If an appearance is required or if a party has provided timely notice of intent to appear, any party may appear telephonically through Court Call. To do so, you must contact Court Call at (888) 882-6878 no later than 4:30 p.m. on the court day prior to the hearing.

In the Superior Court of the State of California

In and for the County of San Mateo

Law and Motion Calendar

Judge: Honorable GERALD J. BUCHWALD

Department 10

400 County Center, Redwood City

Courtroom 8D

JULY 27, 2010

If you plan to appear on any case on this calendar,

you must call (650) 363-1882 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

CIV 484517 PEOPLE OF THE STATE of california VS. HOMELESS AND DISABLED VETERANS

THE PEOPLE OF THE STATE OF CALIFORNIA ELIZABETH S. KIM

HOMELESS AND DISABLED VETERANS ALLEN WILSON

UNCONTESTED CALENDAR REQUEST.

· PROVE UP HEARING REQUIRED; NO TELEPHONIC APPEARANCES.

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9:00

CIV 493901 AUGUSTIN MENDEZ VS. EMC MORTGAGE CORPORATION, ET AL.

AUGUSTIN MENDEZ DAVID J. WEINSOFF

EMC MORTGAGE CORPORATION JOHN M. SORICH

DEMURRER TO COMPLAINT of MENDEZ BY WELLS FARGO, J.P. CHASE BANK, N.A.

· OFF-CALENDAR. Plaintiff having now filed a First Amended Complaint on July 20, 2010, this Demurrer is now Moot and the matter is Ordered off-calendar.

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9:00

CIV 494180 WANDA O'DONNELL VS. SAN MATEO COUNTY TRANSIT DISTRICT, ET AL.

DENNIS O'DONNELL DOLORES VICTOR

SAN MATEO COUNTY TRANSIT DISTRICT

MOTION TO STRIKE PORTIONS OF COMPLAINT BY DEFENDANT FILED BY SAN MATEO COUNTY TRANSIT DISTRICT

GRANTED WITHOUT LEAVE TO AMEND. The unopposed Motion to Strike Portions of Complaint is Granted Without Leave to Amend.

The prayer of the Complaint requests attorney’s fees and punitive damages.

Calif. Govt. Code, Section 818 provides: “Notwithstanding any other provision of law, a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant.” See also Marron v. Superior Court (2003) 108 Cal.App.4th 1049.

Under CCP Sec. 1021, unless attorney’s fees are authorized by statute or contract, they are not recoverable as costs. Here, the claims made are for negligence and intentional infliction of emotional distress, and there is no statutory or contractual basis for an award of attorney’s fees.

The following portions are hereby stricken from the Complaint: (1) “including attorney’s fees” (Page 9, line 10) and, (2) “For an award of punitive damages, in such amount as will sufficiently punish defendants for defendants’ willful and malicious conduct and as will serve as an example to prevent a repetition of such conduct in the future;” (Page 9, lines 12-14.)

· 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

CIV 494652 SAM R. GOODMAN VS. WASHINGTON MUTUAL BANK, ET AL.

SAM R. GOODMAN ROBERT A. SPANNER

WASHINGTON MUTUAL BANK, FA

DEMURRER TO COMPLAINT of GOODMAN BY J.P. MORGAN CHASE BANK, N.A., AHMAD GHAVI

· SUSTAINED, WITH LEAVE TO AMEND, AS TO CHASE BANK; OVERRULED AS TO DEFENDANT AHMAD GHAVI.

· Based on the allegations of the Complaint, Defendant J.P. Morgan Chase Bank was not involved in the alleged initial loan or involved in the alleged series of annual refinancing that were done by Washington Mutual Bank (WAMU) prior to Chase Bank’s asset purchase of the failed WAMU in late September 2008.

· Furthermore, that asset acquisition did not involve an assumption of any borrowers’ claims for damages or other relief arising out of any WAMU loans made prior to late September 2008. In that regard, the Court takes Judicial Notice of the Purchase and Assumption Agreement between Chase Bank and the FDIC as requested. FDIC was appointed as receiver of WAMU on September 25, 2008 when the Federal Office of Thrift Supervision closed WAMU. Accordingly, FDIC’s relieving Chase Bank of such claims as are made here is an official act of a Federal agency that is proper to Judicially Notice under Evidence Code, Section 352 (b). (See, e.g., Love v. Superior Court (1990) 226 Cal. App.3d 736, at 743 footnote 5, wherein the Court took Judicial Notice of U.S. Department of Public Health Service Guidelines for the fact that AIDS testing had been seen to have a preventive aspect in the spread of the disease.)

