March 23, 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

 

Wednesday, March 22, 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

9:00

Line: 1

17-CIV-00232     T.J. ALAPATI vs. MATAGRANO, INC.

 

 

T.J. ALAPATI                           JAMIE SERB

MATAGRANO, INC.

 

 

SPECIAL DEMURRER TO ABATE AND MOTION TO STAY PROCEEDINGS

TENTATIVE RULING:

 

By stipulated order, this action is stayed pending final resolution of San Francisco case CGC-16-550494, Gonzales vs. Matagrano.

 



9:00

Line: 2

17-UDL-00129      HERITAGE REALTY PROPERTY MANAGEMENT vs. ALEX RUBIO

 

 

HERITAGE REALTY PROPERTY MANAGEMENT     Pro/PER

ALEX RUBIO                             Pro/PER

 

 

Demurrer

TENTATIVE RULING:

 

This matter is dropped from calendar as the case has been dismissed.

 



9:00

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CIV531946     CONNOR COCHRAN, ET AL. VS. PATRICK LAKE

 

 

CONNOR COHCRAN                         RICHARD J. MOONEY

PATRICK LAKE                           DAVID M. HELBRAUN

PEGGY CARLISLE (3RD PARTY)              PRO/PER

DEBORAH GRABIEN (3RD PARTY)             PRO/PER

 

MOTION TO COMPEL PRODUCTION OF DOCUMENTS PURSUANT TO THIRD PARTY SUBPOENAS

TENTATIVE RULING:

 

Plaintiff Connor Cochran’s (Plaintiff) Motion to Compel Production of Documents Pursuant to Third Party Subpoenas from third party Peggy Carlisle is DENIED.  Ms. Carlisle’s sworn response states she has never logged onto or had any communications (to or from) the website www.fansagainsdtfraud.com or any other social media website.  Her response also states she has had no communications with Mr. Lake.  Plaintiff’s belief that she in fact does possess responsive documents is not specific enough or reliable enough to prove her non-compliance. 

 

Plaintiff’s Motion to Compel as to third party Deborah Grabien is GRANTED-IN-PART.  The process server’s declaration states that on Dec. 18, 2016, after several unsuccessful attempts, Ms. Grabien was personally served at her home address.  Although she initially responded by letter to Plaintiff’s counsel, stating she was not personally served, her Opposition to the present motion does dispute proper service of the subpoena.  The process server’s declaration establishes a presumption of proper service, which has not been sufficiently rebutted.  As to Category No. 1 (“All communications to or from www.fansagainstfraud.com or any social media account”), the motion is GRANTED with respect to Ms. Grabien’s communications with (to or from) the www.fansagainstfraud.com website.  The Court disagrees these documents are equally available to Plaintiff.  The motion is DENIED as to Ms. Grabien’s communications with (to or from) “any social media account,” which is overbroad and unduly burdensome.  The motion is also DENIED as to Category No. 2 (communications with Patrick Lake).  Ms. Grabien’s sworn response states she possesses no responsive documents.  Plaintiff’s belief that she in fact does possess responsive documents is not specific enough or reliable enough to prove her non-compliance. 

 

Plaintiff notes he has no telephone number for the subpoenaed third parties, who are unrepresented, and thus cannot timely notify them in the event he plans to contest the Tentative Ruling.  If Plaintiff wishes to appear at the hearing, he should make a good faith attempt to timely notify any affected third party, to the extent possible. 

 

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, Plaintiff 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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Line: 4

CIV533450     KEN WONG VS. RAOUL ROBERT LEROY SIMPSON

 

 

KEN WONG                               Pro/PER

RAOUL ROBERT LEROY SIMPSON             RICHARD L. BECKMAN

 

 

MOTION FOR AWARD OF ATTORNEY’S FEES

TENTATIVE RULING:

 

The Motion of Defendant Raoul Robert Leroy Simpson (“Defendant”) for Award of Attorney’s Fees is GRANTED. 

