September 19, 2017
Law & Motion Department Tentative Rulings
  • Law and Motion Department Tentative Ruling Line:  (650) 261-5019
  • Other Judges' tentatives: please reference the appropriate Case Number and Case Caption below and contact the appropriate department.

Telephonic Appearances (CourtCall): If an appearance is required or if a party has provided timely notice of intent to appear by 4:00 p.m. to the court and all parties, any party may appear telephonically through CourtCall. To do so, you must contact CourtCall at (888) 882-6878 no later than 4:30 p.m. on the court day prior to the hearing. Notifying CourtCall with your intent to appear is not an alternative to notifying the court. Please visit their website for more information. Please also see California Rule of Court No. 3.670.

 

In the Superior Court of the State of California

In and for the County of San Mateo

 

Law and Motion Calendar

Judge: Honorable RICHARD H. DuBOIS

Department 16

 

400 County Center, Redwood City

Courtroom 7A

 

Friday, September 15, 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-01605     ENABLEDWARE, LLC., et al. vs. JACK TURNER, et al.

 

 

ENABLEDWARE, LLC.                      SAMIRA AMATO

ROBERT LINDOW                          PRO PER

JACK TURNER                            JOHN S. SIMONSON

 

 

PLAINTIFF/CROSS DEFENDANT’S special MOTION TO STRIKE CROSS COMPLAINT: ANTI-SLAPP

TENTATIVE RULING:

 

Cross-defendant Enabledware’s special motion to strike the cross-complaint filed by Robert Lindow is ORDERED OFF CALENDAR.

 

Default was entered against Enabledware on the cross-complaint on July 14, 2017. As a party in default, Enabledware had no right to file the present motion on July 31, 2017. (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385-86.)

 

Further, as with Enabledware’s previous special motion to strike (See Minute Order, July 21, 2017.), the Proof of Service of motion is not signed under oath.

 

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.

 



9:00

Line: 2

17-CIV-01606     LAWRENCE RIEGLER vs. COUNTY OF SAN MATEO, et al.

 

 

LAWRENCE RIEGLER                       Reuben J. donig

SABREEN FREEMAN

COUNTY OF SAN MATEO                   

 

 

MOTION TO BE RELIEVED AS COUNSEL FOR DEFENDANTS

TENTATIVE RULING:

 

Attorneys BRADLEY, CURLEY, BARRABEE & KOWALSKI, PC’s motion to be relieved as counsel of record for defendant Sabreen Freeman is GRANTED.  Counsel have complied with the requirements of CCP §284 and CRC 3.1362 and the supporting declaration establishes grounds for withdrawal.

 

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, the court will sign and file the proposed order submitted at the time the motion was filed. 

 



9:00

Line: 3

17-CIV-01757     RUSSELL H. TOWNSEND vs. CONSTANCE C. PHIPPS, et al.

 

 

RUSSELL H. TOWNSEND                    Pro/PER

CONSTANCE C. PHIPPS                    THEO S. ARNOLD

 

 

DEFENDANT’S HEARING ON DEMURRER

TENTATIVE RULING:

 

This matter is dropped from calendar as an amended complaint has been filed.

 



9:00

Line: 4

17-CIV-02782     IN RE: THE VILLAgE SERRAMONTE HOMEOWNERS ASSOCAITION

 

 

THE VILLAGE SERRAMONTE HOMEOWNERS ASSOCIATION     STEVEN S. WEIL

 

 

PETITIONER’S MOTION FOR ORDER GRANTING PETITION TO AUTHORIZE APPROVAL OF AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS

TENTATIVE RULING:

 

The Homeowners Association’s petition is GRANTED. 

 

Petitioner has provided evidence sufficient to satisfy the requirements of Civil Code §4275 as follows:

 

1. At least 15 days’ notice of the hearing has been given to all members of the Association [here notice of the order setting the hearing was given by mail on August 8, 2017.  Pursuant to the court’s order, notice of the petition documents was given by posting them on a website on August 18, 2017];

2. Voting was conducted in accordance with the governing documents and all applicable laws [Weil Declaration, ¶8 and Petition at Ex. A]

3. A reasonably diligent effort was made to permit all eligible members to vote on the proposed amendments [See Petersen declaration, ¶¶5- stating that association held several open meetings and distributed many notices between March 2015 and February 2017 in an attempt to persuade embers to vote.  These notices included a summary of the proposed governing documents and secret ballots.  Copies are attached as Ex. F to the Peterson declaration.]

