October 31, 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

 

OCTOBER 29, 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 493125       OTTO WILLIAM GRAF, ET AL. VS. CHASE, ET AL.

 

 

OTTO WILLIAM GRAF                     KURT E. WILSON

CHASE

 

 

MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION BY FEDERAL HOME LOAN MORTGAGE CORPORATION

 

 

·         The motion is DENIED as to the 1st cause of action.

 

·         The court has re-evaluated its previous tentative ruling and concludes that a triable issue of fact exists as to whether the $150,000 payoff to Freddie Mac was “intended to be used for the benefit of” Chase.  It is undisputed that the payoff was for the purpose of removing the first deed of trust securing Freddie Mac’s loan, which would allow Chase’s deed of trust to be in first position.

 

·         The Court concludes that the existence of title insurance is not an equitable consideration in the context of a subrogated claim. Regardless, even if title insurance were a matter to be equitably considered, the balancing of equities is a function for a trier of fact and cannot be determined as a matter of law on summary judgment.

 

·         During oral argument, the parties agreed that First American, as an insurer enforcing subrogation rights, has stepped into the shoes of Chase. The Court and the parties acknowledged that if Chase were the suing party, then the existence of its title insurance policy should be an equitable consideration. (This is true, since Chase claimed and received insurance benefits.) At the last hearing the court queried whether since First American merely stepped into Chase’s shoes, should the existence of title insurance also be considered an equitable consideration against First American.  The court now concludes that the answer is no.

 

·         When an insurer subrogates, it seeks all the claims that its insured could have sought against a third party. The existence of insurance should be considered against the insured (Chase), because the insured has been made whole. In contrast, the insurer has not been made whole. (i.e., the insurer did not pay itself. No one paid the insurer.) 

 

·         The cases cited by Freddie Mac do not involve subrogation. Ultimately, if the Court were to consider the existence of insurance when balancing the equities, then Freddie Mac could receive a windfall: It would have been fully compensated for a fraudulent loan, at the expense of Chase’s title insurer.

 

·         Freddie Mac has distinguished Katsivalis and Branscomb on facts that have nothing to do with the issue. In asserting equitable claims, the existence of insurance or the status of the plaintiff as a subrogor is an irrelevant factor. All equitable claims involve weighing of equities, which has nothing to do with the status of the plaintiff as a subrogor.

 

·         Here, First American asserts two equitable claims. Establishing claims for unjust enrichment requires that any plaintiff, regardless of the existence of insurance, has superior equities.

 

·         The cases on which Freddie Mac relies do not involve a subrogor’s assertion of equitable claims. State Farm Ins Co and Horn both involve a subrogor’s assertion of a common law tort claims. When the subrogor asserts a common law claim, the presence of superior equities is an additional element that needs to be proved. But where a subrogor is asserting an equitable claim, the concept of superior equities is subsumed in the very elements to establish the presence of unjust enrichment.

 

·         As set forth below in the discussion about the  2nd cause of action, several questions of fact exist about whether Freddie Mac has been unjustly enriched by receiving Chase’s payout.  If First American’s claim has merit, the unjust enrichment will be undone.

 

·         Hence, even if the Court were to conclude that it is legally permissible to give equitable consideration to the existence of title insurance, the Court still cannot grant summary judgment, because the weighing of equities (including the existence of title insurance) must be done by a jury. Thus, whether or not the Court concludes that title insurance should be considered, summary judgment cannot be granted.

 

·         The motion is denied as to the 2nd cause of action (implied contract).

 

·         1. Subrogation.

