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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 LISA A. NOVAK
400 County Center, Redwood City
MARCH 4, 2014
IF YOU INTEND TO APPEAR ON ANY CASE ON THIS CALENDAR YOU MUST DO THE FOLLOWING:
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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
CIV 506167 BRUCE BLANKENHORN VS. QUALITY LOAN SERVICE CORPORATION, ET AL.
BRUCE BLANKENHORN BEAU EPPERLY
QUALITY LOAN SERVICE CORPORATION
DEMURRER TO 4th Amended COMPLAINT of BLANKENHORN BY RICHARD LEE GEISNGER
· Defendant Geisinger’s demurrer to the 4th cause of action to quiet title is SUSTAINED WITH LEAVE TO AMEND.
· Both parties’ requests for judicial notice are granted.
· The allegation in ¶84, that plaintiffs are the legal owners of the property is contradicted by other allegations, incorporated by reference into this C/A, that plaintiffs “lost” the property [see paragraph 60]. Factually or legally inconsistent allegations are permissible, but each version of the facts or each legal theory should be pleaded in a separate C/A in the complaint.
· Defendant Geisinger’s demurrer to the 7th, 8th and 9th C/A, which are not alleged against Geisinger, overruled.
DEMURRER TO 4th Amended COMPLAINT of BLANKENHORN BY DANIEL J. ROSENBLEDT
· Defendant Rosenbledt’s demurrer to the 5th cause of action for Declaratory Relief is SUSTAINED WITHOUT LEAVE TO AMEND. While the plaintiffs have sufficiently alleged that an actual controversy exists [see analysis relating to the 7th-9th causes of action], this appears to be a way of creating a cause of action for the determination of issues alleged in the 7th, 8th and 9th causes of action. As such, it is merely duplicative and unnecessary.
· Defendant Rosenbledt’s demurrer to the 7th, 8th and 9th C/A (Order Vacating and Setting Aside Trustee's Sale, Order Vacating and Setting Aside Trustee's Sale (Equitable Estoppel), Cancellation of Void Trustee's Deed upon Sale) is OVERRULED.
· If a purchaser is a bona fide purchaser, failure to allege tender renders these claims moot, for tender is a condition precedent to setting aside a trustee sale. Defendant contends he is a bona fide purchaser. However, Plaintiffs alleges that he was not a bona fide purchaser for value, and as such they are not required to allege tender. [para. 126-129]. This court points out that Plaintiffs, in their papers, misstate Judge Buchwald’s tentative of 2/9/2012 in ruling on Co-Defendant EMC’s demurrer to the FAC, for the Court did not hold that plaintiff’s need not alleged tender as they alleged Defendant fraudulently engaged in the conduct of robo-signing. The language from the minute order of that date on this issue states:
…THE DEMURRER TO THE FOURTH CAUSE OF ACTION FOR WRONGFUL FORECLOSURE IS OVERRULED. CONTRARY TO EMCS CONTENTION, GOMES V. COUNTRYWIDE HOME LOANS, INC. (2011) 192 CAL.APP.4TH 1149, 1155-56, IS INAPPOSITE BECAUSE PLAINTIFFS SPECIFICALLY ALLEGE THAT BASED ON THE FRAUDULENT CONDUCT OF ROBO-SIGNERS THE ENTITY THAT INITIATED THE FORECLOSURE LACKED THE AUTHORITY TO PROCEED WITH THE FORECLOSURE.…
THE DEMURRER TO THE SEVENTH, EIGHTH AND NINTH CAUSES OF ACTION ARE OVERRULED. THE DEMURRER TO THESE CAUSES OF ACTION IS BASED ON THE SAME RATIONALE SET FORTH IN SUPPORT OF THE DEMURRER TO THE FOURTH CAUSE OF ACTION AND REJECTED FOR THE SAME REASONS.…
· There is no indication the court considered the issue of tender. Be that as it may, the claims as plead are sufficient.
