October 1, 2014
Law & Motions Tentative Rulings
  • Law and Motion Department Tentative Ruling Line:  (650) 261-5019
  • Other Judges' tentatives: please reference the appropriate Case Number and Case Caption below and contact the appropriate department.

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In the Superior Court of the State of California

In and for the County of San Mateo

 

Law and Motion Calendar

Judge: Honorable ELIZABETH K. LEE

Department 17

 

400 County Center, Redwood City

Courtroom 2M

 

SEPTEMBER 30, 2014

 

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

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

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

 

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

 

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

 

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

 

    Case                  Title / Nature of Case

9:00

1

CIV 458258       DAVID MELCHNER VS. ELIZABETH KARNAZES

 

 

DAVID MELCHNER                        PRO/PER

ELIZABETH KARNAZES                    PRO/PER

 

 

MOTION FOR SUPPLEMENTAL ATTORNEYS' FEES AND COSTS BY JOHN J. HARTFORD

 

 

·         Judgment Creditor/Cross-Defendant JOHN J. HARTFORD’s Motion for Supplemental Attorneys’ Fees and Costs incurred from September 29, 2009 to April 30, 2010 is GRANTED pursuant to Code Civ. Proc. §§ 425.16(c), 685.040 and 685.080 as well as Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.

 

·         HARTFORD is awarded attorneys’ fees in the sum of $65,000.00 and costs in the amount of $1,369.00.  The Court has reviewed the records for the billing period of September 29, 2009 through April 30, 2010.  While it appears that Mr. Lee was quite busy responding to numerous motions filed by Ms. Karnazes and handling several ex parte applications, as well as a debtor’s examination and post-judgment discovery disputes, many of those motions and oppositions were repetitive of the same arguments advanced by Defendant earlier.  As explained in the previous hearing on attorneys’ fees, this is the reason why the Court is reducing the fee award to a more reasonable amount.  The Court has reduced the number of attorney hours from 274.60 to 200 hours to come up with the sum of $65,000.00 in attorneys’ fees.

 

·         Moving party is directed to prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court.  The order is to be submitted directly to Judge Elizabeth K. Lee, Department 17.

 

_____________________________________________________________________

9:00

2

CIV 522176       APPLIED UNDERWRITERS, INC., ET AL. VS. ARTISAN

                   BUILDERS, ET AL.

 

 

APPLIED UNDERWRITERS, INC.            MICHAEL K. PERKINS

ARTISAN BUILDERS                      BETTY J. LEVINE

 

 

MOTION TO STRIKE PORTIONS OF FIRST AMENDED CROSS-COMPLAINT BY APPLIED UNDERWRITERS, INC. AND CALIFORNIA INSURANCE COMPANY

 

 

·         See below.

 

 

DEMURRER TO FIRST Amended CROSS-COMPLAINT of ARTISAN BUILDERS BY APPLIED UNDERWRITERS, INC. AND CALIFORNIA INSURANCE COMPANY

 

 

·         Applied Underwriters, Inc. and California Insurance Company’s Demurrer to the First Amended Cross-Complaint on the ground of uncertainty is OVERRULED.  The fact that Powell obtained an insurance policy from California Insurance Company covering the period from April 1, 2013 to April 1, 2014 does not contradict the allegation that Powell obtained workers compensation coverage in April 2005.  Furthermore, the insurance policy attached as Exhibit A would have been the policy in effect at the time of Silva's injury.  Cross-Complainants have not alleged a breach of the SolutionsOne Services Agreement; therefore, that agreement is not an element of any cause of action in the Amended Cross-Complaint.  The failure to attach the SolutionsOne Services Agreement does not render the Amended Cross-Complaint ambiguous, uncertain or unintelligible or make it impossible for Cross-Defendants to determine what issues must be admitted or denied or what counts or claims are directed against them.

