September 19, 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, September 19, 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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Line: 1

16-CIV-01654   MATTHEW TOERPE, et al. vs. RUDOLPH AND SLETTEN, INC.

 

 

MATTHEW TOERPE                         ZACHARIAH D. HANSEN

rudolph and sletten, inc.              william a. bogdan

 

 

PLAINTIFF’S MOTION FOR LEAVE TO AMEND ANSWER TO COMPLAINT

TENTATIVE RULING:

 

Defendant’s motion for leave to amend is GRANTED on the condition that plaintiff may, if it deems necessary, reopen the deposition of defendant’s Person Most Qualified with respect to the limited issue of the newly asserted affirmative defense.  Defendant shall serve and file its amended answer no later than September 22, 2017

 

CCP §473(a) provides that the court may permit an amendment on any terms as may be just.  To the extent plaintiff contends defendant’s delay in asserting the defense deprived it of the right to make relevant inquiries during Person Most Qualified depositions, any prejudice is alleviated by providing that these depositions may be reopened for the limited purpose of inquiry regarding the affirmative     defense. 

 

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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17-CIV-03092     CITY OF HALF MOON BAY vs. GRANADA COMMUNITY SERVICES

                    DISTRICT, et al

 

 

CITY OF HALF MOON BAY                  ANTHONY P. CONDOTTI

MONTARA WATER AND SANITARY DISTRICT     CHRISTINE C. FITZGERALD

SEWER AUTHORITY                        CARL NELSON

GRANADA                                JONATHAN WITTER

 

PLAINTIFF’S MOTION FOR MANDATORY TRANSFER OR VENUE (CCP § 394)

TENTATIVE RULING:

 

Plaintiff CITY OF HALF MOON BAY’s Motion to Transfer Venue is GRANTED pursuant to Code Civ. Proc. § 394.  This case is hereby transferred to Santa Clara County.

 

The parties essentially have no dispute over whether this case should be heard before a neutral arbiter pursuant to Code Civ. Proc. § 394.  The appointment of a neutral judge by the Judicial Council, as well as the special setting of any future hearings and trial will necessarily bring with it some amount of delay. With the exception of counsel for Real Party in Interest SEWER AUTHORITY, the parties’ counsel are all located within the Bay Area, and it would appear that Santa Clara would be the most logical choice of venue.

 

 

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, moving party 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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17-UDL-00659     DEUTSCHE BANK NATIONAL TRUST COMPANY vs. CATHERINE

                    CHAVEZ, et al.

 

 

DEUTSCHE BANK NATIONAL TRUST COMPANY    KAYO MANSON-TOMPKINS

HARRY MANUEL                           TIMOTHY MCCANDLESS

 

 

HARRY MANUEL’S HEARING ON DEMURRER TO COMPLAINT FOR UNLAWFUL DETAINER

TENTATIVE RULING:

 

The demurrer is dropped from calendar for failure to establish that it was served in compliance with CCP §1005 and Local Rule 3.15.

The Proof of Service indicates the demurrer was served by mail on August 23, 2017.   Local Rule 3.15 requires a demurrer in an unlawful detainer action to be set for hearing pursuant to CCP §1005 within 16 court days prior to the hearing plus an additional five calendar days where service is by mail.  Mail service on August 23, 2017 gave plaintiff less than the required notice. 

In addition, the Proof of Service indicates the motion was addressed to plaintiff’s counsel at 2955 Main Street in Newport Beach.  The address of record for counsel is 2955 Main Street in Irvine.  Although defendant has used the Irvine ZIP Code it is unclear whether plaintiff’s counsel received the motion or that he did so in time to respond to it. 

 

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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CIV525919     CHARLES TANIGUCHI, ET AL. VS. RESTORATION HOMES LLC

 

 

CHARLES TANIGUCHI                      matthew mellen

RESTORATION HOMES LLC                  GLENN H. WECHSLER

fci lender services                    jason goldstein

 

 

RESTORATION HOMES LLC’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES

TENTATIVE RULING:

 

For the reasons stated below, Defendant Restoration Homes, LLC’s (Restoration) Motion for Summary Judgment is GRANTED. 