4. Owners having more than 50% of the votes, voted in favor of the amendment [Here, 73% of the owner's voted in favor of the amendments to the CC&R’s and 72% voted in favor of the amended articles.  Id. at ¶6]

5. The amendment is reasonable.   [See Weil declaration, ¶4 explaining that the amendments bring the governing documents into compliance with the Davis-Stirling Common Interest Development Act]

6. Granting the petition is not improper for any reason stated in §4275(e), i.e. the proposed amendment eliminates special rights or privileges or impairs a security interest. [Weil declaration, ¶8].

 

  If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10.  If the tentative ruling is uncontested, moving party is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order is to be submitted directly to Judge Richard H. DuBois, Department 16.

 



9:00

Line: 5

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

 

 

CHARLES TANIGUCHI                      JESSICA GALLETTA

RESTORATION HOMES LLC                  CLAUDIA WILLIAMS

 

 

CHARLES AND MARIE TANIGUCHI’S MOTION FOR SUMMARY ADJUDICATION

TENTATIVE RULING:

 

Restoration Homes Inc. filed a motion for summary judgement or summary adjudication.  That motion is ruled upon separately below.

 

Plaintiffs CHARLES TANIGUCHI and MARIE LOUISE TANIGUCHI have filed a cross-Motion for Summary Adjudication of the First cause of action for violation of Civil Code § 2924c-d and Second cause of action for violation of Bus. & Prof. Code § 17200.  The papers essentially echo the same arguments made in opposition to Restoration’s motion.  Plaintiffs’ Separate Statement contends that the Notice of Default impermissibly contained “deferred principal balance” which Restoration was not entitled to accelerate.  (UMF Nos. 9, 10, and 12, repeated at 24, 25, 39, 40, 54, and 55.)  For the same reasons set forth in Restoration Homes motion, the Court rejects this contention and finds that Plaintiffs are not entitled to summary adjudication of these causes of action pursuant to Code Civ. Proc. § 437c(c).

 

Plaintiffs motion for summary adjudication as to their first and second causes of action is DENIED.

 

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.

 



9:00

Line: 6

CIV528860     ROSEMARY N. CHUKWUDEBE VS. CHRISTOPHER PIRRONE. et al.

 

 

ROSEMARY N. CHUDWUDEBE                 william caspari

CHRISTOPHER PIRRONE                    adam apollo

 

 

DEFENDANT A.O.E. LAW & ASSOCIATES, ANTHONY EGBASE, ONYINYE ANYAMA,

CHIKE EMENIKE, AND ALAN WILCOX’S MOTION FOR ATTORNEY’S FEES AGAINST PLAINTIFF ROSEMARY CHUKWUDEBE IN THE AMOUNT OF $87,172.50 PURSUANT TO CAL. CODE OF CIV. PRO. SECTION 2033.420 AND COSTS

TENTATIVE RULING:

 

For the reasons set forth below, Defendants A.O.E. Law & Associates (AOE), et. al.’s Motion for Attorney’s Fees and Costs is GRANTED-IN-PART and DENIED-IN-PART. 