 

Plaintiff Ken Wong (“Plaintiff”) filed this action against Defendant for breach of contract alleging that Defendant failed to make payments on the promissory note.  (See Complaint, Exh. A., para. IV.)  The court sustained Defendant’s demurrer to the Complaint without leave to amend, and the case was dismissed. 

 

Even though Defendant was not a signatory to the promissory note, Civil Code section 1717 has been interpreted “to further provide a reciprocal remedy for a nonsignatory defendant, sued on a contract as if he were a party to it, when a plaintiff would clearly be entitled to attorney's fees should he prevail in enforcing the contractual obligation against the defendant.”  (See Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 128.)  The promissory note sought to be enforced by Plaintiff against Defendant contained an attorney’s fees provision, and Plaintiff sought to recover such fees from Defendant.  (See Complaint and attached Exh. A.) Thus, Defendant, as the prevailing party here, is entitled to recover attorney’s fees under Civil Code section 1717.

 

Defendant requests attorney’s fees of $9,000.  Defendant’s counsel provides his own declaration in support of this amount, but his declaration does not breakdown the work performed by him, his associate attorney and his paralegals, and he has not provided his billing statements. Although an attorney’s fee request ordinarily should be documented in great detail, the absence of time records and billing statements does not deprive a trial court of substantial evidence to support an award.  (Weber v. Langholz (1995) 39 Cal.App.4th 1578, 1587.) The trial court may make its own evaluation of the reasonable worth of the work done in light of the nature of the case, and of the credibility of counsel's declaration unsubstantiated by time records and billing statements.  (Id.)  After reviewing the pleadings and Defendant’s counsel’s declaration, the court finds that Defendant is entitled to recover attorney’s fees in the amount of $4,500.00.

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.

 



9:00

Line: 5

CIV537448     GC MICRO CORPORATION VS. STATE FARM GENERAL INSURANCE

                  COMPANY

 

 

GC MICRO CORPORATION                   RANDY M. HESS

STATE FARM GENERAL INSURANCE COMPANY    JENNY J. CHU

 

 

MOTION TO COMPEL FURTHER RESPONSE TO DEMAND FOR PRODUCTION AND INSPECTION OF DOCUMENTS

TENTATIVE RULING:

 

Plaintiff GC MICRO CORPORATION’s Motion to Compel Further Responses to Demand for Production is GRANTED IN PART.  Defendant STATE FARM GENERAL INSURANCE COMPANY is ordered to re-produce documents responsive to Request for Production of Documents (Set One), Request No. 2, as follows: CF 20, CF 21, CF 24, CF 25, CF 27, CF 33, CF 43, CF 53, and CF 54.  The existing redaction marks must be removed as to any non-privileged information contained in these pages, such as, that portion of the file notes that do not contain privileged material, but rather consists of “independent facts” related to the attorney-client communication that are not privileged.  See State Farm Fire & Cas. Co. v. Superior Court (1997) 54 Cal.App.4th 625, 640.  These “independent facts” would include notes regarding whether a claims handler received or made a telephone call (and with whom); whether an email communication was written; whether some follow-up action was taken, etc. 

 

Defendant may continue to redact any specific portions of these pages that are protected by the attorney-client privilege or attorney work product doctrine.  If these documents contain file notes where one State Farm employee was relaying attorney advice to another State Farm employee; the privileged material need not be produced, but any non-privileged notations should be.

 

The motion is DENIED as to CF 39, CF 48, CF 49, CF 51, CF 52, and CF 58-60.  According to State Farm’s privilege log, this set of documents are notations of payments made to State Farm’s attorneys, Wade & Lowe.

 

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, Plaintiff 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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Line: 6

CIV538211  LAW OFFICES OF HERMAN H. FITZGERALD VS. ANDY SABERI, ET AL.

