of action, which the Court sustained on grounds Plaintiff’s original Complaint did not allege Plaintiff is able to pay the amount in default, assuming she were permitted to make the payment.  The Court’s Order expressly granted leave to allow Plaintiff a further opportunity to allege the ability to pay the amount in default.  Plaintiff’s FAC again includes no allegation she is able to pay the amount due, but instead alleges she does not know the exact amount due because Ditech will not communicate with her.  Sect. 2924c refers to the amount due as stated in the Notice of Default, which was attached to Ditech’s prior Motion for Judgment on the Pleadings, and is again attached to Ditech’s Request for Judicial Notice supporting this motion.  The Notice of Default states that as of March 2015, the amount in default was $29,252.84.  It is true the current amount due may be considerably higher.  But Plaintiff, even given an additional opportunity to do so, is unable to allege the ability to pay even the $29,252.84 identified in the 2015 Notice of Default.  The purpose of Sect. 2024c is to enable a borrower, or a borrower’s successor-in-interest, to pay the full amount in default in order to reinstate the loan.  Plaintiff has no claim under Sect. 2924c where, as here, she cannot allege the ability to pay the amount due.

An amended complaint must be filed and served by June 16, 2017.

 

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. 

 

2. MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT.

TENTATIVE RULING:

 

Ditech’s Motion to Strike Plaintiff’s request for punitive damages is GRANTED.  The FAC alleges Ditech has refused to provide Plaintiff with information regarding the loan, or accept her payments, because she is not the borrower.  It also alleges because the loan is in default, Ditech recorded a Notice of Trustee’s Sale.  Plaintiff contends she provided Ditech with the May 16, 2015 Probate Court Order, which states it “is not effective until Letters have issued,” and requires a $155,000 bond.  There is no evidence the bond requirement was satisfied, or that Letters have issued.  Punitive damages are generally disfavored, and absent fraud, they require clear and convincing evidence of despicable conduct.  In this case, the Court finds Ditech’s alleged conduct cannot reasonably be characterized as constituting malice, fraud, or oppression under Civ. Code Sect. 3294.  

 

Ditech’s unopposed Motion to Strike Plaintiff’s request for attorney’s fees is GRANTED.  In general, attorney’s fees are recoverable only where authorized by contract or statute.  Code Civ. Proc. 1021; 1033.5(a)(10).  The FAC does not identify any contract between Plaintiff and Ditech, nor any statute that authorizes fees in this scenario.  And as stated, Plaintiff’s Opposition does not address the motion to strike the request for attorney’s fees.  

 

Ditech’s Request for Judicial Notice is GRANTED as to Exhs. A (Deed of Trust), B (Notice of Default), and D (Notice of Trustee’s Sale) (Evid. Code Sect. 452(h)), and GRANTED as to Exh. C (Court Order).  Evid. Code Sect. 452(d). 

 

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, defendant is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim 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: 3

16-CIV-02130     JEFF KAFKA vs. SELECT PORFOLIO SERVICES, INC., et al.

 

 

JEFF KAFKA                             PETER WINKLER

SELECT PORTFOLIO SERVICES, INC.         GWEN H. RIBAR

 

 

MOTION TO DISMISS CASE FOR FAILURE TO FILE AMENDED COMPLAINT, ETC.

TENTATIVE RULING:

 

It appears that plaintiff filed a Petition in the Bankruptcy Court, Northern District of California, #17-30013 and therefore this case is stayed pending that proceeding.

 

If Defendant appears and can show that the action is not stayed by the BK proceedings or that the stay has been lifted, the following order will be entered.

 

Defendant’s unopposed Motion to Dismiss is GRANTED. After the Court sustained Defendant’s demurrer to the complaint on Jan. 31, 2017, Plaintiff was granted ten (10) days to file an amended complaint. Plaintiff failed to file an amended complaint at any time since the ruling on the demurrer. Therefore, the motion is granted and the entire action is dismissed. 

 

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

LineS: 4 & 5

17-CIV-01281     DARA COMBES vs. GERMAN DE GUZMAN LISING

 

 

DARA COMBES                            Pro/PER

GERMAN DE GUZMAN LISING                FRANK S. MOORE

 

 

4. MOTION TO STRIKE PLAINTIFF’S COMPLAINT; TO SEAL RECORD; AND FOR AN AWARD OF ATTONEY’S FEES AND COSTS.

TENTATIVE RULING:

 

Defendant’s Motion to Strike the Complaint, Seal Record and for an Award of Attorney’s Fees and Costs, is GRANTED in part. 

 

The court orders that the entire court record, including both the file and online, be sealed, and that this case be re-named “Dara Combes v. Doe.”  The court finds that: (1) there exists an overriding interest that overcomes the right of public access to the record; (2) the overriding interest supports sealing the record; (3) a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) the proposed sealing is narrowly tailored; and (5) no less restrictive means exist to achieve the overriding interest.

 

The motion to strike is MOOT.

 

The motion for an award of attorney’s fees is DENIED.

 

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, defendant is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim 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.