 

On Sept. 15, 2017, the Court granted Restoration’s Motion for Summary Adjudication of Plaintiffs’ asserted statutory claims in this consolidated action, leaving, with respect to Defendant Restoration, only Plaintiffs’ claims for breach of contract and breach of the implied covenant of good faith and fair dealing.  As the Court finds no triable issue of fact as to these two remaining claims, Restoration is entitled to judgment as a matter of law. 

 

On summary judgment, the moving party (Restoration) bears the initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact.  Sanchez v. Kern Emergency Medical Transportation Corp. (2017) 8 Cal.App.5th 146, 153.  To meet that burden, the moving party must present evidence sufficient to establish that one or more elements of Plaintiffs’ claims cannot be established, or that Defendant (Restoration) has a complete defense to Plaintiffs’ asserted claims.  Code Civ. Proc. Sect. 437c(p)(2).  This burden does not require Defendant to negate every element of Plaintiffs’ claims.  Scheiding v. Dinwiddie Const. Co. (1999) 69 Cal.App.4th 64, 70-72.  If Defendant carries its burden of production, the burden shifts to Plaintiffs to make a prima facie showing of the existence of a triable issue of material fact.  Sanchez, 8 Cal.App.5th at 153.  “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  Id.  Here, the Court finds that Restoration met its initial burden of producing evidence demonstrating one or more elements of the breach of contract and breach of the implied covenant claims cannot be established, and once the burden shifted to Plaintiffs, they failed to meet their burden of showing the existence of a triable issue of material fact as to these claims.  Code Civ. Proc. Sect. 437c(p)(2).

 

As to both the breach of contract and breach of the implied covenant claims, Restoration presented evidence conclusively establishing that Plaintiffs defaulted under the parties’ 2009 Loan Modification agreement, which gave Restoration the express contractual right to demand payment pursuant to the original (before the 2009 modification) terms of the Note and Deed of Trust.  There is no triable issue of fact as to Plaintiffs’ default.  Plaintiffs originally financed their property in 2006, and thereafter repeatedly defaulted on their loan and were granted three loan modifications, the last one occurring in 2009.  After the 2009 modification, Plaintiffs admitted to missing payments, making a series of late payments, and bouncing checks, which resulted in a string of late fees.  UMF 23-38; May 1, 2017 C. Williams Decl., Parag. 2, 3, 6, 7, Exs. K, L, M; Horrell Decl., Parag. 26-36; Opp. at 11:7-8 (Plaintiffs admitting their default).  Plaintiffs apparently attempted to cure their default via a $21,320.08 payment in January 2012, which they admit did not cure the entirety of their default, because they did not pay the undisputed accrued late fees.  UMF 36-38.  And after this failed attempt at reinstatement, Plaintiffs again continued to fail to make their monthly mortgage payments. 

 

Plaintiffs’ Opposition attempts to raise a triable issue of fact regarding Plaintiffs’ undisputed default (breach) through the Aug. 17, 2017 declaration of Ms. Taniguchi.  As stated in the Court’s Sept. 15, 2017 Order granting summary adjudication of Plaintiffs’ statutory claims against Restoration, Defendant’s evidentiary objections to Ms. Taniguchi’s Aug. 17, 2017 declaration are sustained, as she is not competent to testify as to the mortgage payments.  Further, such testimony would impermissibly contradict Plaintiffs’ binding admissions that they repeatedly breached the 2009 agreement.  Plaintiffs’ breach is fatal to their contract claims.  Because they cannot establish their own performance under the contract, their claims fail as a matter of law.  Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1173 (party alleging breach of contract must establish its own performance); CACI 525 (Plaintiffs’ performance is a required element of a claim for breach of the implied covenant of good faith and fair dealing). 