 

Defendant AOE previously represented Plaintiff in an adversarial bankruptcy proceeding involving Wells Fargo Bank.  That case ended adverse to Plaintiff, after AOE opted not to oppose Wells Fargo’s motion to dismiss Plaintiff’s claims against Wells Fargo, in which Wells Fargo argued Plaintiff’s claims were time-barred by the applicable statute of limitations.  The bankruptcy court granted Wells Fargo’s unopposed motion to dismiss.  In this ensuing malpractice case, Plaintiff sued Defendant AOE and apparently all of its known employee attorneys and paralegals for, among other claims, alleged professional negligence, based on AOE’s failure to oppose the motion to dismiss in the underlying bankruptcy proceeding.  On or about June 19, 2015, Defendants served Requests for Admission (RFAs) on Plaintiff, seeking admission, among other facts, of the fact that she never spoke or interacted with some of the attorneys named in her Complaint, that Defendants did not owe her a duty of care, did not breach any duty of care, and that Plaintiff’s underlying case against Wells Fargo was meritless because it was time-barred.  Plaintiff initially denied the RFAs, then later admitted them in deposition, but only after Defendants had, in the interim, incurred fees and costs defending Plaintiff’s claims.  Defendants AOE, Anthony O. Egbase, Onyinye Anyama, Chike Emenike, Victoria Orafa and Alan Wilcox eventually prevailed on summary judgment.  All except Defendant Orafa then filed the present motion to recover fees and costs under Code Civ. Proc. Sect. 2033.420. 

 

Defendants’ Notice of Motion requests a fee award of roughly $87,000 based on 274.2 claimed hours of clerk and attorney work, plus roughly $3,600 in costs incurred defending the case following Plaintiff’s RFA denials until the granting of Defendants’ summary judgment motion.  See Declarations of Adam Apollo, dated May 25, 2017 and Aug. 14, 2017.  

 

As an initial matter, only moving Defendants Anyama, Emenike, and Wilcox may recover attorney’s fees under Sect. 2033.420.  Defendant AOE (the law firm) cannot recover fees because its own employees represented it in the case.  Soni v. Wellmike Enterprise Co. Ltd. (2014) 224 CA4th 1477, 1485-1490; Trope v. Katz (1995) 11 Cal.4th 274; Witte v. Kaufman (2006) 141 Cal.App.4th 1201, 1211.  Defendants cite no California law supporting their argument that AOE may recover attorney’s fees “incurred” by its own employee attorneys representing it.  AOE also offers no evidence it actually “incurred” any fees.   Defendants’ citation to federal law is inapposite.  Similarly, Defendant Egbase cannot recover fees “incurred” in representing himself.  Trope v. Katz (1995) 11 Cal.4th 274.  Further, Defendant Orafa, although a named Defendant and a party to the prior summary judgment motion, is not a party to this motion for fees and costs.  Accordingly, of the five moving Defendants, only three may recover fees. 

 

The Court also agrees with Plaintiff’s contention that not all of the RFAs at issue serve as a proper basis for a fee request under Sect. 2033.420.  The Court agrees with Defendants that RFAs 5, 24, 27, 29-30 were relevant and improperly denied.  Plaintiff argues she did not know which AOE attorneys worked on her case, and therefore she needed to sue all of AOE’s employees.  This argument lacks merit.  Plaintiff had no reasonable basis for suing all employees of the AOE firm, and at a minimum should have responded to the RFAs by stating she lacked sufficient information to admit or deny whether the named attorneys were actually involved in the case.  However, the Court agrees that RFAs 31-33 do not justify a fee award.  RFA 31 sought admission that AOE did not breach any duty of care.  The MSJ was based on a lack of evidence of causation (based on a finding that Plaintiff’s claim against Wells Fargo was time-barred); it was not based on the existence of a duty; thus RFA 31 was either not of “substantial importance,” or Plaintiff had a “reasonable ground” to deny it.  RFA 32 sought admission that Plaintiff sustained no damage as a result of her case against Wells Fargo being dismissed.  Arguably Plaintiff was damaged by the dismissal.  RFA 33 sought admission that AOE caused Plaintiff no damage.  Plaintiff argues her claim against Wells Fargo was not time-barred due to her “delayed discovery” of the claim, and/or because the claim did not accrue until her mortgage interest rate increased in 2012.  Arguably, Plaintiff had a reasonable expectation she would prevail on the statute of limitations defense. 

 

The Court also agrees with Plaintiff that a large portion of the claimed fees incurred between the RFA responses and the summary judgment motion (the claimed $87,000) were either not directed toward proving the truth of the RFAs, or Defendants have not sufficiently explained the connection between the claimed fees and the RFAs.  For example, if Plaintiff had admitted she only interacted with attorney Egbase, and if the other Defendants had not been named in the Complaint, defense counsel would still have had to take Plaintiff’s deposition. 