 

 

 

5. HEARING ON DEMURRER TO PLAINTIFF’S COMLPAINT WITHOUT LEAVE TO AMEND AND FOR AN AWARD OF ATTORNEY’S FEES.

TENTATIVE RULING:

 

Defendant’s Demurrer is DROPPED as moot in light of the dismissal of this action on May 16, 2017. 

 

Defendant also seeks an award of attorney’s fees.  At the time that Defendant sought an award of fees, the case had not reached a conclusion in Defendant’s favor, and therefore such a motion was premature.  (See C.C.P. § 340.1(q).)  However, since Plaintiff has now dismissed this action, the court has reviewed Defendant’s motion, and DENIES the motion for attorney’s fees.  Defendant’s counsel’s declaration does not establish compliance with C.C.P. section 430.41 by meeting and conferring prior to filing this demurrer.  Had Defendant complied with this requirement, it appears that this demurrer would likely have been unnecessary given Plaintiff’s dismissal. 

 

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

 

 

MOTION TO STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT.

TENTATIVE RULING:

 

Defendant CAMPBELL ALLIANCE GROUP, INC.’s Special Motion to Strike Plaintiff’s First Amended Complaint is GRANTED pursuant to Code Civ. Proc. § 425.16.

 

A defendant specially moving to strike has the burden to show that the conduct underlying a cause of action arises from protected activity.  City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79.  Once this has been established, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the claim.  Zamos v. Stroud (2004) 32 Cal.4th 958, 965. 

 

Here, Defendant has successfully met its moving burden of showing that the conduct underlying Plaintiff’s four causes of action arises from protected activity.  The First Amended Complaint alleges, in great detail, that Defendant intimidated and harassed its former employees by threatening litigation, sending cease and desist letters, and bringing lawsuits against them.  (See FAC ¶¶ 3, 14, 35, 43, 47, 49, 55, 63, 70.)  These allegations are incorporated into and repeated in each cause of action, and the Prayer seeks an injunction prohibiting Defendant from “threatening current and former employees in California…with lawsuits and/or other pre-litigation dispute resolution procedures…”  (Prayer, ¶ 1(d).).  The filing of a lawsuit and other pre-litigation activity has been unequivocally held to be protected activity.  Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal.4th 1106, 1115.

 

The burden then shifts to Plaintiff to demonstrate the probability of prevailing on its claims.  However, in this case, Defendant has invoked the litigation privilege of Civil Code § 47(b) as an absolute defense.  Civil Code § 47(b) states, in pertinent part:

 

A privileged publication is one made: (b) In any…judicial proceeding, [..] in any other official proceeding authorized by law or [..] in the initiation or course of any other proceeding authorized by law. 

 

“The breadth of the litigation privilege cannot be understated.  It immunizes defendants from virtually any tort liability (including claims for fraud), with the sole exception of causes of action for malicious prosecution.”  Olsen v. Harbison (2010) 191 Cal.App.4th 325, 333.  It applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.”  Malin v. Singer (2013) 217 Cal.App.4th 1283, 1300.

 

Plaintiff argues that the litigation privilege applies only where the litigation is “contemplated in good faith and under serious consideration.”  Action Apartment Assn, Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1251.  However, Plaintiff fails to establish that Defendant’s litigation activity was not undertaken in “good faith” and “under serious consideration” here.  The declaration of Defendant’s Chief Operating Officer, Michael Menta, would indicate that Defendant considers carefully before deciding to pursue litigation against any of its former employees for alleged breaches of their employment agreements.  (Decl. Menta ¶¶ 17-19.) 

 

For purposes of an anti-SLAPP motion, “a plaintiff cannot establish a probability of prevailing if the litigation privilege precludes the defendant’s liability on the claim.”  Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 883.  Accordingly, the instant motion is GRANTED.

 

Defendant’s Request for Judicial Notice is GRANTED as to Exhibits A and B, and Supplemental Exhibits A and B.  Plaintiff’s Request for Judicial Notice is GRANTED as to Exhibit A. 

 

Plaintiff’s Evidentiary Objections are OVERRULED as to Objection Nos. 1-26.  Defendant’s Evidentiary Objections are SUSTAINED as to the First objection to the Declaration of Phillip Strach, and as to the Third and Sixth objection to the Declaration of Lujing Wang.  Defendant’s remaining objections to Mr. Wang’s declaration are OVERRULED.  

 

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, Defendant CAMPBELL is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim 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.

 



 

 

 

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, May 23, 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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CIV538042     STEVEN MATULAC VS. ARSALAN AHANI, ET AL.

 

 

STEVEN MATULAC                         DANE evy

A. AHANI, DDS, MD, INC                  MICHAEL KOWALSKI

 

 

Motion for Reconsideration OF COURTS ORDER ON MOTION TO CONTINUE TRIAL

TENTATIVE RULING:

 

This matter is continued to Thursday, May 25, 2017 as the Court is unavailable on Tuesday, May 23, 2017.

 

 


 

 

 

 

 

 


POSTED:  3:00 PM

 

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