· Defendant Rosenbledt’s demurrer to the 10th c/a for violation of CC 2924h(g) is OVERRULED. Plaintiffs have sufficiently alleged that Rosenbledt engaged in conduct violating of CC §2924h(g) in regards to the subject property and the demurrer to this C/A should be overruled.
· Plaintiffs allege that Rosenbledt offered to accept and accepted from another consideration to fix and restrain bidding on the Subject Property in this case. Rosenbledt's violations of the federal criminal statutes (as charged in the federal Information) and California Civil Code section 2924h(g) resulted in his being able to obtain title and possession of the subject property at a Trustee's Sale by paying only half of the value of that property. Rosenbledt was successful in ensuring that he would be the winning bidder at the auction. (¶154)
· The demurrer to the 11th cause of action for Declaratory Relief is SUSTAINED WITHOUT LEAVE TO AMEND. This appears to be a duplicative claim as that set forth in the 10th Cause of Action.
DEMURRER TO 4th Amended COMPLAINT of BLANKENHORN BY EMC MORTGAGE CORPORATION
· EMC’s Requests for Judicial Notice are granted.
· The demurrer as to the 4th C/A for promissory estoppel is sustained without leave to amend. Plaintiff concedes this issue.
· Defendant EMC’s demurrer to the 1st, 3rd, 5th, 6th, 7th, 8th and 9th causes of action as to Mr. Blankenhorn on the ground of Mr. Blankenhorn's lack of standing is sustained without leave to amend. (CCP §430.10(d))
· On July 11, 2013, Judge Buchwald heard and granted EMC's motion for judgment on the pleadings to the 3rd amended complaint with leave to amend, finding that the claims raised in these causes of action passed to the bankruptcy trustee upon Mr. Blankenhorn's filing for Chapter 7 bankruptcy on May 11, 2011. Judge Buchwald found that the trustee had not abandoned the claims as they were not scheduled in Mr. Blankenhorn's bankruptcy petition. Mr. Blankenhorn was given some 3 months leave to amend to either (1) substitute the trustee as real party in interest or (2) show that the claims had been abandoned. In the 4th amended complaint, Mr. Blankenhorn has neither substituted the bankruptcy trustee as real party in interest nor shown that the claims have been abandoned via one of the 3 methods set forth in 11 USC §554. The correspondence he provided between him and the now-discharged trustee does not satisfy 11 USC section 554. Simply declining to substitute in as the real party in interest is not an authorized method is abandoning the claims. Just Film, Inc. V. Merchant Services, Inc. (N.D. Cal. 2012) 873 F.Supp.2nd 1171.
· Property of a bankruptcy estate can be abandoned by three methods: (1) After notice and hearing, the trustee may unilaterally abandon property that is “burdensome or of inconsequential value” (11 U.S.C. § 554(a)); (2) After notice and hearing, the court may order the trustee to abandon such property (11 U.S.C. § 554(b)); (3) Any property which has been scheduled, but which has not been administered by the trustee at the time of closing of a case, is abandoned by operation of law. (11 U.S.C. § 554(c).) Property that is neither abandoned nor administered by the bankruptcy trustee remains property of the bankruptcy estate; there is no abandonment without notice to creditors. Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995; Sierra Switchboard Co. v. Westinghouse Elec. Corp and. (9th Cir. 1986) 789 F.2d 705, 709-10.
· The demurrer to the 1st, 3rd, 5th, 6th, 7th, 8th and 9th causes of action as to Mr. Blankenhorn on the ground of judicial estoppel is also sustained without leave to amend. (CCP §430.10 (e))
· A party is within its rights to successively demurrer to a cause of action in an amended pleading notwithstanding a prior unsuccessful demurrer to that same cause of action. Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App. 4th 1020, 1036.
· Mr. Blankenhorn's failure to disclose a lender liability claim in his bankruptcy proceedings precludes him from later litigating that same claim. Just Film, Inc. V. Merchant Services, Inc. (N.D. Cal. 2012) 873 F.Supp.2nd 1171, 1177-78; Hamilton V. Greenwich Investors XXVI, LLC (2011) 195 Cal.App. 4th 1602, 1609-10. Plaintiff’s claims should have been listed in his bankruptcy petition. A finding of bad faith is not required in lender liability cases. Id. at 1613. To the extent that the prior ruling of Judge Buchwald suggested that such a finding was required, this Court declines to adopt any such requirement.