 

Nor can it be reasonably disputed that Restoration, following Plaintiffs’ breaches of the 2009 agreement, had the right to demand payment of the deferred amounts already due under the original Note and Deed of Trust.  The 2009 agreement states that it “amends and supplements (1) the Mortgage, Deed of Trust, Security Deed, etc. (‘the Security Instrument’),” and states that all provisions of the Security Instrument ... shall remain in full force and effect...” (2009 Loan Modification, Parag 9.)  Paragraph 11 provides that “Lender [Restoration] may, at its option, elect to enforce the Note [and Deed of Trust] according to the original terms and conditions, including but not limited to, the original interest rate and loan balance, and this Agreement shall be considered voided and without effect.” (UMF 12); see also UMF 20 (Note, Parag. 7(C), stating that in the event of default, the lender may require Plaintiffs to pay immediately “the full amount of Principal that has not been paid and all interest that [Borrowers] owe on that amount.”).  Plaintiffs’ contention that they had the right to reinstate their loan after default by paying only the post-2009 Loan Modification defaults directly contradicts their agreement.  The 2009 agreement expressly gave Restoration the right to enforce the original terms of the Note and Deed of Trust, and to demand that Plaintiffs pay the amounts that were past due and owing under the original Note and Deed of Trust, which were deferred by the 2009 agreement. 

 

In sum, the evidence conclusively establishes that Plaintiffs defaulted and breached the 2009 agreement, and accordingly, Restoration was authorized to initiate foreclosure proceedings, as set forth in the agreement and Deed of Trust.  Restoration’s exercise of an express, contractual right is not a breach of contract, nor an act in breach of its implied covenant of good faith and fair dealing.        

 

Restoration’s Request for Judicial Notice is GRANTED as to Exhibits B-F, I, J, and N.  Judicial notice is taken of the fact that Plaintiffs made certain judicial admissions in Exhibit H.  Restoration’s Evidentiary Objections to the Declaration of Marie Taniguchi are SUSTAINED as to Objection Nos. 1-13. 

 

Plaintiffs’ Request for Judicial Notice is GRANTED as to Exhibits A-H and L-R.  Judicial notice is granted insofar as Exhibits I, J, K, and S were filed in the Northern District Bankruptcy Court, but not as to the truth of any matters asserted therein.

 

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, prevailing party 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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CIV535661     CLARENCE WALKER, ET AL. VS. RUSHMORE LOAN MANAGEMENT

 

 

CLARENCE WALKER                        Pro/PER

RUSHMORE LOAN MANAGEMENT               JANA LOGAN

 

 

RUSHMORE LOAN MANAGEMENT’S MOTION FOR ATTORNEY’S FEES

TENTATIVE RULING:

 

Defendant’s motion for attorney’s fees is DENIED.

 

For purposes of attorney’s fees, Defendant is the prevailing party. However, Defendant fails to show that any statute or contract authorizes recover of attorney’s fees from Plaintiff. (See Code of Civ. Proc. Sect. 1021.)

 

Defendant’s motion is founded solely on the first paragraph of Paragraph 7 of the Deed of Trust. (See Moving Points and Authorities at 3:20-25.) That paragraph provides that “Lender may do and pay for whatever it deems reasonable or appropriate to protect the Lender's rights in the Property,” including “paying reasonable attorneys' fees.” Nothing in the first paragraph provides that either party may recover attorney’s fees from another party. Regardless, Defendant concludes that “Because Defendant defended the rights under the deed of trust, it is appropriate for Defendant to recover its attorneys’ fees,” without citing any language in Paragraph 7 that obligates any party to pay another party’s fees.

 

The second paragraph of Paragraph 7 states that the borrower will pay to Lender any amounts that Lender “advances” under Paragraph 7, and “I will pay those amounts to Lender when Lender sends me a notice requesting that I do so.” Defendant’s motion is not based on this language, but even this provision does not authorize any party to seek attorney’s fees from the other. Under a reasonable reading of the Agreement, the Lender’s attorney’s fees are not “advanced” on borrower’s behalf. They are paid by Lender to Lender’s attorney for legal work that the attorney performed for Lender. The word “advance,” reasonably applies to moneys such as payment for insurance or repairs, both of which are specifically mentioned in Paragraph 7.

