November 22, 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.

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 JOSEPH C. SCOTT

Department 25

 

400 County Center, Redwood City

Courtroom 2L

 

NOVEMBER 19, 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 507422       AMERICAN EXPRESS CENTURION BANK VS. HEIDI JEFFREY

 

 

AMERICAN EXPRESS CENTURION BANK       BRIAN M. NGO

HEIDI JEFFREY                         PRO/PER

 

 

MOTION TO ENTER JUDGMENT PURSUANT TO CCP 664.6 BY AMERICAN EXPRESS CENTURION BANK

 

 

·         The unopposed motion brought by Plaintiff to Enter Judgment Pursuant to CCP § 664.6 is GRANTED.  Plaintiff has provided the necessary documentation in support of its motion, and the relief requested is consistent with the stipulation signed by the parties.  Plaintiff is awarded judgment in the principal amount of $151.88 plus statutory costs.

 

·         Moving party is directed to prepare a written order and judgment 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 Joseph C. Scott, Department 25.

 

_____________________________________________________________________

9:00

2

CIV 519064       JACKIEJO LOPEZ, ET AL. VS. SOUTH SAN FRANCISCO POLICE

                   DEPARTMENT, ET AL.

 

 

JACKIEJO LOPEZ                        GREGORY S. WALSTON

SO. SAN FRANCISCO POLICE DEPARTMENT   MELISSA M. HOLMES

 

 

SECOND MOTION TO COMPEL PLAINTIFF EDWARD MILLER’S DEPOSITION

AND FOR TERMINATING OR ISSUE AND EVIDENTIARY SANCTIONS FOR MILLER’S FAILURE TO OBEY THE COURT ORDER COMPELLING HIS DEPOSITION BY CITY OF SOUTH SAN FRANCISCO, MARTY VAN DUYN, JASON ROSENBERG, NORMA FRAGOSO, SUSAN KENNEDY, KEVIN MULLIN, OFFICER MAZI SADIKI, SERGEANT DANIEL GIL, OFFICER JASON PFARR, OFFICER JOSHUA CABILLO, JONI LEE AND CHIEF MICHAEL MASSONI 

 

 

·         This motion is continued to January 7, 2015 at 9:00 A.M. in the Law and Motion department to allow Moving Parties to serve Plaintiff Edward Miller pursuant to CCP § 1011(b) and Rules of Court, Rule 3.252.  The Court is concerned regarding the notice given to Mr. Miller.  This statute and rule provides a method for service when the party’s residence is unknown.

 

 

MOTION TO COMPEL FURTHER DISCOVERY RESPONSES AND REQUEST FOR SANCTIONS BY CITY OF SOUTH SAN FRANCISCO, MARTY VAN DUYN, JASON ROSENBERG, NORMA FRAGOSO, SUSAN KENNEDY, KEVIN MULLIN, OFFICER MAZI SADIKI, SERGEANT DANIEL GIL, OFFICER JASON PFARR, OFFICER JOSHUA CABILLO, JONI LEE AND CHIEF MICHAEL MASSONI

 

 

·         The Motion to Compel Further Discovery Responses is DENIED without prejudice.  Moving Defendants did not comply with California Rules of Court, Rule 3.1345(c), by not including all responses provided by Mr. Miller to the discovery in the Separate Statement.

 

·         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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9:00

3

CIV 524733       GUADALUPE SEGURA, JR., et al.  VS. BANK OF AMERICA,

                   N.A., et AL.

 

 

GUADALUPE SEGURA, JR.                 JOHN HOLMAN

BANK OF AMERCA, N.A.                  MARGARET K. THIES

 

 

DEMURRER TO FIRst Amended COMPLAINT of SEGURA BY BLUE MOUNTAIN HOMES, LLC

 

 

·         Defendant’s Demurrer to the First Amended Complaint is SUSTAINED WITH LEAVE TO AMEND as to the 1st Cause of Action (Injunctive Relief), 2nd Cause of Action (Declaratory Relief), 3rd Cause of Action (Quiet Title), 9th Cause of Action (Fraud), 10th Cause of Action (Negligent Misrepresentation) and 12th Cause of Action (B&P § 17200).   Regarding the 1st Cause of Action for Injunctive Relief, Plaintiffs have not alleged facts to show that they are likely to succeed on the merits, that this is not their first request for injunctive relief and there is no adequate remedy at law.