· Moving attorneys are 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 Lisa A. Novak, Department 13.
CIV 518743 LESLIE MARK GAMMILL VS. SIERRA ENTERPRISES, INC., ET AL.
LESLIE MARK GAMMILL SARAH A. BROOKS
SIERRA ENTERPRISES, INC. MARK D. HUDAK
MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT BY LESLIE MARK GAMMILL
· Plaintiff’s unopposed motion for leave to file first amended complaint is granted per CCP 473(a).
CIV 519417 CHRISTOPHER GHISELIN VS. PAULS ROLLINS ROAD, LLC
CHRISTOPHER GHISELIN MICHAEL R. SOLOMON
PAULS ROLLINS ROAD, LLC JAMES J. ZENERE
MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION OF ISSUES BY PAULS ROLLINS ROAD, LLC AGAINST CHRISTOPHER GHISELIN
· The motion for summary judgment is denied. The alternative motion for summary adjudication is denied as to all issues.
· The court sustains Defendant’s Objections 1, 2, 5, 6, 8, 12, 13, and 14.
· The court overrules Defendant’s Objections 3, 4, 7, 9, 10, and 11.
· The court sustains Plaintiff’s objection 1, and overrules Plaintiff’s objections 2, 3, and 4. Counsel is reminded to submit objections in a format required by 3.1353(c). Counsel shall provide at the hearing a proposed order.
· In general, a landlord has no liability for injuries resulting from a dangerous condition on the premises which comes into existence after the tenant has taken possession. An exception may when the landlord retains or acquires a degree of control over the premises. At the time a lease is executed or renewed, a landlord has a right to reenter the property, has control of the property, and must inspect the premises to make the premises reasonably safe from dangerous conditions. (Mora v. Baker Commodities, Inc. (1989) 210 Cal.App.3d 771, 781.)
· Under these circumstances, “the duty to inspect charges the lessor ‘only with those matters which would have been disclosed by a reasonable inspection.’” (Mora, supra, at 782.) “When there is a potential serious danger, which is foreseeable, a landlord should anticipate the danger and conduct a reasonable inspection before passing possession to the tenant. However, if no such inspection is warranted, the landlord has no such obligation.” (Id.) Therefore, the ultimate issues are:
· 1. Did the loading dock door constitute a “potentially serious danger, which is foreseeable?” If not, then Defendant Pauls Rollins Road had no duty to conduct a reasonable inspection of the door.
· 2. If rollup door was a foreseeable potentially serious danger, did Defendant Pauls Rollins Road conduct a reasonable inspection?
· Defendant’s motion offers no evidence on whether the door posed a potentially serious danger or whether it was foreseeable. Defendant offers evidence of only what it learned (or didn’t learn) from Mr. Hixon’s inspection, but no evidence about loading dock doors in general and the potential for danger. With no evidence or argument on that issue, Defendant does not meet its burden. For this motion only, therefore, the Court must presume that the door was a potentially serious danger and was foreseeable. A duty of to inspect existed.
· As to the second issue, Defendant Pauls Rollins Road offers the testimony of J. C. Hixon, who testifies that he conducted a visual inspection, interviewed several tenant representatives, and reviewed a 2006 inspection report. He also visited the property every four to six weeks and inquired about any problems at the property. Mr. Hixon testifies, “I did not observe, nor was I made aware, of any problems with the loading dock doors or the loading dock area” during any of those visits. (Declaration of Hixon ¶¶ 6 & 7.)