 

Defendant cites two cases for the concept of reciprocity under Civil Code section 1717. In those cases, however, the deeds of trust expressly obligated the borrower to pay costs and attorney’s fees. (See Valley Bible Ctr. v. Western Title Ins. Co. (1983) 138 Cal. App. 3d 931, 932 (“Trustor agrees . . . to pay all costs and expenses, including . . . attorney’s fees”); Kachlon v. Markowitz (2008) 168 Cal. App. 4th 316, 347 (same wording).) Paragraph 7 contains no similar language or obligation by either party to pay attorney’s fees of the other. Since Paragraph 7 has no attorney’s fee obligation for any party, there is no fee obligation to reciprocate.

 

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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CIV536328     GREGORY REYNOLDS, ET AL. VS. DOMINIC J. PINTARELLI

 

 

GREGORY REYNOLDS                       STEWART R. POLLOCK

OCEAN COLONY ASSOCIATION               WILLIAM S. KRONENBERG

 

 

OCEAN COLONY ASSOCIATION’S MOTION FOR DETERMINATION OF GOOD FAITH SETTLEMENT

TENTATIVE RULING:

 

Ocean Colony’s unopposed motion to determine it’s $60,000 settlement is in good faith is GRANTED.  Defendant has provided evidence sufficient to show that the settlement is within the reasonable range of its proportionate share of liability in this action.   

 

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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CIV538256     KAREN A. FAGUNDES VS. TIMOTHY W. SILVA

 

 

KAREN A. FAGUNDES                      PrO/PER

TIMOTHY W. SILVA                       NOELL KUBOTA

 

 

DEFENDANT’S MOTION FOR ATTORNEY’S FEES

TENTATIVE RULING:

 

The Motion of Defendant Timothy Silva for Attorney’s Fees and Costs is DENIED without prejudice for failure to provide Plaintiff Karen Fagundes with adequate notice of this motion.  The proof of service shows that the moving papers were served by mail on August 30, 2017 and thus was served only 14 court days before the hearing and does not account for an extra 5 days for mailing.

 

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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17-UDL-00669     JOGA SINGH vs. GEORGE HARRISON, et al.

 

 

JOGA SINGH                             GARY W. SULLIVAN

GEORGE HARRISON                        Pro/PER

 

 

DEFENDANT’S MOTION TO SET ASIDE AND VACATE DEFAULT JUDGMENT UNDER CCP §473

TENTATIVE RULING:

 

The motion for relief from default is DENIED.

 

The motion is not supported by any evidence to show that the default was the result of mistake, inadvertence, surprise or excusable neglect.  For purposes of relief from default, excusable neglect boils down to whether the moving party has shown a reasonable excuse for the default.  Weil & Brown §5:327, citing Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1141-1142.  The burden is on the moving party to show that the default could not have been avoided through the exercise of ordinary care.  Id. at §5:329, citing Jackson v. Bank of America (1983) 141 Cal.App.3d 55, 58.  Here, defendant provides no evidence to make this showing.  He states that he did not understand that he needed to file papers with the court, that he did not read the summons because it intimidated him and that he thought he could resolve the matter by paying the back rent.  However, there is no indication that he took any action to determine the proper procedure or to respond to the complaint.  In addition, defendant has not provided a proposed responsive pleading as required by CCP §473(b).   

 

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.

 

 



 

 

 

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, September 19, 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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16-CIV-00073     DONNA D. SITU vs. J. HAINES ENTERPRISES, INC., et al.

 

 

DONNA D. SITU                          WILLIAM C. LAST, JR.

J. HAINES ENTERPRISES, INC.             Michael r. reynolds

 

 

Motion to Continue Trial Date

TENTATIVE RULING:

 

Cross-Defendant Bryan Walker’s Motion to Continue the currently scheduled trial of October 23, 2017 is GRANTED. All related trial cut-off deadlines, including but not limited to both non-expert and expert discovery deadlines shall run from the date of the new trial date. The new trial date is scheduled for March 26, 2018 at 9:00 a.m. This is the first available date for the court’s trial calendar. The mandatory settlement conference is scheduled for March 16, 2018 at 9:30 a.m.

 

 


 

 


POSTED:  3:00 PM

© 2017 Superior Court of San Mateo County