 

·         Regarding the 2nd Cause of Action for Declaratory Relief, Plaintiffs have not set forth facts sufficient to show the existence of an actual controversy relating to the legal rights and duties of the respective parties under a written instrument or contract and request that these rights and duties be adjudged by the Court. [Maguire v. Hibernia S. & L Soc. (1944) 23 Cal.2d 719, 728].

 

·         As to the 3rd Cause of Action for Quiet Title, verification of the Complaint is required and has not been done by Plaintiffs.

 

·         Concerning the 9th and 10th Causes of Action for Fraud and Negligent Misrepresentation, Plaintiffs have not pled these causes of action with the required specificity and particularity.  When pleading fraud against a corporate entity, Plaintiff must also plead the names of the persons who made the allegedly fraudulent or negligent representations, their authority to speak, to whom they spoke, what was said or written and when it was said or written.  [Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153,157.]

 

·         As to the 12th Cause of Action under B&P § 17200, the allegations are vague, conclusory  and not specific to the demurring party.

 

·         Plaintiffs shall file a Second Amended Complaint, should they elect to do so, within fifteen (15) days of service of notice of entry of order. 

·         Defendant’s Request for Judicial Notice is GRANTED.

 

·         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 Joseph C. Scott, Department 25.

 

_____________________________________________________________________

9:00

4

CIV 524779       ISRAEL ARTEAGA VS. ROQUE ARTEAGA, JR., ET AL.

 

 

ISRAEL ARTEAGA                        OLIVER R. GUTIERREZ

ROQUE ARTEAGA, JR.                    MICHAEL P. QUINLIVAN

 

 

SPECIAL MOTION TO STRIKE DEFENDANT/CROSS-COMPLAINANT'S COMPLAINT BY ISRAEL ARTEAGA

 

 

·         Plaintiff/Cross-Defendant ISRAEL ARTEAGA’s Special Motion to Strike is DENIED.  Moving Party did not submit any supporting affidavits stating the facts upon which the motion is based as required by Code of Civil Procedure § 425.16(b)(2).  Plaintiff/Cross-Defendant bears the initial burden of showing that the conduct underlying the causes of action asserted in the Cross-Complaint arises from protected activity.  [City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79.]  Having failed to submit any admissible evidence to meet this threshold showing, Plaintiff’s/Cross-Defendant’s motion is denied.

 

·         The prevailing party is directed to prepare a written order consistent with the Court's tentative ruling for the Court's signature, pursuant to CRC 3.1312, and provide notice thereof to all counsel as required by law and the California Rules of Court.  The order is to be submitted directly to Judge Joseph C. Scott, Department 25.

 

_____________________________________________________________________

9:00

5

CIV 525758       N.A. SALES COMPANY, INC. VS. HAE-SUK LEE, ET AL.

 

 

N.A. SALES COMPANY, INC.              BRIAN H. SONG

HAE-SUK LEE

 

 

MOTION FOR SANCTIONS PURSUANT TO C.C.P. SECTION 2025.450(D) BY N.A. SALES COMPANY, INC.

 

 

·         Plaintiff’s Motion for Terminating Sanctions is DENIED.  Defendant is ordered to comply with the Court’s August 15, 2014 order within ten (10) days of service of notice of this order.  Failure to do so could result in the imposition of terminating sanctions based on  Defendant June Jungyoon Kim’s continued failure to comply with the Court’s orders.

 

·         Plaintiff’s request for further monetary sanctions is also DENIED.  Plaintiff cites no authority permitting monetary sanctions under the present circumstances.

 

·         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 Joseph C. Scott, Department 25.

 

_____________________________________________________________________

9:00

6

CIV 527001       SAMIE T. BACORRO VS. COUNTRYWIDE BANK FSB, ET AL.

