March 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, March 21, 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-02617     IN RE: 1893 WOODLAND EPA, LLC

 

 

BEATRICE CECCATO                      PETER H. BONIS

1893 WOODLAND EPA, LLC                ANDREW C. CROSS

 

 

PETITION REVOKING TERMINATION FILING AND REINSTATING 1893 TO ACTIVE STATUS

TENTATIVE RULING:

 

The Petition filed by 1893 Woodland Epa, LLC is GRANTED.  The Certificate of Cancellation and Certificate of Dissolution filed with the Secretary of State on May 3, 2016 are both revoked and Petitioner is reinstated to active status.

 

Petitioner submits evidence that the Certificate of Cancellation and Certificate of Dissolution that were filed with the Secretary of State on May 3, 2016, were signed and filed by a person without authority to do so. Therefore, submitting the Certificates was “fraudulent” within the meaning of Government Code section 12261, subd. (a)(2).

 

Whether the failure to pay taxes should render Petitioner inactive or suspended is not an issue in the present Petition.

 

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, Petitioner 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.

 



9:00

Line: 2

CIV458258     DAVID MELCHER VS. ELIZABETH KARNAZES

 

 

DAVID MELCHNER                        Pro/per

ELIZABETH KARNAZES                    Pro/per

 

 

Motion for attorney’s fees

TENTATIVE RULING:

 

This matter is stayed pending resolution of defendant’s CCP Section 170.1 challenge.  As a result, the matter is continued to April 11, 2017 at 9:00 a.m. in the Law and Motion Department.

 



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Line: 3

CIV533576     COUNTY OF SAN MATEO VS. 2700 MIDDLEFIELD, ET AL.

 

 

COUNTY OF SAN MATEO                   JOHN D. NIBBELIN

2700 MIDDLEFIELD ROAD, LLC            RONALD D. FOREMAN

 

 

motion to quash OR MODIFY DEPOSITION SUBPOENAS OR IN ALTERNATIVE FOR A PROTECTIVE ORDER

TENTATIVE RULING:

 

This matter is continued to May 8, 2017 at 9:00 a.m. in the Law and Motion Department pursuant to filed stipulation and order.

                                     



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Line: 4

CIV534600     SONNY SIU VS. DAVID ZHANG

 

 

SONNY SIU                             JESSHILL E. LOVE

DAVID ZHANG                           DARIUS T. CHAN

 

 

Motion to enforce the parties settlement agreement

TENTATIVE RULING:

 

Plaintiff Sonny Siu’s unopposed Motion to Enforce Settlement Agreement is GRANTED.

 

The motion was properly served and is unopposed.  In their Dec. 15, 2016 Settlement Agreement, the parties agreed the Court would retain jurisdiction to enforce the Agreement under Code Civ. Proc. Sect. 664.6.  C. Thomason Decl., Parag. 2, Ex. A (Settlement Agreement, Sect. 13).  The Agreement provides for the construction of a property line fence and the removal and re-installation of a drainage system along the fence line. (Agreement, p. 2, parag. 2).  The bid that Plaintiff obtained from All Fence Company, Inc. (Project # 52430) for the work was deemed approved after Plaintiff forwarded it to Defendant on Jan. 13, 2017, and Defendant did not respond within seven days.  (Agreement, Sect. 2(a)(3)).  In fact, Defendant did not respond for over a month.  Plaintiff provided Defendant several opportunities to comply with the Agreement, but Defendant has refused to do so, even after notification that Plaintiff intended to file this motion.  Defendant has breached the Agreement, which provides for attorney’s fees in this scenario.  (Agreement, Parag. 12). 

 

The motion is granted in its entirety.  Defendant shall pay one-half the $20,205 cost of the work, per All Fence Company, Inc.’s bid, including one-half of the $2,020.50 down-payment.  Defendant shall also pay to Plaintiff $3,280 for attorney’s fees and costs incurred for this motion.

 

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, Plaintiff is directed to prepare, circulate, and submit a written order and Judgment reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order and judgment is to be submitted directly to Judge Richard H. DuBois, Department 16.

 



9:00

Line: 5

CIV535231     EVELYN A. MORALES VS. ALLIANCE BANCORP, ET Al.

 

 

EVELYN A. MORALES                     JONATHAN MATTHEWS

ALLIANCE BANCORP

DEMURRERING PARTIES                   SHARON BROWN

 

demurrer to First Amended Complaint

TENTATIVE RULING:

 

In ruling on demurrers, the court must “treat the demurrer as admitting all facts properly pleaded. Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal. 4th 962, 966-967. A complaint’s material factual allegations are presumed to be true, but this assumption may be rebutted or contradicted by attached documents or facts of which the Court may take judicial notice. CCP § 430.10(a). Although the allegations are presumed true, the Court does not accept bare legal conclusions as true for purposes of ruling on a demurrer. Serrano v. Priest (1971) 5 Cal. 3d 584, 591.