 

·         Applied Underwriters, Inc. and California Insurance Company’s Motion to Strike Portions of the First Amended Cross-Complaint is DENIED.  Cross-Complainants have alleged that the collateral agreement, not the workers compensation insurance policy itself, is illegal and unenforceable.  Under Insurance Code § 11660, while the policy itself is still in effect, enforceable and unlimited, any provisions or side agreements attempting to limit the policy which were not preapproved, and therefore in violation of the Insurance Code and Administrative Code, are unenforceable. 

 

·         Both parties' Requests for Judicial Notice are granted.

 

·         Applied Underwriters, Inc. and California Insurance Company have requested that the Court take judicial notice of the Directive from the California Department of Insurance dated 2/17/11 (Exhibit A) and the California Department of Insurance, Legal Division letter to the WCIRB dated 2/11/11 (Exhibit B).  Applied Underwriters, Inc. and California Insurance Company argue that judicial notice may be taken of the Directive and letter as official acts of the California Department of Insurance, which is an official Department of the State of California.  Evidence Code § 452(c) provides that judicial notice may be taken of "Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States."

·         Artisan argues that Applied Underwriters, Inc. and California Insurance Company previously sought judicial notice of the same directives in connection with their opposition to Powell's demurrer and motion to strike portions of the TAC.  The Court (Judge Joseph C. Scott) denied that request.  Applied Underwriters, Inc. and California Insurance Company’s attempt to again request the Court to take judicial notice of these documents that the Court has already ruled are improper is nothing short of contempt of the Court's prior order.

 

·         Judge Scott's prior order stated "the Court denies Plaintiffs' request for judicial notice of documents from the Department of Insurance as they are offered in support of their arguments regarding the SolutionsOne Agreement, which was already addressed on prior demurrer."  This order simply shows that the Court denied the request for judicial notice as it was not relevant to the issues being raised by the demurrer and motion to strike.  A re-review of the SolutionsOne agreement was moot given the prior order by Judge Lisa A. Novak.  It did not hold that judicial notice could not be taken of these documents under other circumstances.

 

·         Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 608 noted that two letters in which the Department of Insurance issued its approval of an insurance program were “official acts” properly noticeable under Evidence Code § 452(c). 

 

·         Artisan requests that the Court take judicial notice of (1) the 6/5/14 transcript of the proceedings for the oral argument on Powell's demurrer to the SAC, (2) the Court’s 7/11/14 order on Powell's demurrer to the SAC, (3) the 8/29/14 order on Powell's motion to strike and demurrer to Plaintiffs' TAC, (4) Applied Underwriters, Inc. and California Insurance Company’s opposition brief to Powell's demurrer to the TAC and (5) Applied Underwriters, Inc. and California Insurance Company’s request to take judicial notice in opposition to Artisan's demurrer to the TAC.  

 

·         Pursuant to Evidence Code § 452 (d), the Court may take judicial notice of "Records of (1) any court of this state".  In In re: A.M. (2013) 217 Cal.App.4th 1067, 1078, the Court took judicial notice of the hearing transcript. 

 

·         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 provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court.  The order is to be submitted directly to Judge Elizabeth K. Lee, Department 17.

 

_____________________________________________________________________

9:00

3

CIV 524787       WILLIAM D. BRICE, Ph.D. VS. MENLO COLLEGE, INC.

 

 

WILLIAM D. BRICE, PH.D.               CHARLES G. WILLIAMS

MENLO COLLEGE, INC.                   KATHERINE S. CATLOS

 

 

MOTION FOR JUDGMENT ON THE PLEADINGS BY MENLO COLLEGE

 

 

·         Defendant MENLO COLLEGE’s Request for Judicial Notice is GRANTED pursuant to Cal. Evid. Code § 452(c)-(d).

 

·         Defendant’s unopposed Motion for Judgment on the Pleadings is GRANTED in part and DENIED in part pursuant to CCP § 438(c)(1)(B). 

 

·         Defendant’s Motion for Judgment on the Pleadings is GRANTED as to Plaintiff’s 1st, 2nd and 3rd Causes of Action.