 

Plaintiff challenges the claimed fees on additional grounds.  She argues Defendants seek to recover fees incurred on a motion to compel Plaintiffs’ deposition, which was already the subject of a prior motion to compel and a sanctions award, which Plaintiff contends she already paid, and thus Defendants are “double-dipping.” Plaintiff also challenges a large portion of the claimed $87,000 in attorney’s fees incurred in compelling Plaintiff’s deposition, filing discovery motions, demurring to Plaintiff’s complaint, and in filing a motion for terminating sanctions.  Admittedly, distinguishing between fees incurred in proving the truth of the RFAs, and fees that would have been incurred in any event, is difficult.  The burden of establishing the connection ultimately falls on Defendants.  The Court is also cognizant of Plaintiff’s contention that the $350/hr. rate of Sedoo Manu, a law clerk, for 132 hours he spent on the case, is excessive. 

 

In light of the foregoing, Defendants’ request for costs is GRANTED in the amount of $1,911, as follows:  $1,305 ($435 x 3) for the filing fees pertaining to moving parties Anyama, Emenike, and Wilcox (as these Defendants should never have been named), $360 (1/2 of the $721 cost of Plaintiff’s deposition transcript); and $246 (1/3 the $740 cost of filing Demurrers and motions).  See May 25, 2017 Apollo Decl. at Parag. 9.

 

Defendants’ Motion for Attorney’s Fees under Code Civ. Proc. Sect. 2033.420 is GRANTED in the amount of $20,000, plus the $1,911 in costs, for a total award of fees and costs of $21,911.  The $20,000 figure, reduced from the requested $87,000, takes into account (a) AOE’s and Mr. Egbase’s fees are not recoverable, (b) Ms. Orafa is not a party to this motion, (c) a substantial portion of the allegedly incurred fees either were not directed towards proving the truth of the RFAs, or Defendants did not sufficiently explain the connection between the incurred attorney’s fees to the RFA denials, (d) Sedoo Manu’s hourly rate is somewhat excessive given his law clerk status; and (e) several of the RFAs, for the reasons stated above, are not subject to a fee award per Code Civ. Proc. Sect. 2033.420.  

 

Defendants’ objections to the Decl. of William Caspari are OVERRULED, with the exception of Obj. No. 18, which is SUSTAINED as improper opinion testimony (counsel’s characterization of the statute).  Mr. Caspari’s declaration includes characterizations of the claims and allegations asserted in the underlying case involving Wells Fargo, and characterizations of the summary judgment motion.  Both the Wells Fargo case and the summary judgment motion are part of the Court record.  The Court has independently reviewed them in assessing the present motion, and has not relied on any of counsel’s characterizations.

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10.  If the tentative ruling is uncontested, Moving party is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order is to be submitted directly to Judge Richard H. DuBois, Department 16.



9:01

Line: 7

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

 

 

CHARLES TANIGUCHI                      JESSICA GALLETTA

RESTORATION HOMES, LLC.                GCLAUDIA WILLIAMS

 

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

TENTATIVE RULING:

 

Defendant RESTORATION HOMES, LLC’s Motion for Summary Judgment is DENIED on the ground that it does not dispose of all of the causes of action asserted against it by Plaintiffs in this consolidated action.

 

Where several cases are consolidated for trial, they are deemed to constitute a single action, and only one set of findings is ordinarily required.  Capital Nat’l Bank v. Smith (1944) 62 Cal. App. 2d 328.  Upon consolidation of several actions, the court should thereafter treat the actions as a single action by the respective plaintiffs against the defendants, and embody its decision in a single set of findings, upon which a single judgment should be entered.  Willamette Co. v. College Co., (1892) 94 Cal. 229, 232.

