August 24, 2016
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 susan irene etezadi

Department 18

 

400 County Center, Redwood City

Courtroom 2M

 

Friday, August 19, 2016

 

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

CIV535197

ADRIAN RODRIGUEZ, ET AL. VS. MILLS PENINSULA MEDICAL center

 

 

ADRIAN RODRIGUEZ

PHILIP MICHELS

MILLS PENINSULA MEDICAL CENTER

JAMES M. GOODMAN

 

 

MOTION FOR SUMMARY JUDGMENT AS TO COMPLAINT OF RODRIGUEZ FILED BY MILLS PENINSULA MEDICAL CENTER

TENTATIVE RULING:

 

Pursuant to stipulation of the parties and order of the court, this motion is continued to November 2, 2016, at 9:00 A.M. in the Law and Motion Department. 

 

 

 

 

 

 

9:00

 

LINE 2

CLJ539081

JILL MONDRY VS. LEONARD CARACCIO

 

 

JILL M. MONDRY

MARTIN M. EISENBERG

LEONARD W. CARACCIO

 

 

 

PETITION TO COMPEL ARBITRATION AND FOR APPOINTMENT OF ARBITRATOR

TENTATIVE RULING:

 

Petitioner JILL M. MONDRY’s Petition to Compel Arbitration is GRANTED pursuant to Code Civ. Proc. Section 1281.2.  As provided in Code Civ. Proc. Section 1281.6, the Court nominates the following individuals, all of whom are affiliated with ADR Services, Inc. in San Francisco, as arbitrators: Hon. Rosemary Pfeiffer, Ret.; Hon. Margaret Kemp, Ret.; Hon. Ina Levin Gyeman, Ret.; Comm. Glenn Oleon, Ret.; and Hon. Charlotte Woolard, Ret.  Within five days of receipt of notice of the Court’s nominees, the parties may jointly select their arbitrator, whether or not the arbitrator is among the nominees.  If the parties fail to select an arbitrator within the five-day period, the Court will appoint the arbitrator from the nominees.  Accordingly, a further hearing on this petition is set for September 9, 2016 in Dept. 18. 

 

Petitioner is to provide notice to Respondent of the Court’s nominees, and is ordered to file a declaration no later than September 6, 2016 apprising the Court of whether the parties have been able to agree on an arbitrator. 

 

Petitioner’s request for recovery of her costs of suit on this petition is DENIED. 

 

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, 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 to 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 Susan Irene Etezadi, Department 18, for the Court’s signature.

 

 

 

 

 

 

 

9:00

 

LINE 3

CIV526225

CINDY JEPSEN VS. PAMELA DAVIS

 

 

 

CINDY JEPSEN

GREGORY C. CATTERMOLE

PAMELA DAVIS

 

 

 

Motion to Dismiss

 

TENTATIVE RULING:

 

The Motion of Defendant Pamela Davis (“Defendant’) to Dismiss Plaintiff Cindy Jepsen’s (“Plaintiff”) Action for Delay in Prosecution, is GRANTED. 

 

The court has discretion to dismiss the action if the defendant is not served within two years after the action is commenced.  (See Code of Civ. Proc. § 583.420(a)(1).)  “The court may grant or deny the motion or, where the facts warrant, the court may continue or defer its ruling on the matter pending performance by either party of any conditions relating to trial or dismissal of the case that may be required by the court to effectuate substantial justice.”  (See Cal. Rules of Court, Rule 3.1342(f).) 

 

California Rules of Court, Rule 3.1342(e) provides that the court must consider all relevant matters to a determination on this motion, including factors such as the court’s files and declarations, and Plaintiff’s diligence in seeking to serve Defendant.  The court must be guided by the policies set forth in Code of Civil Procedure section 583.130, which are that a plaintiff proceeds with reasonable diligence in prosecution of an action but that all parties shall cooperate in bringing the action to trial or other disposition.  (See Cal. Rules of Court, Rule 3.1342(e); Code of Civ. Proc. § 583.130.)

 

After considering all relevant matters and the policies behind section 583.130, the court finds that dismissal is warranted.  The court recognizes the general policy favoring a trial on the merits, but the court exercises its discretion here to grant dismissal because Plaintiff has not provided any reasonable or excusable delay for failing to diligently serve Defendant since the complaint was filed on January 13, 2014, more than two years ago.  (See Hilliard v. Lobley (1989) 216 Cal.App.3d 638.) 