 

·         Plaintiff’s 1st and 2nd Causes of Action are dismissed without leave to amend.  Plaintiff failed to exhaust his administrative remedies under FEHA, which is a jurisdictional prerequisite to filing a civil suit.  Cal. Gov. Code § 12960; Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1613.  However, it is unclear if Plaintiff’s causes of action under FEHA are untimely as there is no clear date when the “alleged unlawful practice or refusal to cooperate occurred.”  Cal. Gov. Code § 12960(c).  Thus, Plaintiff may be able to bring these causes of action in a new suit provided he exhausts his administrative remedies. 

 

·         Plaintiff’s 3rd Cause of Action is dismissed with leave to amend.  Plaintiff’s 3rd Cause of Action is based on the underlying violations of FEHA, which are barred due to Plaintiff’s failure to exhaust his administrative remedies.  Thus, this cause of action must also be dismissed because a defense to the underlying cause of action is also a defense to the unfair business practice.  See Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 182. 

 

·         Defendant’s Motion for Judgment on the Pleadings as to Plaintiff’s 4th and 5th Causes of Action is DENIED. 

 

·         Plaintiff’s causes of action for Intentional Infliction of Emotional Distress and Implied Covenant of Good Faith and Fair Dealing are not barred by Plaintiff’s failure to exhaust either the internal grievance procedure at Menlo College or by his failure to exhaust his administrative remedies under FEHA.  Plaintiff’s claims are non-statutory and FEHA-related, thus Plaintiff is not required to exhaust his employer’s internal grievance procedures prior to filing a civil suit.  Williams v. Housing Auth. Of Los Angles (2004) 121 Cal.App.4th 708, 727.  Plaintiff may also bring non-statutory claims prior to or simultaneous to filing an administrative complaint with FEHA.  Rojo v. Kliger (1990) 52 Cal.3d 65, 88.  Further, Plaintiff’s Intentional Infliction of Distress cause of action is not barred by the Workers’ Compensation Exclusivity rule as Plaintiff did not allege any physical injuries.  Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 156.  Plaintiff has also stated sufficient facts to constitute a cause of action for Implied Covenant of Good Faith and Fair Dealing.  Defendant’s arguments are more properly reserved for a motion for summary judgment.

 

·         Defendant’s Request for Fees under FEHA is denied as Plaintiff’s causes of action were not frivolous.  Two out of five of Plaintiff’s causes of action survive this motion and must still be litigated by the parties. 

 

·         Moving party is directed to prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court.  The order is to be submitted directly to Judge Elizabeth K. Lee, Department 17.

 

_____________________________________________________________________

9:00

4

CIV 525736       S.J. AMOROSO CONSTRUCTION CO., INC. VS. R.J. LANTHIER

                   CO., INC., ET AL.

 

 

S.J. AMOROSO CONSTRUCTION CO., INC.   JANETTE G. LEONIDOU

R.J. LANTHIER CO., INC.               MARC S. SCHECHTER

 

 

MOTION TO COMPEL R.J. LANTHIER CO., INC.'S RESPONSES TO INTERROGATORIES AND DEMANDS FOR PRODUCTION OF DOCUMENTS; REQUEST FOR THE TRUTH OF THE MATTERS SPECIFIED IN REQUEST FOR ADMISSIONS BE DEEMED ADMITTED AND REQUEST FOR MONETARY SANCTIONS BY S.J. AMOROSO CONSTRUCTION CO., INC.

 

 

·         Defendant S.J. Amoroso Construction Co., Inc.’s unopposed Motion to Compel is GRANTED.

 

·         Defendant has not filed any opposition, and the Plaintiff has provided sufficient proof of service for the underlying discovery requests and this motion.  According to the declaration of Roger Liu, no responses have been received. 

 

·         Pursuant to CCP § 2033.280(c), sanctions are mandatory.  In addition §§ 2030.290(c) and 2031.300(c) state that the Court shall impose a monetary sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.  Given Defendant’s failure to oppose the motion, there are no facts to support a finding that the failure to respond was substantially justified nor that the imposition of sanctions would be unjust. 

 

·         Defendant shall provide verified responses to the interrogatories and requests for production of documents within 10 days.  The matters in the requests for admission are deemed admitted.