 

·         The initial issue is whether First American may enforce its subrogation rights, which requires a balancing of equities. (State Farm General Ins. Co. v. Wells Fargo Bank, N.A. (2006) 143 Cal.App.4th 1098, 1112.) Freddi Mac argues that First American must show that Freddie Mac is “guilty of some wrongful conduct” which makes his equity inferior to that of the insurer's. (Supp. Moving P & A at 4:22-23 [citing State Farm, supra, at 1111].)  When, as here, the dispute involves a third party whose involvement with the loss was indirect, the conduct need not be “wrongful,” but merely negligent. (State Farm, supra, at 1113-14 [citing Barclay Kitchen, Inc. v. California Bank (1962) 208 Cal.App.2d 347 and Hartford Acc. & Indem. Co. v. Bank of America (1963) 220 Cal.App.2d  545, 556 (courts finding insurers had superior equities against banks whose conduct allowed actual wrongdoer to embezzle)].)

 

·         “The insurers are free from fault in practically every instance where subrogation is claimed, and the cases turn in the main upon the question of whether the defendant bank is at fault in some manner or degree as, for instance, through failure to make normal inquiry.” (Hartford Acc. & Indem. Co. v. All Am. Nut Co. (1963) 220 Cal.App.2d 545, 558.)

 

·         Under Barclay Kitchen and Hartford, supra, the relevant inquiry to establish Freddie Mac’s superior equities is whether Freddie Mac or its predecessor committed any act or omission that contributed to Graf’s  employees’ ability to take out the fraudulent loan. No evidence is before the court on the question of the lender’s fault regarding the making of the void loan. Thus, the Court lacks the ability to find that, as a matter of law, Freddie Mac’s equities are superior to those of First American.

 

·         2. Unjust Enrichment.

 

·         The claim for implied-in-law contract is a claim for restitution based on unjust enrichment. The applicable law states:

 

·         The term “benefit” “denotes any form of advantage.” Thus, a benefit is conferred not only when one adds to the property of another, but also when one saves the other from expense or loss. Even when a person has received a benefit from another, he is required to make restitution “only if the circumstances of its receipt or retention are such that, as between the two persons, it is unjust for him to retain it.” Thus, a party who does not know about another's mistake, and has no reason to suspect it, may not be required to give up the benefit if he or she also relied on it to his or her detriment.  (Ghirardo v. Antonioli (1996) 14 Cal.4th 39, 51-52.)

 

·         It is undisputed that at the time of the payoff to FREDDIE MAC, both parties mistakenly believed that the underlying loan and deed of trust were valid. Both parties were mutually mistaken.

 

·         Freddie Mac argues that by accepting the $150,000 payoff, it merely received repayment of the loan. In exchange for the payoff, Freddie Mac reconveyed the deed of trust, putting First American in first position lien. This argument omits other facts. Since the loan and deed of trust were void, it is arguable that Freddie Mac parted with no value when it reconveyed a void deed of trust, while receiving full satisfaction of the loan debt.

 

·         Also, since the loan was fraudulent, Freddie Mac’s civil claim would be against the dishonest employees, Bettencourt and Soriano. The certainty of receiving full compensation through a civil action against them is unknowable, but likely not high. Therefore, it is arguable that receiving a full payoff from First American saved Freddie Mac “from a loss,” thereby constituted a benefit at First American’s expense.  (Ghirardo v. Antonioli (1996) 14 Cal.4th 39, 51-52.)

 

·         It appears that triable issues of fact exist about whether Freddie Mac benefitted unjustly at the expense of First American. 

 

·         Prevailing 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.

 

 

_____________________________________________________________________

 

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2

CIV 513394       JENNIFER MORAN VS. D&J PRECISION MACHINING, INC., ET

                   AL.

 

 

JENNIFER MORAN                        PAUL E. RICE

D&J PRECISION MACHINING, INC.

 

 

MOTION TO BE RELIEVED AS COUNSEL FOR RHAUSLER, INC. BY JOHN H. BLAKE

 

 

·         This matter is moot.  A Substitution of Attorney was filed on October 23, 2014.

 

 

_____________________________________________________________________

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3

CIV 521687       TINA MARIE HOLEMAN VS. ENA MARIA LAL, ET AL.