 

Plaintiff’s counsel claims that he does not have the information needed to locate Defendant, and that Defendant has a common name that makes it difficult to serve Defendant.  (See Plaintiff’s counsel’s decl., ¶ 5.)  Plaintiff’s counsel states that the efforts are continuing to serve Defendant, and that Plaintiff hopes to have an order for service by publication by the hearing on this motion.  (Ibid.)  Plaintiff’s counsel’s declaration fails to set forth facts though, as to what efforts have been made over the past two years to narrow down Defendant’s location.  Indeed, the minutes from the case management conference on July 11, 2014 show that Plaintiff indicated at that time that Plaintiff may need to serve Defendant by publication.  Yet over two years later and after this motion was filed, Plaintiff still has not applied to serve Defendant by publication. 

 

Such delay in serving Defendant therefore is not reasonable or excusable, and this action is hereby DISMISSED without prejudice.

 

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, 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 to 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 Susan Irene Etezadi, Department 18, for the Court’s signature.

 

 

 

 

 

 

 

9:00

 

LINE 4

CIV538181

WALTER HARRELL, ET AL. VS. DEUTSCHE BANK NATIONAL

    TRUST COMPANY

 

 

WALTER HARRELL

PRO/PER

DEUTSCHE BANK NATIONAL TRUST COMPANY

MARK JOSEPH KENNEY

 

 

Motion For Judgment on Pleadings

TENTATIVE RULING:

 

The court disregards Plaintiffs’ Opposition papers, filed August 12, 2016, since there is no showing that Plaintiffs served the papers on any party. The court notes, however, that even if the Opposing papers were considered, they fail to address the grounds raised in the motion. The Court reminds Plaintiffs to comply with Code of Civil Procedure section 1005, subd. (c) (all opposition and reply papers must be served).

 

The motion is granted as to the first cause of action (cancellation of instruments).  The complaint alleges only a conclusion that MERS had no authority to record the Notice of Default, but no ultimate facts supporting the conclusion. Further, the judicially noticeable documents establish a prima facie that the trustee conferred upon MERS the right to record the Notice of Default.  Defendant’s alternative argument that the statute of limitations bars this action has no merit. The cause of action seeks to cancel the Notice of Sale, which was recorded March 9, 2012. Plaintiff suspended the statute of limitations by filing the first action on March 28, 2012, until dismissing it March 19, 2014. (Record Mach. & Tool Co. v. Pageman Holding Corp., 172 Cal. App. 2d 164, 175–76 (statute suspended during pendency of action).) When Plaintiffs filed the present action, the three year statue had run for less than three years. 

 

The motion is granted as to the second cause of action (wrongful foreclosure). The statutes governing nonjudicial foreclosure (Civ. Code sections 2920 et seq.) are exhaustive and comprehensive. The statutes do not permit a borrower to bring a court action “to determine whether the owner of the Note has authorized its nominee to initiate the foreclosure process.” (Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal. App. 4th 1149, 1154.)  Defendant’s alternative argument (tender rule) does not apply to cases in which a foreclosure sale has not occurred. (Pfeifer v. Countrywide Home Loans, Inc. (2012) 211 Cal. App. 4th 1250, 1280-81.)

 

The motion is granted as to the third cause of action (unfair business practices).  Standing to assert a UCL claim must be pleaded by alleging a loss of money or property caused by the allegedly unfair business practice. Plaintiffs allege no loss of money or property. The complaint also fails to allege any business practice that was unfair, unlawful, or likely to deceive the public.

 

The motion is granted as to the fourth cause of action (slander of title). Defendants incorrectly assert that recorded documents pursuant to nonjudicial foreclosure are “absolutely privileged” pursuant to Civil Code section 2924(d)(1) & (3). The recording statutes do not provide an absolute privilege. (Kachlon v. Markowitz, 168 Cal. App. 4th 316, 339–40.) Rather, they provide only a qualified privilege. (Id. at 340-41.) Regardless the court grants the motion for failure to state a cause of action. When a complaint reveals a privilege, the plaintiff must plead facts establishing malice. “(A)ctual facts must be alleged, unless they are apparent from the statement itself.” (Tschirky v. Sup. Ct. (1981) 124 Cal.App.3d 534, 538-539.) The “mailing,  publication, and delivery of notices” required as part of the nonjudicial foreclosure process are privileged. (Civ. Code sect. 2924, subd. (d)(1).) Therefore, a plaintiff must also allege that the recording was done with malice, “motivated by hatred or ill will” or without reasonable grounds for belief in the truth of the publication...” (See Kachlon, supra, 168 Cal.App.4th at 336.) Plaintiffs fail to meet this pleading requirement.