 

·         Defendant shall pay Plaintiff $1,277.50 within 10 days of the filing of the Court’s order. 

 

·         Moving party is directed to prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court.  The order is to be submitted directly to Judge Elizabeth K. Lee, Department 17.

 

_____________________________________________________________________

9:00

5

CIV 528132       DENNIS GARDNER VS. SAN MATEO COUNTY TRANSIT DISTRICT

 

 

DENNIS GARDNER                        SCOTT E. SPELL

SAN MATEO COUNTY TRANSIT DISTRICT     TODD H. MASTER

 

 

MOTION TO COMPEL DISCOVERY RESPONSES AND FOR SANCTIONS BY SAN MATEO COUNTY TRANSIT DISTRICT

 

 

·         This matter has been taken off calendar at the request of the moving party, Defendant San Mateo County Transit District.

 

_____________________________________________________________________

9:00

6

CIV 528860       ROSEMARY N. CHUKWUDEBE VS. PONGSRI LU, ET AL.

 

 

ROSEMARY N. CHUKWUDEBE                PRO/PER

CHRISTOPHER PIRRONE                   CHRISTOPHER PIRRONE

 

 

MOTION TO COMPEL PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUESTS FOR PRODUCTION OF DOCUMENTS BY AREG SARKISSIAN

 

 

·         Both of these motions have been continued to October 10, 2014 at 9:00 a.m. in the Law and Motion department to be heard after the Motion to Dismiss for Inconvenient Forum brought by Defendants A.O.E. Law and Associates is decided.

 

 

MOTION TO COMPEL PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUESTS FOR PRODUCTION OF DOCUMENTS BY STEVE S. GOHARI DBA LAW OFFICES OF STEVE S. GOHARI

 

 

·         Both of these motions have been continued to October 10, 2014 at 9:00 a.m. in the Law and Motion department to be heard after the Motion to Dismiss for Inconvenient Forum brought by Defendants A.O.E. Law and Associates is decided.

 

_____________________________________________________________________

9:00

7

CIV 529743       MARQUETTE SHURELDS VS. BANK OF AMERICA, N.A., ET AL.

 

 

MARQUETTE SHURELDS                    SARAH ADELAARS

BANK OF AMERICA, N.A.                 JASON M. RICHARDSON

 

 

DEMURRER TO COMPLAINT of SHURELDS BY BANK OF AMERICA, N.A.

 

 

·         Defendant Bank of America, N.A.’s Demurrer to Plaintiff's Complaint is OVERRULED.  Plaintiff has sufficiently alleged a duty (Alvarez v. BAC Home Loans Servicing, L.P. (2014) 228 Cal.App.4th 941) and damages in the form of late fees and foreclosure fees.

 

·         In Alvarez v. BAC Home Loans Servicing, L.P. (2014) 228 Cal.App.4th 941, 945-46, the 1st appellate district stated that the Nymark case cited by Defendant does not support the sweeping conclusion that a lender never owes a duty of care to a borrower; rather, the question of whether a lender owes such a duty requires the balancing of the Biakanja factors.  (Citing to Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872.)  Under Alvarez and using the Biakanja factors,  the Court concludes that Bank of America, N.A. had a duty to exercise reasonable care in handling Plaintiff's loan modification application, including transferring it to another servicer. 

 

·         Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 899 explained:

 

The Biakanja factors are six non-exhaustive factors: (1) the extent to which the transaction was intended to affect the plaintiff, (2) the foreseeability of harm to the plaintiff, (3) the degree of certainty that the plaintiff suffered injury, (4) the closeness of the connection between the defendant's conduct and the injury suffered, (5) the moral blame attached to the defendant's conduct and (6) the policy of preventing future harm.