 

On February 27, 2017, this Court Consolidated Case 17-CIV-00114 with Consolidated Case CIV 525919. (Plaintiffs’ RJN, Exh. Q.) Upon this Order, 17-CIV-00114 ceased being an independent action and was joined into Consolidated Case CIV 525919 as one action.  Only one judgment can therefore be entered against Restoration.  As Restoration’s motion wholly fails to address the other causes of action in the consolidated matter, including the claims for breach of the covenant of good faith and fair dealing and breach of contract, its request for summary judgment must be denied.

 

The Court acknowledges that Restoration’s second summary judgment motion addressing Plaintiffs’ breach of contract and breach of implied covenant claims is currently scheduled for hearing on September 19, 2017.

 

Restoration’s motion, in the alternative, for summary adjudication of Plaintiffs’ First cause of action for violation of Civil Code § 2924c-d and Second cause of action for violation of Bus. & Prof. Code § 17200, asserted in Consolidated Case No. 17-CIV-00114, is GRANTED.  Restoration has demonstrated that one or more elements of Plaintiffs’ claims cannot be established, and Plaintiffs have failed to meet their burden of showing the existence of a triable issue of material fact.  Code Civ. Proc. § 437c(p)(2); Calvillo-Silva v. Home Grocery (1998) 19 Cal.4th 714, 735.

 

As to the First cause of action for violation of Civil Code § 2924c-d, Plaintiffs contend that according to this statute, Restoration was not permitted to include any portion of the principal balance of their loan in the amount required for reinstatement after Plaintiffs admittedly defaulted on their 2009 Loan Modification.  Ignoring the clear language of the 2009 Loan Modification which granted Restoration the right to revert back to the terms of the original Loan and Deed of Trust should a default occur, Plaintiffs take the position that they should have been able to reinstate their loan pursuant to the terms of the 2009 Loan Modification by simply paying the arrearages that occurred post-modification. 

 

Civil Code § 2924c clearly states that in order to reinstate a defaulted loan, the borrower must pay “all amounts of principal… actually known by the beneficiary to be, and that are, in default and shown in the notice of default.”  Id.  Plaintiffs’ selected language of “all or a portion of the principal sum” from the first sentence of this section clearly addresses those principal amounts that are accelerated by the lender in the event of a default; however, a plain reading of the statute indicates that payment of all defaulted amounts due (including defaulted amounts of principal) will reinstate the loan “as if the acceleration had not occurred.”  Id.

 

Importantly, Plaintiffs do not dispute that they received two loan modifications from their lender.  Under the 2009 Loan Modification, a principal adjustment of $62,552.00 was made to Plaintiffs’ account, with a total deferred indebtedness of $116,225.79.  (UMF Nos. 8, 9.)  Plaintiffs also do not dispute that pursuant to the 2009 Loan Modification, Plaintiffs were to make reduced monthly payments of $2,665.01, and that in the event of default, the lender was authorized to exercise “all rights and remedies provided in the Note and Security Instrument.”  (UMF Nos. 10, 11.)  Plaintiffs do not dispute that in the event of default, the lender had the option of enforcing the Note, Mortgage, and Security Instrument according to the original terms and conditions.  Plaintiffs further do not dispute that under the 2009 Loan Modification, it would be considered a default if Plaintiffs failed to pay the modified payment schedule, or submitted payments late.  (UMF Nos. 12-14.)  

 

Plaintiffs do not dispute that their Note sets forth that payments of principal and interest must be made monthly, and that if payments were not made by the due date, they would be in default.  The Note sets forth how late charges would be added, and further provides at ¶7(C) that the lender may immediately accelerate the full amount of principal and interest in the event of default.  (UMF Nos. 17-20.)  The acceleration remedy is set forth in Covenant 22 of the Deed of Trust, which Plaintiffs do not dispute.  (UMF No. 22.) 

 

Plaintiffs do not dispute that they repeatedly failed to make the full amount of each payment due under the 2009 Loan Modification by the due date, and admit that their wire transfer of $21,320.08 in January 2012 did not cure the entirety of their default, as Plaintiffs failed to pay the undisputed late fees on the account.  Further, following this attempt at reinstatement, Plaintiffs continued to fail to make their monthly mortgage payments.  (UMF Nos. 23 - 38.)  This resulted in a Notice of Default stating that as of September 24, 2013, the amount due on Plaintiffs’ account was $141,200.47, which included four missed payments; late charges; foreclosure fees; and $125,507.43 in previously deferred and/or unpaid principal, interest, and charges.  (UMF No. 40.)