 

 

LAW OFFICES OF HERMAN H. FITZGERALD     STEPHEN A. SCOTT

ANDY SABERI                            THOMAS I. SABERI

 

 

MOTION FOR ORDER GRANTING LEAVE TO FILE FIRST AMENDED CROSS-COMPLAINT

TENTATIVE RULING:

 

Cross-Complaintants unopposed motion to amend the Cross-Complaint is GRANTED.  Moving party shall file the First Amended Cross-Complaint within 5 days of this order. 

 

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.

 

 



9:01

Line: 7

17-CIV-00502     ANDREW YOUNG vs. DUKE PARTNERS II, LLC

 

ANDREW YOUNG                           MARC D. BENDER

DUKE PARTNERS II, LLC                  sam CHANDRA

 

 

TO TRAIL MOTION TO CONSOLIDATE FILED IN CASE #17-UDL-00004

TENTATIVE RULING:

 

This matter was continued from March 13, 2017 so that Chase Bank could be given notice of this hearing.

 

The Motion to Consolidate this action with Case #17-UDL-00004 is GRANTED. Both actions shall be tried under Case #17-UDL-00004.

 

When title is acquired through a trustee’s sale, courts must make a “limited inquiry” into the basis of the plaintiff's title." (Old National Financial Services, Inc. v. Seibert (1987) 194 Cal.App.3d 460, 465; see also Vella v. Hudgins (1977) 20 Cal.3d 251, 255.) When an unlawful detainer action is brought by a purchaser following a trustee's foreclosure sale, the purchaser must show the sale was conducted according to statutory requirements. (Code of Civ. Proc. §1161a, subd. (b)(3).) “The plaintiff need only prove a sale in compliance with the statute and deed of trust, followed by purchase at such sale . . . .” (Byrne v. Baker (1963) 221 Cal.App.2d 1, 5.) 

 

Young’s civil action alleges that Fay Servicing scheduled and conducted the trustee’s sale despite Young’s having reinstated his loan. If Young properly reinstated his loan and the trustee’s sale should not have proceeded, the sale could be tainted, and the sale could be void or voided. Therefore, Duke Partners II, LLC’s title to the property could be tainted since it was acquired at an allegedly void or voidable sale. The question of whether Duke Partners II, LLC holds valid title is a common question of law and fact between the unlawful detainer action and Young’s civil action to void the sale. The cases should be consolidated.

 

Duke Partners II, LLC’s purported status as a bona fide purchaser does not insulate it from alleged improprieties of the trustee’s sale. The statutory presumption in favor of bona fide purchaser at nonjudicial foreclosure sale pertains only to notice requirements for sale, and not to purchase of property at invalid sale. (Bank of Am., N.A. v. La Jolla Grp. II (2005) 129 Cal.App.4th 706, 713.) Code of Civil Procedure §2924(c), on which Duke Partners II, LLC relies, establishes a conclusive presumption only as to the compliance with statutory requirements concerning “mailing . . . publication . . . personal delivery . . . (and) posting” of notice of default and notice of sale. (Code of Civ. Proc. §2924, subd. (c).) The conclusive presumption does not pertain to whether the trustee initiated the sale process wrongfully, which is the issue here. Young’s civil action does not allege any failure to comply with notice requirements. The conclusive presumption of Section 2924(c) does not apply.

 

The Motion to Stay the Unlawful Detainer Action is denied.  The request for daily rental value is denied without prejudice to seeking an award of daily rental value in the event Duke Partners II, LLC prevails on the unlawful detainer 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.

 



9:01

Line: 8

17-UDL-00004     Duke Partners, II, LLC vs. Andrew Young, et al

 

 

Duke Partners, II, LLC                 SAM CHANDRA

Andrew Young                           MARC D. BENDER

 

 

Motion to consolidate

TENTATIVE RULING:

 

This matter was continued from March 13, 2017 so that Chase Bank could be given notice of this hearing.