 

 

SAMIE T BACORRO                       NICOLAS J. GOMEZ

BANK OF AMERICA, N.A.                 MOLLY TAYLOR ZAPALA

 

 

DEMURRER TO COMPLAINT of BACORRO BY COUNTRYWIDE HOME LOANS, INC., THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK AND MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.

 

 

·         The senior-most attorney on this action for Defendants is ordered to appear and provide authority to the Court, if any, that Defendants may circumvent the page limitation set forth in CRC 3.1113(d) through the use of twenty-seven (27) footnotes.

 

·         Defendants’ request that "to the extent that a lis pendens is recorded" be expunged is denied without prejudice to Defendants bringing a separate motion to expunge a lis pendens if one has been recorded.

 

·         Defendants' Request for Judicial Notice is granted.

 

·         Defendants’ Demurrer is SUSTAINED WITH LEAVE TO AMEND as to the 1st Cause of Action for declaratory relief, 2nd Cause of Action for slander of title, 6th Cause of Action to quiet title and 8th Cause of Action for cancellation of instruments.  It appears Plaintiff is attempting to bring a preemptive action that overrides California’s nonjudicial foreclosure rules.  [Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149; Jenkins v. JP Morgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497; Kan v. Guild Mortgage Co.  (2014) 230 Cal.App.4th 736.] 

 

·         Defendants' Demurrer to the 3rd Cause of Action for fraud is OVERRULED.  Although Plaintiff's claims arising from the loan origination would be barred by the statute of limitations and Plaintiff has failed to sufficiently allege delayed discovery, this cause of action also arises from concealment and misrepresentations made during Plaintiff's loan modification attempts that fall within the applicable statute of limitations.

 

·         Defendants' Demurrer to the 4th Cause of Action for breach of contract is SUSTAINED WITH LEAVE TO AMEND.  The Complaint does not identify the specific terms of the contract it alleges were breached.  It does not allege that the contract provided: (1) that the loan could not be sold, (2) that the loan could not be securitized or (3) that Plaintiff is entitled to a loan modification.  Nor has Plaintiff sufficiently alleged facts showing that his claimed damages were caused by the alleged breach of the contract.

 

·         Defendants' Demurrer to the 5th Cause of Action for quasi-contract and unjust enrichment is OVERRULED.  Plaintiff has alleged BOA demanded, received and retained mortgage payments to which it was not entitled. 

 

·         Defendants’ Demurrer to the 7th Cause of Action for accounting is SUSTAINED WITH LEAVE TO AMEND.  Plaintiff failed to allege facts showing that he would be entitled to have his loan balance reduced by any insurance proceeds the defendants might have received or that Defendants overall owe him money. 

 

·         Defendants’ Demurrer to the 9th Cause of Action for violation of California Homeowner Bill of Rights is SUSTAINED WITH LEAVE TO AMEND.  Although Plaintiff generally refers to continuing violations of the HBOR, Plaintiff has not identified any specific violation of the HBOR or what any particular defendant did or did not do in violation of the HBOR.  Plaintiff complains of the recordation of the assignment of the Deed of Trust in 2011, which occurred before the enactment of HBOR.  There is no allegation that any of the defendants have foreclosed upon Plaintiff's property. 

 

·         Defendants' Demurrer to the 10th Cause of Action for violation of B&P Code § 17200 is OVERRULED.

 

·         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 Joseph C. Scott, Department 25.

 

_____________________________________________________________________

9:00

7

CIV 528623       DAVID G. ARELLA VS. WELLS FARGO BANK, N.A., ET AL.

 

 

DAVID G. ARELLA                       LILIA BULGUCHEVA

WELLS FARGO BANK, N.A.                CHANEL L. OLDHAM

 

 

DEMURRER TO FIRst Amended COMPLAINT of ARELLA BY WELLS FARGO BANK, N.A.

 

 

·         The Request for Judicial Notice by Defendant Wells Fargo Bank, N.A.  is GRANTED pursuant to Evidence Code §§ 452(c)(d)(h) and 453.