 

Plaintiffs attempt to dispute UMF No. 41, “The amounts listed in the Notice of Default were accurate.”  However, the evidence submitted in support of this UMF do not support Plaintiffs’ contention.  The first document is a declaration of Restoration’s counsel, Mr. Horrell, who stated that the loan was four payments past due (which does not refute what was set forth in the Notice of Default).  The second document is a letter from Plaintiffs’ loan servicer, Mr. Halavais, who set forth the amounts that Plaintiffs needed to pay to reinstate their loan.  This letter is not sufficient to create a triable issue regarding whether the Notice of Default was inaccurate.  (See Decl. Galletta, Exhibit F.) 

 

The only other UMFs to which Plaintiffs attempt to raise a triable issue are UMF No. 46 (“Plaintiffs never attempted to reinstate their Loan by paying the amounts deferred”) and UMF No. 48, “Restoration never requested that Plaintiffs pay the entire accelerated principal”.  As to the former, the only evidence submitted by Plaintiffs in support of UMF No. 46 is the Declaration of Marie Louise Taniguchi and a Request for Judicial Notice of Charles Taniguchi’s Bankruptcy Plan (unsupported by any declaration from him).  The Court is sustaining Restoration’s evidentiary objections to Ms. Taniguchi’s declaration, and denying judicial notice of the truth of the matters set forth in Mr. Taniguchi’s Bankruptcy Plan, as addressed below.  Thus, no triable issue is raised here.

 

As to UMF No. 48, Plaintiffs dispute what constitutes an “accelerated balance”, but this does not raise a triable issue as to Restoration’s contention that it never requested that Plaintiffs pay the “entire” accelerated principal. 

 

Simply put, when Plaintiffs were granted the 2009 Loan Modification, they promised to make reduced monthly payments according to a set schedule, and in exchange, their lender agreed to forebear on and defer the amounts then defaulted ($116,225.79), which included unpaid principal and interest.  Plaintiffs were aware that if they defaulted again following their loan modification, Restoration was authorized to void the loan modification agreement and revert back to the terms of the original loan and deed of trust.  The Note specifically provides at ¶ 7(C) that in the event of default, the lender may require Plaintiffs to pay immediately “the full amount of Principal that has not been paid and all interest that [Borrowers] owe on that amount.”  (UMF No. 20.)  However, Restoration never required Plaintiffs to pay the entire principal balance as a condition of reinstatement.  (UMF No. 48.)  The amounts set forth in the Notice of Default do not constitute an “acceleration of principal” as described in Civil Code § 2924c; rather, Plaintiffs were required to pay the defaulted amounts that were previously deferred under the terms of the 2009 Loan Modification. 

 

Restoration’s motion demonstrates that they were authorized to proceed with foreclosure following Plaintiffs’ admitted numerous failures to make their mortgage payments timely (or at all).  Plaintiffs’ Opposition does not raise a triable issue of material fact.  Accordingly, summary adjudication of the First cause of action for violation of Civil Code § 2924c-d is GRANTED.

 

Plaintiffs’ Second cause of action for violation of Bus. & Prof. Code § 17200 is predicated on the First cause of action; therefore, summary adjudication of this claim is GRANTED as well.

 

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

 

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

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10.  If the tentative ruling is uncontested, Restoration Homes 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.

 



 

 

 

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

 

Friday, September 15, 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

17-civ-03266     christine dancel vs. groupon, inc.

 

 

christine dancel                       LILY E. HOUGH

groupon, inc.

 

 

complex case status conference

TENTATIVE RULING:

 

Pursuant to Stipulation of the parties, this matter is now deemed non-complex and the Complex Case Status Conference is hereby vacated.

 

 


 

 

 

 

 


POSTED:  3:00 PM

 

 

© 2017 Superior Court of San Mateo County