 

Defendants New Penn Financial, LLC dba Shellpoint Mortgage Servicing; The Bank of New York Mellon fka The Bank of New York, as Trustee for the Certificateholders of CWALT, Inc., Alternative Loan Trust 2007-ALI, Mortgage Pass-Through Certificates, Series 2007-ALI, and Mortgage Electronic Registration Systems, Inc.’s Demurrer to First Amended Complaint is ruled on as follows:

 

As to the first cause of action for declaratory relief, the demurrer is SUSTAINED WITH LEAVE TO AMEND. Tender is no longer the rule. If the Plaintiff alleges that the transaction was void, not merely voidable, then no tender is required to challenge the transaction. Yvanova v. New Century Mortgage Corp. (2016) 62 Cal. 4th 919, 929-930.

 

However, a properly conducted nonjudicial foreclosure sale constitutes a final adjudication of the rights of the borrower and lender. Nguyen v. Calhoun (2003) 105 Cal. App. 4th 428, 440-441. Plaintiff appears to contend that this foreclosure sale was not “properly conducted.” Plaintiff alleges that other acts were void or improper, such as the assignment of the Note and Deed of Trust among defendants, therefore Plaintiff is granted leave to amend this claim.

 

 

As to the second cause of action for slander of title, the demurrer is SUSTAINED WITH LEAVE TO AMEND. Recording foreclosure documents is a privileged act, therefore there can be no cause of action for it, unless the Plaintiff can plead that it was done with malice. The recording statutes do not provide an absolute privilege. Kachlon v. Markowitz (2008) 168 Cal. App. 4th 316, 339–40. Rather, they provide only a qualified privilege. Id. at 340-41.

 

When a complaint reveals a privilege, the plaintiff must plead facts establishing malice. “(A)ctual facts must be alleged, unless they are apparent from the statement itself.” Tschirky v. Superior Court (1981) 124 Cal.App.3d 534, 538-539. The “mailing, publication, and delivery of notices” required as part of the nonjudicial foreclosure process are privileged. Civ. Code sec. 2924(d)(1). Therefore, a plaintiff must also allege that the recording was done with malice, “motivated by hatred or ill will” or without reasonable grounds for belief in the truth of the publication...” See Kachlon, supra, 168 Cal.App.4th at 336. Therefore, Plaintiff is granted leave to amend this claim.

 

 

As to the third cause of action for fraud, the demurrer is SUSTAINED WITH LEAVE TO AMEND. To meet the specificity requirements, a plaintiff must plead “facts which show how, when, where, to whom, and by what means the representations were tendered.” Stansfield v. Starkey, (1990) 220 Cal. App. 3d 59, 73-74. To assert a fraud claim against a corporate defendant, Plaintiff must “allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.” Lazar v. Superior Court, 12 Cal. 4th 631, 645 (1996). Plaintiff is granted leave to amend to add facts to support her allegations of fraud with greater specificity.

 

 

As to the fourth cause of action for quiet title, the demurrer is SUSTAINED WITHOUT LEAVE TO AMEND. “[B]ecause the property has already been sold, quiet title is no longer an appropriate action to seek to undo the foreclosure. [The] claim to title has already been extinguished.” Distor v. US Bank N.A., 2009 US. Dist. LEXIS 98361, at *17 (N.D. Cal. 2009). This cause of action fails because the house has already been sold and there is no way to amend to state a cause of action.

 

 

As to the fifth cause of action for cancellation of instruments, the demurrer is OVERRULED. An instrument may be canceled because it was executed by a person lacking legal capacity (Civ. Code § 1556), if it is procured by fraud or undue influence, (Schiavon v. Arnaudo Bros. (2000) 84 Cal. App. 4th 374, 378), or if it is otherwise legally invalid (Ward v. Superior Court (1997) 55 Cal. App. 4th 60, 67). Plaintiffs must allege facts showing the invalidity of the document to state a cause of action for cancellation of instruments. Zakaessian v. Zakaessian (1945), 70 Cal. App. 2d 723, 725.

 

Plaintiff alleged that the instruments to be cancelled were void due to fraud because it was issued by MERS after the Note was sold without notice to Plaintiff by parties who were not owners of the Note. (FAC ¶ 77.) Whether Plaintiff can prove these allegations is not a question to be considered at the demurrer stage. For now, we assume that these facts are true.    

 

 

As to the sixth cause of action for violation of Homeowners’ Bill of Rights, the demurrer is SUSTAINED WITH LEAVE TO AMEND. Civ. Code sec. 2923.6 prohibits dual tracking only where a complete loan modification application is on file. The FAC merely claims that, “Plaintiff engaged in talks with Shellpoint to modify her loan.” (FAC ¶ 13.) Plaintiff is given an opportunity to provide supplemental facts to support her claim of dual tracking by alleging (if possible) that she had a complete loan modification application on file.