· Mr. Hixon’s testimony does not compel a necessary conclusion that the inspection was reasonable. Triers of fact could reach different conclusions about whether the inspections were reasonable. In addition, Plaintiff offers testimony by a worker who occasionally used a broom stick or pallet parts to hold the door open (Declaration of Prado ¶ 4); another employee witnessed the door drop on its own without warning on several occasions and another time saw a wooden pallet propping it up (Declaration of Lal ¶¶ 2 & 3); and Plaintiff himself witnessed his supervisor using a broom stick to prop the door open. (Declaration of Ghiselin ¶ 2.) Weighing this testimony, a trier of fact could reasonably conclude that Mr. Hixon’s inspection, which failed to discover a malfunctioning door, was not reasonable.
· Defendant contends that because of the size of the building (approximately 250,000 square feet) “There was no way Mr. Hixon would have been able to personally inspect the premises or determine every defect at the premises.” (Reply P & A 6:1-4.) The issue, however, is not whether one man (Mr. Hixon) acted reasonably. The issue is whether Defendant Pauls Rollins Road’s inspection was reasonable. If it is true that “there was no way” for Mr. Hixon to inspect the entire property by himself, a trier of fact could conclude that, a reasonable inspection required more than just one person.
· Whether Defendant’s inspection of the property for potentially serious dangers was reasonable is a triable issue of material fact. Therefore, the Court cannot determine as a matter of law that Defendant had not duty to repair the loading dock door.
· Defendant’s argument that it had no duty to warn fails to support summary judgment, because it does not dispose of any cause of action.
· If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiff shall prepare for the Court’s signature a written order.
CIV 521495 DAVID BOYD VS. WILLIAM BOYD
DAVID BOYD MICHAEL D. LIBERTY
WILLIAM BOYD ANNE MARIE MURPHY
MOTION TO COMPEL THIRD PARTY DOCUMENT AND REQUEST FOR SANCTIONS BY DAVID BOYD
· Plaintiff’s Motion to Compel Third Party Document Production From HUB International is GRANTED because Plaintiff has demonstrated good cause for documents that reflect the ownership interest (or lack thereof) of David Boyd and/or William Boyd in Epicure Imports, Inc. However, the Court does believe some limitation in what is being compelled is warranted based upon the issue identified by Plaintiff as to the reason for the subpoena, namely whether documentation in the custody of HUB identifies who had an ownership interest in Epicure at various times. Therefore, HUB International is ordered to produce responsive documents as follows:
· “All documents since 2004 relating to Epicure Imports, Inc. that in any way set forth the ownership interests or percentages in Epicure Imports, Inc.
· All documents since 2004 relating to Epicure Imports, Inc. that designate names of those individuals holding positions of director, officer, member, and/or manager. All names except William Boyd and/or David Boyd may be redacted.”
· The request for sanctions by both Plaintiff and HUB is denied.
· Plaintiff shall submit an order per CRC 3.1312 directly to Department 13, Judge Novak, for signature. The documents shall be served within 15 days after service of Notice of Entry of Order.
CIV 521554 TOM JOHNSTONE VS. WALSCHON FIRE PROTECTION, INC.
TOM JOHNSTONE GARY R. GLEASON
WALSCHON FIRE PROTECTION, INC. ROGER M. MANSUKHANI
MOTION TO COMPEL FURTHER RESPONSES FROM PLAINTIFF BY WALSCHON FIRE PROTECTION, INC.
· At the request of the moving party this matter is ordered off calendar.
CIV 522826 STEVE CULORES, ET AL. VS. AH APPLIANCES, INC., ET AL.
STEVE CULORES PRO/PER
AJ APPLICANCES, INC. JOEL L. HALVERSON
DEMURRER TO 1st Amended COMPLAINT of CULORES BY AJ APPLICANCES, INC.
· Dropped from calendar. Dismissal filed February 14, 2014.
CIV 523833 MORTGAGE GUARANTY INSURANCE VS. LAURA BARNES
MORTGAGE GUARANTY INSURANCE RUDY GABA
MOTION TO SET ASIDE DISMISSAL BY MORTGAGE GUARANTY INSURANCE
· Plaintiff Mortgage Guaranty Insurance Corporation’s unopposed Motion to set aside dismissal is GRANTED pursuant to California Code of Civil Procedure §473(b).