 

·         The Demurrer brought by Defendant Wells Fargo Bank, N.A. as to the 1st Cause of Action (Wrongful Foreclosure), 7th Cause of Action (Setting Aside Trustee’s Sale) and 8th Cause of Action (Quiet Title) is SUSTAINED WITHOUT LEAVE TO AMEND.  Plaintiff alleges that Wells Fargo wrongfully foreclosed in breach of Civil Code § 2924g(c)(1)(C) because there was an oral agreement to postpone the November 21, 2013 sale until the middle of December.  Any alleged oral agreement to postpone the foreclosure sale is unenforceable.  An agreement that alters the lender’s ability to exercise a right of foreclosure under the Note or Deed of Trust due to the borrower’s default is subject to the statute of frauds.  [Secrest v. Security Nat’l Loan Trust (2008) 167 Cal.App.4th 544, 553.]

 

·         The Demurrer to the 2nd Cause of Action for Violation of Civil Code § 2923.7, brought by Defendant Wells Fargo Bank, N.A., is OVERRULED. Plaintiff has alleged that Defendant failed to provide him with a single point of contact pursuant to Civil Code § 2923.7, which is also in violation of the National Mortgage Settlement.  The facts alleged in the First Amended Complaint sufficiently allege a violation of Civil Code § 2923.7.

 

·         The Demurrer to the 3rd Cause of Action (Negligence) and 4th Cause of Action (Negligent Misrepresentation) by Defendant Wells Fargo Bank, N.A. is SUSTAINED with leave to amend.  Plaintiff must specifically allege duty and plead negligent misrepresentation with the requisite specificity.

 

·         The Demurrer to the 5th Cause of Action (Promissory Estoppel) by Defendant Wells Fargo Bank, N.A. is OVERRULED.  The promise to postpone the Trustee’s Sale of November 21, 2013 to the middle of December appears to be clear and unambiguous.  Plaintiff has alleged that his reliance was reasonable, and Plaintiff was reasonable in pursuing the loan modification.  Plaintiff alleges he relied upon the promise by pursuing loan modification and stopped exploring other options.  His damages were generated when Defendant failed to honor its agreement to postpone the sale, and Plaintiff had not pursued other avenues to satisfy his loan situation.

 

·         The Demurrer to the 6th Cause of Action, Intentional Infliction of Emotional Distress (IIED), by Defendant Wells Fargo Bank, N.A. is SUSTAINED WITH LEAVE TO AMEND.  IIED requires outrageous conduct by Defendants; intention to cause or reckless disregard of the probability of causing emotional distress; severe emotional suffering and actual and proximate causation of the emotional distress (Bogard v. Employer’s Cas. Co. (1985) 164 Cal.App.3d 602, 616).  It is alleged that Wells Fargo failed to honor an alleged oral promise to postpone the sale and sought to divest Plaintiff of title to the property.  A completed foreclosure sale cannot support an IIED claim.  Plaintiff also fails to allege any facts showing intent to cause emotional suffering.

 

·         Plaintiff’s amended pleading shall be filed and served within fifteen (15) days after service of Notice of Entry of Order.

 

·         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 Joseph C. Scott, Department 25.

 

_____________________________________________________________________

9:00

8

CLJ 518607       UNIFUND CCR, LLC VS. FARSHIDEH ZAKERI

 

 

UNIFUND CCR, LLC                      KENNETH J. MIELE

FARSHIDEH ZAKERI

 

 

MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT, QUASH SERVICE OF SUMMONS, FOR LEAVE TO DEFEND ACTION, QUASH WAGE GARNISHMENT ORDER AND RETURN OF ALL GARNISHED FUNDS BY FARSHIDEH ZAKERI

 

 

·         The Motion to Set Aside Default and Default Judgment, brought by Defendant pursuant to CCP § 473(d), is GRANTED.  Although under Evidence Code § 647 there is a presumption of valid service created by a return of a registered process server who served the Summons and Complaint, Defendant has shown that the substitute service was defective.  The person served by Plaintiff’s process server does not match the description of either Defendant or her daughter, the only people living at Defendant’s address at the time the person was allegedly served with the Summons and Complaint.  Plaintiff must re-serve the Summons and Complaint. 