 

The Motion to Consolidate this action with Case #17-CIV-00502 is GRANTED. Both actions shall be tried under Case #17-UDL-00004.

 

Because the cases are consolidated, no further stay of the unlawful detainer action is necessary.

 

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.

 



9:01

Line: 9

17-UDL-00086     Breckenridge Property Fund 2016 LLC vs. Hami

                      Pramono, et al.

 

 

 

Breckenridge Property Fund 2016 LLC     KEVIN A. HARRIS

Hami Pramono                           Tiffany R. Norman

 

 

Motion for summary judgment

TENTATIVE RULING:

 

Plaintiff’s Unopposed Motion for summary judgment is GRANTED

With respect to the propriety of the foreclosure sale, the trustee’s deed upon sale states that all requirements of law regarding the mailing, posting or publication of notices of default and notices of sale have been complied with.  See UMF’s 1-2; Request for Judicial Notice, Ex. C.  This recital constitutes prima facie evidence of compliance with these requirements.  Beck, supra; Civil §2924(c).

Plt has also established that def was served with the necessary notice to quit under CCP §1162.  The declaration Freed indicates that def was served with the notice on January 12, 2017.  This method of service is authorized by CCP §1162(3).  See UMF 4. 

Plaintiff has offered evidence to show defs’ continued possession.  The declaration of Olivia Reyes (plt’s asset manager and custodian of records) states that defs remain in possession of the premises up to and including the date of execution of her declaration, which was executed after the complaint was filed

   

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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Line: 10

17-UDL-00126     MERCY HOUSING MANAGEMENT GROUP, INC. vs. RAYMOND

                    BURTON

 

 

MERCY HOUSING MANAGEMENT GROUP, INC.    TIMOTHY S. O'HARA

RAYMOND BURTON                         Pro/per

 

 

motion to compel PRODUCTION OF DISCOVERY AND FOR SANCTIONS

TENTATIVE RULING:

 

Defendant RAYMOND BURTON’s Motion to Compel is GRANTED in its entirety.  Plaintiff MERCY HOUSING MANAGEMENT GROUP, INC. is ordered to provide full and complete, verified responses, without objections, to Form Interrogatories (Set One), Special Interrogatories (Set One), and Inspection Demand (Set One) no later than March 23, 2017.  Plaintiff is further ordered to produce its Person Most Knowledgeable, as well as employees Martin Lathrop and Dale Salazar for deposition no later than March 24, 2017.

 

Plaintiff’s objection to the outstanding discovery, on the basis of the Substitution of Attorney form being filed with the Court two days after discovery was served, is meritless.  Under California law, documents served by a new attorney are effective even when the new attorney has not filed and served formal substitution when parties knew of the change and no one was misled or prejudiced.  Baker v. Boxx (1991) 226 Cal.App.3d 1303; Carrerra v. Carrerra (1953) 121 Cal.App.2d 59, 62. 

 

Defendant’s request for monetary sanctions is GRANTED.  Defense counsel failed to submit a proper itemization of his billing and time records.  Therefore, the court will limit sanctions against plaintiff and its attorney to $1,000.00.

 

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

 

Wednesday, March 22, 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

9:00

Line: 1

CIV511597     FRANCES L. DIAZ VS. MARGARET HUGHES

 

 

FRANCES L. DIAZ                        FRANCES L. DIAZ

MARGARET HUGHES                        PATRICK TALBOT HALL

 

 

Motion to Continue Trial Date

TENTATIVE RULING:

 

Pursuant to stipulation of the parties, Plaintiff’s Motion to Continue   Trial Date is GRANTED. The currently scheduled trial date of April 24, 2017 and MSC date of April 3, 2017 are vacated and the trial is continued to September 11, 2017 at 9:00 a.m. The MSC is re-scheduled to September 1, 2017 at 9:30 a.m.

 

 

 


 

 

Text Box:  

 

 


POSTED:  3:00 PM

 

© 2017 Superior Court of San Mateo County