 

 

As to the seventh cause of action for violation of Business & Professions Code sec. 17200, et seq, the demurrer is OVERRULED. Plaintiff has sufficiently plead the fifth cause of action for cancellation of instruments based on fraud, therefore Plaintiff has plead an unfair or unlawful act.

 

 

As to the eighth cause of action for wrongful foreclosure, the demurrer is OVERRULED. A wrongful foreclosure is a common law tort claim. It is an equitable action to set aside a foreclosure sale, or an action for damages resulting from the sale, on the basis that the foreclosure was improper. Miles v. Deutsche Bank Nat’l Trust Co. (2015) 236 Cal. App. 4th 399, 408-409. The elements are: (1) The trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor tendered the amount of the secured indebtedness or was excused from tendering. Id. at 408. Mere technical violations of the foreclosure process will not give rise to a tort claim; the foreclosure must have been entirely unauthorized on the facts of the case. Id. at 409.

 

Only the entity currently entitled to enforce a debt may foreclose on the mortgage or deed of trust securing that debt. Yvanova v. New Century Mortgage Corp. (2016) 62 Cal. 4th 919, 928. “It is no mere ‘procedural nicety,’ from a contractual point of view, to insist that only those with authority to foreclose on a borrower be permitted to do so.” Id. at 938.

 

In this case, the house has already been sold at foreclosure sale. It appears that the Plaintiff’s argument is that the foreclosure was wrongful due to Defendants’ improper substitution and assignment of the Note and Deed of Trust, which in turn allowed an illegal sale of the house to take place. While it is less than clear pleading, the elements of wrongful foreclosure were plead.

 

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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Line: 6

CIV535494     HETTY KAN TULLOSS VS. MILLS-PENISULA HEALTH

 

 

MILLS-PENINSULA HEALTH SERVICES       JAHMAL T. DAVIS

HETTY KAN TULLOSS                     WILLIAM B. TULLOSS, JR.

 

 

Motion for protective order

TENTATIVE RULING:

 

The Motion of Defendant Mills-Peninsula Health Services (“Defendant”) for a Protective Order is CONTINUED to April 12, 2017 at 9:00 a.m. in the Law and Motion Department. 

 

Prior to the new hearing date, the parties are to meet and confer in person in a reasonable and good faith effort to resolve this dispute on an item-by-item basis.  The parties are to comply with the guidelines set forth in Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1434-1435.)

 

Plaintiff Hetty Kan Tulloss (“Plaintiff”) indicates she is no longer seeking testimony on all of the topics identified in Plaintiff’s Notice of Deposition of Person Most Knowledgeable (“notice”), nor is Plaintiff seeking all of the documents requested in the notice.  Therefore, when meeting and conferring, the parties should discuss on an item-by-item basis the “revised” topics and document requests identified in Plaintiff’s counsel’s February 6, 2017 letter.  The court is aware that Defendant’s position is that all of the document requests should be stricken, but the court finds no basis to simply strike ALL of the requests. 

 

During the meet and confer, the parties shall discuss the appropriate “persons most knowledgeable” with the understanding that the ultimate decision will be made by Defendant.

 

No later than 7 days prior to the new hearing date, the parties are to file status reports addressing: (1) the parties’ meet and confer efforts, (2) what specific topics and document requests, if any, remain in dispute, and (3) what specific topics and document requests have been resolved through the parties’ meet and confer efforts.

 

If the parties have resolved all the issues raised in the motion, then Defendant shall notify the court to take the motion off calendar.

 

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

Line: 7

CIV538047     JINAN FENG VS. JOANNA CHANG

 

 

JINAN FENG                            Pro/per

JOANNA CHANG                          Pro/per

 

 

MOTION TO SEEK LEAVE TO FILE A CROSS-COMPLAINT AGAINST PLAINTIFF JINAN FENG

TENTATIVE RULING:

 

Defendant JOANNA CHANG’s Motion for Leave to File Cross-Complaint is GRANTED. 

 

A cross-complaint may be filed by the original defendant or by anyone against whom a cross-complaint has been filed.  Code Civ. Proc. § 428.10.  It is treated as an independent action, “completely severable” from the issues raised by the original complaint and answer.  Weil & Brown, Cal Practice Guide: Civil Procedure Before Trial (The Rutter Group 2017), § 6:503. 

 

A defendant always has the option of asserting any cause of action he or she has against the plaintiff in a cross-complaint.  The cause of action need not be related to the subject matter of the plaintiff’s complaint in any way; the purpose of this is to allow the plaintiff and defendant to settle all of their differences in a single lawsuit.  Code Civ. Proc. § 428.10(a). 

 

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.

 

 


 

 

 

 

 


POSTED:  3:00 PM

 

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