· As to Defendant Ghavi, the Complaint does not fail for uncertainty. Nor does it fail to state causes of action for Breach of Fiduciary Duty, Financial Elder Abuse, or Negligence. Based on the allegations, it is clear that Defendant Ghavi was a trusted financial advisor of claimants for more than 20 years, that they reposed great trust and confidence in him, and that Ghavi was not just acting as a lender only, but stepped beyond that limited role to take over substantial management functions as regards of the claimants’ personal financial affairs. Plaintiffs allege that they trusted and followed Ghavi’s financial advice to their great detriment.

· Further, the Complaint here sufficiently states the basis for a Bus. & Prof. Code, Section 17200 claim. Claimants have alleged the necessary standing based on injury in fact. They allege business practices by Mr. Ghavi that, if true, offend all concepts of decent and honest business competition; i.e., practices that are immoral, unethical, oppressive, unscrupulous, and substantially injurious to consumers. The dishonest conduct, over a very long period of time, here arguable was and is harmful to the existence of fair competition in the marketplace. It is exactly that fair competition itself that Section 17200 was adopted to protect.

· Amended Pleadings, if any, as to Chase Bank to be filed within 20 days of this Order. Defendant Ghavi to Answer the existing Complaint as to him within 10 days of this Order.

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9:00

CIV 494710 LIONEL EMDE VS. CITY OF PACIFICA, ET AL.

LIONEL EMDE ERIC J. BENINK

CITY OF PACIFICA MICHELLE MARCHETTA KENYON

DEMURRER TO COMPLAINT of EMDE BY CITY OF PACIFICA

· OVERRULED.

· The Complaint alleges that Defendant City of Pacifica is violating Proposition 218 by planning an increase in rates for trash collection services without providing notice and a public hearing on the rate increase as is allegedly required. Defendant City’s Demurrer is Overruled because the Complaint alleges sufficient facts which, if proven, could constitute a violation of Proposition 218. The demurrer is overruled as to both causes of action.

· Defendant City’s Request for Judicial Notice of the Franchise Agreement is granted. The court does not take judicial notice of the truth of matters asserted in the agreement, but does take judicial notice of the contract terms.

· Proposition 218 precludes “any agency” from assessing any “tax, assessment, fee, or charge” upon any “property or . . . any person as an incident of property ownership . . . .” Calif. Const. Art. 13D, § 3. The Complaint sufficiently alleges the three elements of a violation. It alleges that Defendant City intends to “raise rates and thus levy additional fees” on Plaintiff Emde and other property owners. (Complaint ¶ 11.) Although the Complaint alleges that Defendant City receives a Franchise Fee and other fees from Recology, it does not allege that the Franchise Fee, as defined in the Agreement, is at issue. Rather, Paragraph 11 alleges an intent to increase the rates that are charged residents; it does not allege a modification of the Franchise Fee.

· The Complaint also alleges that the increase is being assessed by Defendant City. (Complaint ¶ 11.) The Franchise Agreement provides that rate changes must be approved by Defendant City. (Agreement, Article 11.) Thus, the complaint sufficiently alleges that Defendant City is, in part, the entity that intends to raise the rates.

· Finally, the Complaint alleges that the services for which the rates are charged are property-related and that they are imposed on parcels and persons as an incident of property ownership. (Complaint ¶ 9.)

· Defendant City of Pacifica to Answer within 20 days of this Order.

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9:00

CIV 494914 J.P. MORGAN CHASE BANK, NA. VS. JOSEPH S. DEASER, ET AL.

J.P. MORGAN CHASE BANK, NA. TIMOTHY J. SILVERMAN

JOSEPH S. DEASER

APPLICATION FOR WRIT OF POSSESSION BY J.P. MORGAN CHASE BANK, NA.

· DENIED WITHOUT PREJUDICE. The Application for Writ of Possession is Denied Without Prejudice for failure to properly serve the Defendant.

· The proof of service is insufficient to support the conclusion that Defendant Joseph Deaser was properly served with the Summons, Complaint, Application for Writ of Possession and supporting documents. Under Code of Civil Proc., § 415.20, a copy of the Summons, Complaint, and other documents, may be left at the dwelling house or usual place of abode of the person to be served if the documents cannot with reasonable diligence be personally delivered to that person.

· Although the allegations in the Complaint assert that Defendant resides in Menlo Park, personal service was only attempted at a Sacramento address, where the documents were left with his Father, according to the proof of service. This purported service on a co-tenant is improper because there has not been the requisite reasonable diligence for personal service. (Code Civil Proc. § 415.20(b).)