CIV 524653 MARK ADAMS VS. DAVID GALLI
MARK ADAMS PRO/PER
DAVID GALLI JEFFREY V. TA
MOTION FOR ATTORNEY FEES BY DAVID GALLI
· Defendant David Galli dba Galli Realty’s Unopposed Motion for Attorney’s Fees pursuant to Code of Civil Procedure section 425.16 is GRANTED and Attorney’s Fees in the amount of $2,264.60 are awarded against Plaintiff Mark Adams.
· This court issued a tentative ruling that DENIED Defendant’s Special Motion to Strike with regard to the First Cause of Action for Retaliatory Eviction and the Third Cause of Action for Racial Discrimination and GRANTED the Special Motion to Strike with regard to Second Cause of Action for Negligent Misrepresentation, the Fourth Cause of Action for Defamation, the Fifth Cause of Action for Conspiracy, and the Sixth Cause of Action for Intentional Infliction of Emotional Distress. While the tentative ruling was vacated when Mark Adams filed a voluntary dismissal of the entire action, Defendant‘s entitlement to a prevailing party award of attorneys’ fees pursuant to Code of Civil Procedure section 425.16 survived the voluntary dismissal. (Liu v. Moore (1999) 69 Cal.App. 745, 751.)
· Attorneys’ Fees of 67% of the amount incurred are awarded because Defendant’s Anti-Slapp motion had merit with regard to four of the six causes of action it sought to attack. An award of Attorneys’ fees allocable to the unsuccessful attack on the Statutory Claims for Retaliatory and Racially motivated evictions is not appropriate because the claim that conduct expressly made illegal by the Legislature is nonetheless protected by the Anti-Slapp statutes was frivolous.
CLJ 503735 CITIBANK (SOUTH DAKOTA), N.A. VS. MICHAEL J. LEMIRE
CITIBANK (SOUTH DAKOTA), N.A. JANALIE HENRIQUES
MICHAEL J. LEMIRE PRO/PER
MOTION TO SET ASIDE JUDGMENT AND REFER THE MATTER FOR BINDING ARBITRATION - MEMO BY MICHAEL J. LEMIRE
· Defendant Michael J. Lemire’s unopposed Motion to Set Aside Judgment and Refer Matter to Binding Arbitration is DENIED for on both procedural ground and on the merits. It is denied in that Defendant failed to provide proof that the motion was served in accordance with CCP §1005: the proof of service is incomplete, and the time set for hearing was less than was the statute requires for motions served via the U.S. mail.
· It is denied on its merits for a variety of reasons. Primarily, Defendant claims that Plaintiff is bound by an arbitration clause in the credit card agreement and that this is “newly discovered evidence” which justifies setting aside the judgment. The court entered judgment for Plaintiff on January 28, 2014. The court takes judicial notice of the court file and finds that the credit card agreement was part of the evidence submitted to the trial court. As such, it is not newly discovered evidence. Moreover, Defendant’s affidavit in support of the instant motion is not signed under penalty of perjury and is not notarized, in violation of CCP 2012.pp.
CLJ 520026 EXPRESS HEATING & AIR CONDITIONING VS. MCT DEVELOPMENT & CONSTRUCTION
EXPRESS HEATING & AIR CONDITIONING KEVIN P. MCCARTHY
MCT DEVELOPMENT & CONSTRUCTION PRO/PER
MOTION FOR SANCTIONS BY EXPRESS HEATING & AIR CONDITIONING
· Plaintiff, Heating and Air Conditioning’s Motion for Sanctions is GRANTED pursuant to C.C.P. §2023(c). On August 28, 2013, the parties stipulated to take the Motion to Compel off calendar and for Defendant to pay $1,460 in reasonable fees for drafting and filing the Motion to Compel. The Court recognizes that Defendant tendered a check for this amount back on the date of the hearing and Plaintiff refused to accept it, demanding an amount not stipulated to. The Court will not award any amount over the original stipulation.
· Plaintiff shall submit an order per CRC 3.1312 directly to Department 13, Judge Novak, for signature. The sanction shall be paid within 10 calendar days of service of the written order.