 

The motion is granted as to the fifth cause of action (declaratory relief). Plaintiffs seek a declaration from the Court “regarding the rights and duties of the parties” based on their allegations that foreclosure is void due to false recorded documents. This relief, however, is already the subject of the first through fourth causes of action, which are insufficiently pleaded.  The fifth cause of action alleges no facts upon which to base the contention that a legal controversy exists between the parties.

 

Plaintiffs shall have leave of court until September 2, 2016, to file and serve an amended complaint.

 

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, 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 to 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 Susan Irene Etezadi, Department 18, for the Court’s signature.

 

 

 

 

 

 

 

 

9:00

 

LINE 5

CIV533797

BERNABE HERNANDEZ VS. BRIDGET FIONA CONNOLLY

 

 

BERNABE HERNANDEZ

JOSEPH JUNG

BRIDGET FIONA CONNOLLY

 

 

 

Motion to be Relieved as Counsel

TENTATIVE RULING:

 

The Motion to be Relieved as Counsel of Record is DENIED for failure to provide proof that the moving papers were served in compliance with CCP §1005 and CRC 3.1362(d).

      

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, 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 to 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 Susan Irene Etezadi, Department 18, for the Court’s signature.

 

 

 

 

 

 

 

 

9:00

 

LINE 6

CIV538785

MICREL LLC VS. RAY ZINN

 

 

MICREL LLC

CATHERINE A. CONWAY

RAY ZINN

DANIEL C. HUBIN

 

 

Hearing on Demurrer

TENTATIVE RULING:

 

 

Motion TO SEAL PURSUANT TO CALIFORNIA RULE OF COURT 2.551(b)

TENTATIVE RULING:

 

The Motion to Seal is GRANTED.  Defendant has made the showing required by CRC 2.550(d).  The confidentiality clause in the parties’ severance agreement constitutes an overriding interest that supports the requested sealing.  Absent an order sealing the exhibit, defendant’s interest would be prejudiced as he would be in violation of the agreement and subject to penalties.  Moreover, the agreement contains confidential information which, if disclosed publicly, would prejudice plaintiff’s independent privacy interest by interfering with its ability to compete in the marketplace.  See Carr Declaration, Paragraphs 3-4. Given the terms of the confidentiality provision, no less restrictive means exist to protect defendant’s interest and the request is narrowly tailored.

  

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, 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 to 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 Susan Irene Etezadi, Department 18, for the Court’s signature.

 

 

Motion to Strike LIQUIDATED DAMAGES ALLEGATIONS

TENTATIVE RULING:

 

OFF CALENDAR/MOOT AS PLAINTIFF FILED AN AMENDED COMPLAINT

 

 

 

 

 

 

 

 

9:00

 

LINE 7

CIV508888

CINDY K. HUNG, ET AL. VS. TRIBAL TECHNOLOGIES, ET AL.

 

 

CINDY K. HUNG

LYNDA HUNG

TRIBAL TECHNOLOGIES

KASEY C. TOWNSEND

 

 

Motion to Compel

TENTATIVE RULING:

 

Plaintiffs LI CHING CHU and ROBERT CHING LIANG HUNG’s Motion to Compel Compliance with Subpoena is DENIED.  Third party Glenborough 400 ECR, LLC has served a response and has made previous assertions that it has no responsive video in its possession, custody or control.  Accordingly, the motion to compel is denied.

 

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, 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 to 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 Susan Irene Etezadi, Department 18, for the Court’s signature.

 

 

 

 

 

 

 

9:00

 

LINE 8

CIV539082

JOHN P. MEYER VS. CYNTHIA HORTON

 

 

JOHN P. MEYER

DONALD BLOOM

CYNTHIA HORTON

S. SAMANTHA SEPEHR

 

 

Hearing on Demurrer

TENTATIVE RULING:

Defendant’s Demurrer is SUSTAINED IN PART, and OVERRULED IN PART, as follows:

The Demurrer to the First Cause of Action for fraud by “intentional or negligent misrepresentation” is SUSTAINED WITH LEAVE TO AMEND.  Given the requirement that fraud must be plead with specificity, the Complaint should identify where the parties were located at the time of the alleged misrepresentation, and whether the misrepresentation was made by telephone, email, in person, or otherwise.  CACI 1901.     