· Furthermore, even if service was proper at Defendant’s supposed residence in Sacramento, then there is no alleged basis for jurisdiction in San Mateo Superior Court. If his residence is not here, then the only other basis for jurisdiction would be the place where the vehicle purchase occurred. The contract for the purchase of the vehicle, attached as Exhibit 1 to the Complaint, shows that the contract was entered into in San Francisco County.

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9:00

CLJ 482209 JONG S. HAN VS. KELLEY Y. GER

JONG S. HAN STEPHEN BENDA

KELLEY Y. GER LINDA L. MALLETTE

MOTION FOR LEAVE TO FILE CROSS-COMPLAINT FILED BY KELLEY Y. GER

· HEARING REQUIRED.

· Movant’s counsel needs to clarify as to whether or not, in fact, she is again actually acting as counsel of record herein. Although Ms. Mallette’s Declaration filed July 19, 2010 refers to a recent Substitution of Attorneys re-appointing her in the case, no such Substitution is either attached to her Declaration or filed with the Court. The status of the Court’s file is that she was relieved by Order filed June 4, 2010, and the May 28, 2010 letter requesting that the Motion to withdraw go off-calendar was not received by the Court.

· If a proper Substitution reinstating Ms. Mallette as counsel of record is filed by the time of Hearing, the Court is inclined to Grant the Motion. The proposed cross-complaint is clearly a compulsory claim; it alleges that Plaintiff Han overbilled for the services that are the subject of his complaint. The only issues are (1) whether Plaintiff Han would be unduly prejudiced by allowing the cross-complaint and (2) whether Defendant Ger acted in good faith. Neither undue prejudice nor bad faith is apparent here.

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9:00

CLJ 483599 AMERICAN EXPRESS TRAVEL RELATED SERVICES VS. DEBORAH SNEAD

AMERICAN EXPRESS TRAVEL RELATED SERVICES ERICA L. BRACHFELD

DEBORAH SNEAD

MOTION FOR ORDER SETTING ASIDE AND VACATING DEFAULT FILED BY AMERICAN EXPRESS TRAVEL RELATED SERVICES

· GRANTED. Although the Movant cannot have statutory relief at this point because more than six months since entry of default and default judgment have run (See CCP, Section 473 (b) ), the Court in the interests of justice, given that the suing creditor is requesting the relief on the grounds that it made a mistake in requesting a default be entered in the first place, will treat the Motion as addressed to the Court’s inherent equitable power to set aside the default and default judgment. (See Davis v. Thayer (1980) 113 Cal. App.3d 892, at 910.)

· Movant’s counsel to prepare a form of Order vacating default and default judgment and submit same to the Court.

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9:00

CLJ 486944 TARGET NATIONAL BANK VS. CARMEN GUZMAN

TARGET NATIONAL BANK MICHAEL R. BOULANGER

CARMEN GUZMAN PRO/PER

MOTION FOR SUMMARY JUDGMENT AS TO COMPLAINT of TARGET NATIONAL BANK FILED BY TARGET NATIONAL BANK

· GRANTED. Plaintiff’s Motion for Summary Judgment is Granted. Plaintiff has met its initial burden pursuant to CCP § 437c(p)(1) through the written revolving credit agreement, the invoices and billing records, and the Declaration of Ryan Flynn, their designated agent. Defendants have not raised any triable issues of material fact in response. Defendants have simply not responded. Judgment for Plaintiff in the principal amount of $4,588.71 principal; pre-judgment interest at 10% per annum from September 6, 2009 in the amount of $275.32; and costs of $525.00.

· Movant’s counsel to prepare and submit a form of Order and form of Judgment to be submitted to the Court.

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9:00

CLJ 490129 CITIBANK (SOUTH DAKOTA), NA. VS. ALEXANDER MILAN

CITIBANK (SOUTH DAKOTA), NA. JANALIE HENRIQUES

ALEXANDER D. MILAN PRO/PER

MOTION FOR JUDGMENT ON THE PLEADINGS FILED BY CITIBANK (SOUTH DAKOTA), NA.

· GRANTED. Plaintiff CitiBank N.A.’s Motion for Judgment on the Pleadings is Granted. Defendant Milan has filed an Answer which does not dispute any of the allegations of the Complaint and offers no affirmative defenses. Plaintiff is awarded Judgment as follows: $2,841.86 principal and costs of $215.00.

· Movant’s counsel to prepare a form of Order and form of Judgment to be submitted to the Court.