 

 

TINA MARIE HOLEMAN                    DAVID W. WESSEL

ENA MARIA LAL                         BRIAN J. MCSHANE

 

 

MOTION FOR ORDER COMPELLING DEFENDANT UNITED PARCEL SERVICE, INC. TO PROVIDE FURTHER RESPONSES TO SPECIAL INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS AND REQUEST FOR SANCTIONS BY TINA MARIE HOLEMAN

 

 

·         Plaintiff’s Motion to Compel Further Responses to Special Interrogatories Nos. 2-5 and Requests for Production Nos. 2-4 is GRANTED.  Defendant did not bear the burden in justifying its general objections to these discovery requests and thus these objections are overruled.  Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221. 

 

·         First, Defendant’s objection that the requests do not seek discovery of information reasonably calculated to lead to the discovery of admissible evidence is overruled because Plaintiff has demonstrated that the training materials and the preparation of those training materials is likely to lead to admissible evidence.  Even if Defendant does not know the person who wrote the exact words in the subject training materials, Plaintiff’s request asks for information regarding the “preparer.”  Thus, Defendant must provide information regarding the preparer whether that is the identification of the corporate group that produces the training materials or the custodian of these documents. 

 

·         Second, Defendant’s objection that the requests are vague and ambiguous is also overruled because the requests are sufficiently specific.  See Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783.

 

·         Third, Defendant’s objection that the requests for production seek confidential, proprietary, etc. information is overruled.  The parties stipulated to a protective order that was entered in this Court on July 21, 2014 that will sufficiently protect these documents.  Further, Defendant attached these confidential documents to its opposition to the instant motion. 

 

·         Fourth, Defendant’s objection that Requests for Production Nos. 3-4 are duplicative of Requests for Production No. 2 is overruled.  Although Defendant may indeed produce the exact same information for each of these requests, they are in reality different requests that could elicit different information.  It is possible that for some reason or another, the driver in this action (the subject of Request No. 2) could have received different training materials than other California drivers (the subject of Request No. 3) or other UPS drivers (the subject of Request No. 4).  Thus, these requests are sufficiently different that they are not duplicative.

 

·         Finally, Defendant’s opposition argues that it provided supplemental responses to these discovery requests making this motion unnecessary.  However, these responses are unverified and as such are treated as no responses at all.  Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.  Further, even if Defendant had served verifications to these responses, Defendant still has not provided any information regarding the preparers of these training materials. 

 

·         Thus, Defendant is ordered to fully and completely respond to Plaintiff’s Special Interrogatories Nos. 2-5 and Requests for Production Nos. 2-4.

 

·         Plaintiff’s objections to the Declaration of Judy Liao in support of Defendant’s Opposition are sustained only to the extent Ms. Liao’s declaration contains information regarding who has or does not have possession of the training materials in Paragraph 1, lines 10-12.  The remainder of Plaintiff’s objections are overruled.

 

·         Plaintiff’s request for sanctions is GRANTED pursuant to CCP §§ 2030.300(d), 2031.300(c).  Defendant’s objections were without merit and as such constitute misuse of the discovery process.  Defendant is ordered to pay monetary sanctions in the amount of $3,750.

 

·         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.

 

 

_____________________________________________________________________

 

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4

CIV 523065       RAEL & LETSON VS. MICHAEL CLARK, ET AL.

 

 

RAEL & LETSON                         MICHAEL S. DORSI

MICHAEL CLARK                         PAUL J. BARULICH

 

 

MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION BY RAEL & LETSON, HEIDI HAGLER AND ALEXANDRA WILLSON

 

 

·         Plaintiff/Cross-Defendant RAEL & LETSON (“R&L”) and Cross-Defendants HEIDI HAGLER and ALEXANDRA WILLSON’s Motion for Summary Judgment is GRANTED.  Cross-Defendants have met their burden of demonstrating that one or more elements of each of Cross-Complainant MICHAEL CLARK’s causes of action cannot be established, and CLARK fails to meet his burden of showing the existence of a triable issue of material fact.  Code Civ. Proc. § 437c; Calvillo-Silva v. Home Grocery (1998) 19 Cal.4th 714, 735.  Specifically, the Court finds as follows:

 

·         As to the first cause of action for breach of fiduciary duty, none of the Cross-Defendants are majority shareholders that owe a fiduciary duty to CLARK as minority shareholder.  CLARK does not dispute that R&L is not a majority shareholder of R&L.  (UMF No. 1.)  HAGLER is not a majority shareholder of R&L.  (UMF No. 9.)  She was neither a corporate officer nor director at the relevant time set forth in the Second Amended Cross-Complaint (“SACC”).  (UMF No. 11.)  WILLSON is not a majority shareholder of R&L.  (UMF No. 18.)  CLARK attempts to argue in his Opposition that WILLSON is a majority shareholder by virtue of her title as Trustee of the ESOT.  However, CLARK has not sued the ESOT, nor has he sued WILLSON in her capacity as Trustee.  WILLSON was not a corporate officer at the time of the alleged conduct, nor was she ever a member of the Board. (UMF No. 20.) 

 

·         The element of damages is also not established.  The SACC alleges that Cross-Defendants failed to offer him a “put option” for his 25% minority shareholder interest upon his termination.  (SACC ¶ 32.)  However, CLARK acknowledges and does not dispute that Cross-Defendants had no legal obligation to offer this to him.  (UMF Nos. 3, 12, 23.)  The SACC alleges that Cross-Defendants’ actions diminished the value of the shares of R&L, which affected CLARK’s shares.  (SACC ¶ 33.)  However, this is a derivative claim that cannot be asserted by CLARK individually.  Rankin v. Frebank Co. (1975) 47 Cal.App.3d 75, 95.  The SACC also contends that CLARK’s employment was terminated.  However, this has no bearing or connection with his status as a minority shareholder.  To the extent that CLARK alleges a breach of fiduciary duty based on the Board’s corporate decision-making (which he alleges the individual Cross-Defendants aided and abetted in), such conduct is protected by the business judgment rule.  Katz v. Chevron Corp. (1994) 22 Cal.App.4th 1352, 1365-68.  (UMF Nos. 5, 6, 14, 15, 25, 26.)  

 

·         As to the second cause of action for constructive fraud, this claim requires a fiduciary or confidential relationship, which did not exist between CLARK and any of the Cross-Defendants.  The SACC alleges that Cross-Defendants were in a relationship of trust and confidence with CLARK, as majority vs. minority shareholders.  (SACC ¶¶ 38, 39.)  However, CLARK does not dispute that R&L is not a majority shareholder (UMF No. 29).  HAGLER is not a majority shareholder, nor was she a corporate officer or director at the time of the alleged conduct.  (UMF Nos. 34, 36.)  WILLSON is also not a majority shareholder, nor was she a corporate officer or managing member at the time of the alleged conduct.  (UMF Nos. 41, 43, 44.) 

 

·         Further, the only misrepresentation or omission that CLARK is able to identify are statements purportedly made by HAGLER and WILLSON in declarations filed with the Court.  However, these communications are privileged by the litigation privilege set forth in Civil Code § 47.  (UMF Nos. 32, 38, 47.)  Insofar as CLARK alleges he was promised he could continue running R&L as he had in the past, this claim fails for lack of specificity.  Schauer v. Mandarin Gems of Cal, Inc. (2005) 125 Cal.App.4th 949, 960-61, UMF Nos. 32, 38, 47.

 

·         As to the fifth cause of action for violation of Labor Code § 2802, this claim fails.  CLARK does not deny that he is seeking indemnity for costs associated with his personal tax returns (UMF No. 50), despite having represented to the Court otherwise when opposing Cross-Defendants’ demurrer to the cross-complaint.  (Cross-Defendants’ Request for Judicial Notice, Exhibit A.)  Labor Code § 2802 limits recovery of business-related expenses to those incurred “solely because of actions which he performed within the course and scope of his employment.”  Douglas v. Los Angeles Herald-Examiner (1975) 50 Cal.App.3d 449, 463.  If CLARK is facing costs on his personal tax return due to a failure to report certain benefits, it is difficult to see how that failure to report to the IRS was within the course and scope of his employment with R&L.   