 

·         These factors appear sufficiently here: (1) the transaction was intended to affect the plaintiff.  The decision on Plaintiff's loan modification application would determine whether or not he could keep his home; (2) the potential harm to Plaintiff from mishandling the application processing was readily foreseeable.  That loss involved the loss of an opportunity to keep his home.  Here, Plaintiff alleges that he is informed and believes that at the time of the transfer, he qualified for loan modification and would have received the modification but for the negligent transfer of the file to the new servicer.  Because of the negligent handling of the application, he is now faced with trumped up late fees and foreclosure fees; (3) the injury to Plaintiff is fairly certain.  Plaintiff alleges that because of the mishandling of the transfer, he now faces additional charges and foreclosure fees; (4) there is a close connection between Defendant's conduct and the injury actually suffered.  Plaintiff alleges that he was otherwise qualified and would have been granted the loan modification, but the failure to transfer the application precluded it from being timely processed.  Plaintiff alleges he had to submit a new application to SLS and, over the next year, re-submitted numerous documents.  Plaintiff has alleged that he incurred additional fees; (5) With regards to the 5th factor of moral blame, the Alvarez court stated:  "The borrower's lack of bargaining power coupled with conflicts of interest that exist in the modern loan servicing industry provide a moral imperative that those with the controlling hand be required to exercise reasonable care in their dealings with borrowers seeking a loan modification."  Id. at 949; and (6) with regards to the 6th factor, the Alvarez Court stated that "the policy of preventing future harm also strongly favors imposing a duty of care on defendants."  Id. at 950.  The Alvarez Court cited to the recently passed California Homeowner Bill Of Rights and noted that the California legislature has expressed a strong preference for fostering more cooperative relations between lenders and borrowers who were at risk of foreclosure so that homes will not be lost.  The Court noted that much of the conduct that the plaintiffs before it alleged breached a duty of care (failing to process the applications in a timely manner, dual tracking and losing documents) was conduct now regulated by the HBOR and that these obligations fell well within the duty to use reasonable care in the processing of the loan modification.

 

·         While neither side has presented any case law directly on point as to whether a loan servicer has a duty to transfer a pending loan modification application to a new servicer, the Court concludes that the Biakanja factors come down on the side of imposing a duty.

 

 

·         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 provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court.  The order is to be submitted directly to Judge Elizabeth K. Lee, Department 17.

 

_____________________________________________________________________

9:00

8

CLJ 516163       LVNV FUNDING LLC VS. SHAHRZAD BAKHTIARI

 

 

LVNV FUNDING LLC                      ANITA H. SINGH

SHAHRZAD BAKHTIARI                    FLORA GARCIA-SEPULVEDA

 

 

MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT BY SHAHRZAD BAKHTIARI

 

 

·         Defendant’s Motion to Vacate the Default and Default Judgment is granted pursuant to CCP § 473.5.  Defendant’s declaration establishes that she did not have actual notice of the action until August 11, 2014 and that she was not evading service.  Defendant shall file her proposed Answer within 5 days. 

 

·         To the extent that Defendant seeks relief under § 473(d) and/or seeks to quash service of the Summons and Complaint for lack of proper service, the motion is denied.  CCP § 415.20(b) permits substitute service at a defendant’s dwelling house, usual place of abode, usual place of business or usual mailing address.  Defendant’s declaration fails to show that the Summerhill address falls within none of these categories. 

 

·         Moving party is directed to prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court.  The order is to be submitted directly to Judge Elizabeth K. Lee, Department 17.

 


 

 

In the Superior Court of the State of California

In and for the County of San Mateo

 

Presiding Judge Law and Motion Calendar

Judge: HONORABLE ROBERT D FOILES

Department 21

 

400 County Center, Redwood City

Courtroom 2J

 

SEPTEMBER 30, 2014

 

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

 you must call (650) 261-5121 before 4:00 p.m. and you must give notice also before 4:00 p.m. to all parties of your intent to appear pursuant to California Rules of Court 3.1308(a)(1).

 

Case                   Title / Nature of Case

9:00

1

CIV 529735       MAURICE SANDOVAL VS. REDFIN CORPORATION

 

 

MAURICE SANDOVAL                      NORMAN B. BLUMENTHAL

REDFIN CORPORATION

 

 

COMPLEX CASE STATUS CONFERENCE

 

 

·         Appear.  

 


 

 

 

 


POSTED:  3:37 PM

 

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