 

·         Defendant’s Motion to Quash the Wage Garnishment Order is GRANTED. The garnishment order is quashed and any monies collected pursuant to that order must be returned to Defendant.

 

·         Defendant’s Motion to Quash Service of Summons is DENIED as it is rendered moot by the Court’s finding that Plaintiff’s service of the Summons and Complaint was void.

 

·         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 Joseph C. Scott, Department 25.

 

_____________________________________________________________________

9:00

9

CLJ 527476       PORTFOLIO RECOVERY ASSOCIATES, LLC VS. MARIA

                   GOCOBACHEGARCIA

 

 

PORTFOLIO RECOVERY ASSOCIATES, LLC    DONALD SHERRILL

MARIA GOCOBACHEGARCIA                 PRO/PER

 

 

MOTION FOR ORDER THAT MATTERS IN REQUEST FOR ADMISSION OF TRUTH OF FACTS BE ADMITTED AND FOR MONETARY SANCTION AGAINST DEFENDANT MARIA GOCOBACHEGARCIA BY PORTFOLIO RECOVERY ASSOCIATES, LLC

 

 

·         The unopposed Motion to Deem Matters Admitted, brought by Plaintiff, is GRANTED pursuant to CCP § 2033.280.  The Request for Admissions [Set No. 1] was served on Defendant, and no responses have been filed.  All matters contained in Plaintiff’s Request for Admissions [Set No. 1], dated June 6, 2014, are hereby deemed admitted.  Defendant shall also pay sanctions in the amount of $362.50 pursuant to CCP § 2033.280(c) within fifteen (15) days of being served with notice 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 Joseph C. Scott, Department 25.

 

_____________________________________________________________________

9:00

10

CLJ 529268       DISCOVER BANK VS. DIANA ELIZABETH OLIVA

 

 

DISCOVER BANK                         PETER R. OSTERMAN

DIANA ELIZABETH OLIVA                 PRO/PER

 

 

MOTION FOR JUDGMENT ON THE PLEADINGS BY DISCOVER BANK

 

 

·         The unopposed Motion for Judgment on the Pleadings, brought by Plaintiff Discover Bank, is GRANTED.  Under CCP § 438(c)(1)(A), a motion for judgment on the pleadings can be made where the complaint states sufficient facts to constitute a cause of action against the defendant, and the answer does not state facts sufficient to constitute a defense to the complaint.  In this case, Defendant Diana Oliva’s Answer does not contain a denial of any of the allegations of Plaintiff’s unverified Complaint.  In fact, Defendant admitted that all of the allegations of the Complaint were true when she checked Box 3b and included a written statement that she was unable to pay the debt, as well as her work with a debt relief company.  In addition, Defendant has not offered any affirmative defenses or exceptions.  Judgment for Plaintiff in the amount of $4,816.07 and costs in the amount of $380.00.

 

·         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 Joseph C. Scott, Department 25.

 

_____________________________________________________________________

9:00

11

CLJ 529804       INVESTMENT RETRIEVERS, INC. VS. ENRIQUE T. RUIZ

 

 

INVESTMENT RETRIEVERS, INC.           LORA GREVIOUS

ENRIQUE T. RUIZ                       PRO/PER

 

 

GENERAL DEMURRER TO THE ANSWER OF ENRIQUE T. RUIZ BY INVESTMENT RETRIEVERS, INC.

 

 

·         The unopposed Demurrer, brought by Plaintiff Investment Retrievers, Inc., to the Answer of Defendant Enrique T. Ruiz is SUSTAINED with leave to amend.  Defendant has alleged no facts, ultimate or otherwise, to support the answer or affirmative defense.

 

·         An amended Answer shall be filed within fifteen (15) days of service of the Notice of Entry of Order.

 

·         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 Joseph C. Scott, Department 25.

 


 

 

 


POSTED:  3:00 PM

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