 

·         As to the sixth cause of action for negligent misrepresentation, this claim fails because CLARK is unable to identify with specificity any misrepresentations to support this claim.  (UMF No. 52, 57, 62.) 

 

·         Cross-Defendants’ Request for Judicial Notice is GRANTED as to Exhibit A only.

 

·         CLARK’s evidentiary objections are SUSTAINED as to Objection No. 9 and OVERRULED as to the remainder.  Cross-Defendants’ evidentiary objections are SUSTAINED as to Objection Nos. 1, 2, 4, 5, 6, 9, 12, 13, 14, 15, and 16, and OVERRULED as to the remainder. 

 

·         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 525948       MCGLASHAN & SARRAIL VS. GEORGE USUKA, ET AL.

 

 

MCGLASHAN & SARRAIL                   WILLIAM A. BAULD

GEORGE USUKA                          BRIAN C. ANDREWS

 

 

DEMURRER TO CROSS-COMPLAINT of USUKA BY MCGLASHAN & SARRAIL

 

 

·         Plaintiff/Cross-Defendant’s Demurrer to Defendants/Cross-Complainants’ Cross-Complaint is SUSTAINED with leave to amend.  Defendants/Cross-Complainants are granted leave to amend the Cross-Complaint to state additional facts to support when they discovered the facts of the alleged professional negligence, when they suffered actual injury by way of verdict or settlement of the underlying action, and whether the breach of fiduciary duty claim arose from any relationship other than the attorney-client relationship.

 

·         Under CCP § 340.6(a), the statute of limitations for attorney malpractice, the one-year period begins to run when the plaintiff actually or constructively discovers the facts of the wrongful act or omission, but the period is tolled until the plaintiff sustains actual injury.  Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison, 18 Cal. 4th 739, 751 (1998). Although he cause of action accrues when facts of malpractice are discovered, the cause of action is tolled until Plaintiff suffers actual injury.  Tchorbadjian v. Western Home Ins. Co., 39 Cal. App. 4th 1211, 1218 (1995). (On the other hand, if the party suffers actual injury such as an adverse judgment or settlement before discovering the facts of  malpractice, the statute begins to run from the date of discovery. Ibid.)  When the malpractice causes only nominal damages, speculative injury, or the threat of unrealized future harm, the statute of limitations does not commence to run. Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison, supra, 18 Cal. 4th at 749–750.

 

·         A person without legal training might not immediately recognize legal malpractice or even understand that he was overbilled.  Therefore, it is not clear that there was “actual injury” or discovery of the “injury” before the Usukas’ attorney-client relationship ended with the filing of the Substitution of Attorney forms in December 2012.  Additionally, the “actual injury” in the case of a lawsuit or settlement does not occur until the suit is tried or the settlement completed. Prior to that, it is only a speculative injury.  The point when “actual injury” occurs is always a question of fact.  Adams v. Paul, 11 Cal. 4th 583, 588-592 (1995).

 

·         Here, Defendants/Cross-Complainants argue in the Opposition to the Demurrer (but not the Cross-Complaint) that their “actual injury did not occur until sometime after the filing of the Substitution of Attorney, the trial itself ended and Cross-Complainants realized that their recovery was limited as a result of Cross-Defendants’ professional negligence.”  (Opp. 4:18-21.) Thus, there appears to be a question of fact regarding the date of actual injury. As plead however the allegations in the Complaint do not currently provide sufficient factual support for this claim.

 

·         CCP § 340.6 cannot be avoided by suing for “breach of fiduciary duties” based on the attorney's acts or omissions while representing plaintiff or otherwise from the attorney-client relationship. Quintilliani v. Mannerino, 62 Cal. App. 4th 54, 67 (1998).