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9:01

CIV 474977 LOIS BOYD VS. MILLS PENINSULA HOSPITAL

LOIS BOYD MARYLON M. BOYD

MILLS PENINSULA HOSPITAL DAVID SHEUERMAN

MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT FILED BY LOIS BOYD, MARYLON BOYD

· HEARING REQUIRED PER THE COURT’S MINUTE ORDER OF JULY 15, 2010; NO TELEPHONIC APPEARANCES; MS BOYD TO BE PERSONALLY PRESENT.

MOTION TO STRIKE THIRD AMENDED COMPLAINT FILED BY MILLS PENINSULA HOSPITAL, KATHLEEN PARKER

· HEARING REQUIRED PER THE COURT’S MINUTE ORDER OF JULY 15, 2010; NO TELEPHONIC APPEARANCES; MS BOYD TO BE PERSONALLY PRESENT.

DEMURRER TO THIrd Amended COMPLAINT of BOYD BY MILLS PENINSULA HOSPITAL, KATHLEEN PARKER

· HEARING REQUIRED PER THE COURT’S MINUTE ORDER OF JULY 15, 2010; NO TELEPHONIC APPEARANCES; MS BOYD TO BE PERSONALLY PRESENT.

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9:01

CIV 485635 GRAY * DUFFY, LLC. VS. ALLIED FRAMERS, INC.

GRAY * DUFFY, LLC. BARRY D. BROWN

ALLIED FRAMERS, INC. DAWN CEIZLER

DEMURRER TO SECOnd Amended CROSS-COMPLAINT of ALLIED FRAMERS, INC. BY GOLDEN BEAR INSURANCE COMPANY

· FURTHER HEARING REQUIRED PER THE COURT’S ORDER OF JULY 14, 2010. Counsel to further address: (1) How there can be any basis for the bad faith claim here given that the Defendant excess carrier has paid its entire policy limits in settlement of the underlying case? (2) Why, in any event, the Court should not strike the punitive damages prayer based on the arguably obvious lack of malice, fraud, or oppression reflected in the Defendant excess carrier’s payment of its entire policy limits in settlement of the underlying case?

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9:01

CLJ 201917 WILLIAM R. SINGLETON VS. HEATHER CURRY, ET AL.

WILLIAM R. SINGLETON PRO/PER

HEATHER CURRY

MOTION TO QUASH SERVICE OF SUMMONS FILED BY HEATHER CURRY

· DENIED WITHOUT PREJUDICE. Defendants Heather Curry’s Motion to Quash is Denied Without Prejudice for lack of proper service. Eight days’ notice was required. The motion to quash must be set for hearing on not less than three days notice pursuant to CCP §418.10(a) and Local Rule 3.15(b). With a minimum of 3 day’s notice, plus 5 additional days for mailing, pursuant to CCP §1005, the earliest date this motion could be heard is July 28, 2010. Further, defendant is seeking to quash service that has never been effected. No substantive grounds have been stated for the Motion to Quash.

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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 Stephen m. hall

Department 24

400 County Center, Redwood City

Courtroom 2C

JULY 27, 2010

If you plan to appear on any case on this calendar,

you must call (650) 363-4812 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

CIV 476398 KEMBCON CORPORATION VS. OMAR ALZGOUL

KEMBCON CORPORATION CATHLEEN M. CURL

OMAR ALZGOUL J. EDWARD KERLEY

RELIEF FROM WAIVER OF JURY TRIAL

· Motion for Relief from Waiver of Jury Trial is granted.

· Defendant Alzgoul's demand for jury trial has been set forth in the record since at least July 2009. Defendant Alzgoul's counsel posted jury fees, albeit some days late, in February 2010 for the former March 1, 2010 trial. The March 1st trial was reset to June 1, 2010.

· On June 2, 2010, all parties announced ready and the matter was assigned to Judge Julie Conger for jury trial. The issue of late deposit of jury fees was first raised with Judge Conger and it was left for her to decide if the matter would proceed by way of jury trial or court trial. It was then determined that the parties were not ready for trial and Judge Conger referred the matter the matter back and it was put over to set a new trial date.

· The current jury trial is scheduled for October 12, 2010. A judge should always resolve any doubts in favor of allowing a jury trial (Wharton v Superior Court (1991) 231 Cal.3d 100). This is not the type of situation by way of the cases cited by the opposing parties in which trial courts denied relief from jury waiver when they occurred 5 days or less prior to trial. Given this factual setting, this Court believes the failure to grant said motion would constitute an abuse of discretion.

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