 

·         Defendants’ Cross-Complaint only alleges that the cause of action for breach of fiduciary duty arose from the attorney-client relationship and not out of any other confidential relationship.  Therefore, this cause of action which is currently based on the third cause of action for professional negligence  is therefore governed and barred by the one year statute of limitations.

 

·         Plaintiff/Cross-Defendant’s Request for Judicial Notice is GRANTED pursuant to Evidence Code §§ 452(d) and 453. 

 

·         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 Elizabeth K. Lee, Department 17.

 

 

_____________________________________________________________________

 

9:00

6

CIV 527270       CHARLES OGREN, ET AL. VS. BRITTAN HEIGHTS CONDOMINIUM

                   ASSOCIATION, ET AL.

 

 

CHARLES OGREN                         MARC D. BENDER

BRITTAN HEIGHTS CONDOMINIUM SERVICES  PAUL W. WINDUST

 

 

DEMURRER TO COMPLAINT of OGREN BY BRITTAN HEIGHTS CONDOMINIUM ASSOCIATION AND AMERICAN MANAGEMENT SERVICES, INC.

 

 

·         Defendants’ Demurrers as to the First, Second and Third Causes of Action are OVERRULED. A contract may be alleged by its legal effect rather than its precise language. (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal. 4th 189, 198-199)

 

·         In the case of Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal. 4th 189, 198-199, the Court held “In an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language. “

 

·         Defendants argue that plaintiffs are required to plead contractual terms verbatim or attach a copy of the contract to the pleading, but as stated above this is not required.

 

·         Defendants also submit the Governing Documents in their Request for Judicial Notice and argue about its meaning. However, in Fremont Indemnity Co. V. Fremont General Corp. (2007) 148 Cal. App. 4th 97, 114-115 the Court held “For a court to take judicial notice of the meaning of a document submitted by a demurring party based on the document alone, without allowing the parties an opportunity to present extrinsic evidence of the meaning of the document, would be improper. A court ruling on a demurrer therefore cannot take judicial notice of the proper interpretation of a document submitted in support of the demurrer” (emphasis added).

 

·         Defendants also try to expand the argument to state plaintiffs also fail to allege a duty because the contract is not property pled.

 

·         In Pultz v. Holgeson (1986) 184 Cal. App. 3d 1110, 1117 the court stated that the duty to exercise reasonable care can be inferred from the assertion of the fact that defendant owned and managed the property. Furthermore, the negligence element may be generally pleaded; the breach of duty of care may be alleged by stating the act was negligently done. Here, plaintiffs have alleged the relationship of the parties and defendants’ duties vis-à-vis the Governing Documents.

 

·         Defendants raise the issue of judicial deference with respect to decisions by the Association; however, judicial deference is a defense. (Ekstrom v. Marquesa at Monarch Beach Homeowners Assn. (2008) 168 Cal. App. 1111, 1123) Obviously, defenses have little impact on demurrers.

 

·         The challenge to the 3rd C/A (Declaratory Relief) is based upon the challenges to the 1st and 2nd C/A’s. Since the arguments as to the 1st and 2nd C/As have no merit, likewise the challenge to the 3rd C/A has no merit.

 

·         Defendants shall file and serve their answer within 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 Elizabeth K. Lee, Department 17.

 

 

_____________________________________________________________________

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7

CIV 529725       ACACIABANK VS. MANDY LEE TAM

 

 

ACACIABANK                            CHRISTOPHER R. NELSON

MANDY LEE TAM

 

 

ORDER TO SHOW CAUSE WHY ORDER FOR SALE OF DWELLING SHOULD NOT BE MADE BY ACACIABANK AND BANK ONE, ARIZONA, NA

 

 

·         Plaintiff/Judgment Creditor Acacia Bank’s application for an Order for Sale of Real Property is GRANTED pursuant to CCP §§704.780(b).  Plaintiff has met the requirements for issuance of an order to sell as set forth in CCP §§ 704.750 – 704.770. Proper notice has been given. 

 

·         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.

 

 

_____________________________________________________________________

 

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8

CLJ 513236       CAPITAL ONE BANK (USA), N.A. VS. ANDREW J. RONSTADT

 

 

CAPITAL ONE BANK (USA), N.A.          ANDREW P. RUNDQUIST

ANDREW J. RONSTADT                    PRO/PER

 

 

MOTION TO COMPEL RESPONSE TO DISCOVERY, ORDER FOR THE GENUINENESS OF DOCUMENTS AND TRUTH OF MATTERS ASSERTED BY CAPITAL ONE BANK (USA), N.A.

 

 

·         Plaintiff CAPITAL ONE BANK’s Motion to Compel Response to Discovery, Order for the Genuineness of Documents and Truth of Matters Asserted is GRANTED. Plaintiff CAPITAL ONE BANK’s request for monetary sanctions is DENIED. Plaintiff timely served discovery responses and Defendant has simply failed to respond. Defendants have waived all objections to the discovery responses and should be compelled to provide responses pursuant to CCP §§2030.290 [interrogatories] and 2031.300 [request for production]. Additionally, the genuineness of the documents and the truth of the matters specified in the requests are deemed admitted pursuant to CCP §2033.280(b) and (c). Sanctions should not be awarded because Plaintiff failed to meet the requirements of CCP §2023.040.

 

·         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

9

CLJ 521967       PORTFOLIO RECOVERY ASSOCIATES, LLC VS. EDWIN GEER

 

 

PORTFOLIO RECOVERY ASSOCIATES, LLC    ANDREW P. RUNDQUIST

EDWIN GEER                            JOSEPH C. ROSENBLIT

 

 

MOTION TO COMPEL RESPONSE TO DISCOVERY, ORDER FOR THE GENUINENESS OF DOCUMENTS AND TRUTH OF MATTERS ASSERTED BY PORTFOLIO RECOVERY ASSOCIATES, LLC

 

 

·         Plaintiff’s unopposed Motion to Compel Form Interrogatories, Request for Production, and Request to Deem Matters Admitted is GRANTED. 

 

·         Defendant Edwin Geer shall provide verified responses without objection to the Form Interrogatories [Set One] and Request for Production [Set One].  All those matters set forth in Request for Admissions [Set One] are hereby deemed admitted.

 

·         Plaintiff has not requested sanctions and none are awarded.

 

·         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

10

CLJ 528106       PORTFOLIO RECOVERY ASSOCIATES, LLC VS. JAQUELINE

                   MADRIAGA

 

 

PORTFOLIO RECOVERY ASSOCIATES, LLC    KEVIN E. LAWLESS

JAQUELINE MADRIAGA                    PRO/PER

 

 

MOTION TO COMPEL RESPONSE TO DISCOVERY, ORDER FOR THE GENUINENESS OF DOCUMENTS AND TRUTH OF MATTERS ASSERTED BY PORTFOLIO RECOVERY ASSOCIATES, LLC

 

 

·         Plaintiff Portfolio Recovery Associates, LLC’s unopposed Motion to Compel Responses to the First Set of Special Interrogatories; Request for Production of Documents and to Deem Matters Admitted is GRANTED pursuant to CCP  §§2030.290 [interrogatories]; 2031.300 [request for production] and 2033.250 [Request for Admissions]. Defendant has failed to respond to timely and properly serve discovery requests. Defendant has waived all objections to the discovery and is ordered to provide verified responses, without objection within 20 days of service of the notice of entry of order to the Special Interrogatories [set 1] and the Request for Production [Set 1]. All those matters set forth in Plaintiff’s Request for Admissions [Set 1] dated June 11, 2014 are hereby deemed admitted.

 

·         No request for sanctions has been made.

 

·         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 to provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court.

 

 

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© 2014 Superior Court of San Mateo County