The Demurrer to the Second Cause of Action for fraud by concealment is SUSTAINED WITH LEAVE TO AMEND.  If read in isolation, Defendant would be correct that the Second Cause of Action does not plead the elements for fraud by concealment.  CACI 1901.  But read together with the remainder of the Complaint, including the First Cause of Action, the elements are for the most part set forth, although not with enough specificity.  West v. JPMorgan Chase Bank, 214 Cal.App.4th 780, 804 (2013) (“Read in isolation, this allegation did not clearly and specifically allege a promise made by Chase Bank.  But we do not read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the complaint “as a whole and its parts in their context.”).  A fiduciary relationship is not necessarily required.  CACI 1901.  However, as with the First Cause of Action, given the requirement that fraud be plead with specificity, the Complaint should identify where the parties were located at the time of their alleged communications in January and May of 2016, during which the concealment allegedly took place, and whether those communications were by telephone, email, in person, or otherwise. 

The Demurrer to the Third Cause of Action for fraud by “promise without intent to perform” is SUSTAINED WITH LEAVE TO AMEND.  The Complaint for the most part alleges the required elements for this cause of action.  CACI 1902.  But as with the First and Second Causes of Action, since fraud must be plead with specificity, the Complaint should identify where the parties were located at the time of Defendant’s alleged promise in January and May of 2016, and whether the promise was made by telephone, email, in person, or otherwise.   

The Demurrer to the Fourth Cause of Action for conversion is SUSTAINED WITHOUT LEAVE TO AMEND.  The “property” alleged to have been converted here is the life insurance policy proceeds.  “To establish a conversion, plaintiff must establish an actual interference with his ownership or right of possession . . . . Where plaintiff neither has title to the property alleged to have been converted, nor possession thereof, he cannot maintain an action for conversion.” Moore v. Regents of the Univ. of California, 51 Cal.3d 120, 135 (1990); Amerus Life Ins. Co. v. Bank of America, 143 Cal.App.4th 631, 642 (2006) (“the gravamen of a conversion claim is the wrongful interference with another’s property rights.  There could have been no conversion unless [plaintiff] was entitled to possess the checks at the time [defendant] negotiated them.”); Cook v. Cook, 17 Cal.2d 639, 643 (1941) (“in an ordinary life insurance policy where the insured reserves the right to change the beneficiary named therein, such change may be made by him at any time prior to his death . . . . the beneficiary has no such vested right therein prior to the death of the insured”).  Here, Plaintiff did not have title to, or the right to possess, the insurance policy proceeds, and therefore has no claim for conversion of those proceeds.  Code Civ. Proc. Section 430.10(e) (“The pleading does not state facts sufficient to constitute a cause of action”). 

The Demurrer to the Fifth Cause of Action for elder abuse is SUSTAINED WITHOUT LEAVE TO AMEND on grounds that Plaintiff has not opposed the Demurrer, and lacks standing to assert a claim for elder abuse under Cal. Welf. & Inst.Code § 15657.3.  Code Civ. Proc. Section 430.10(b) (“the person who filed the pleading does not have the legal capacity to sue”); Code Civ. Proc. Section 430.10(e) (“The pleading does not state facts sufficient to constitute a cause of action”).

 

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, 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 to 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 Susan Irene Etezadi, Department 18, for the Court’s signature.

 

Motion to QuasH

 

TENTATIVE RULING:

 

Defendant’s Motion to Quash Service of the Summons and Complaint on grounds of lack of personal jurisdiction is DENIED.  While the fraud claims involve communications between the parties in 2016, they are based on Defendant’s alleged act of changing the beneficiary information on her father’s life insurance policy in 2014, at which time Defendant was living in California, where she had been living and working for many years.  Plaintiff also alleges that after Defendant moved to Texas in 2015, she initiated repeated phone calls and email communications to Plaintiff and his attorney in California, for the purpose of discussing and obtaining their assistance regarding a power of attorney and her father’s life insurance policy, during which communications she allegedly committed fraud.  Thus, the lawsuit arises from Defendant’s alleged activities in California, and her actions directed to California, which is also where the bulk of the evidence and witnesses are located.  Given the foregoing, the Court finds it has jurisdiction over Defendant, and that exercising it under the circumstances would not be unfair or unreasonable.  Further, the Plaintiff resides in California and contends his failing health would make it virtually impossible to attend a trial in Texas. 

 

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, 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 to 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 Susan Irene Etezadi, Department 18, for the Court’s signature.

 

 

 

 

 

 

 

 

9:00

 

LINE 9

CIV534510

GATEWAY BANK, ET AL. VS. POPPI METAXAS

 

 

GATEWAY BANK, F.S.B.

BRANDON CARR

POPPI METAXAS

CRAIG C. DANIEL

 

 

MOTION TO TAKE DISCOVERY OF DEFENDANT’S FINANCIAL CONDITION

TENTATIVE RULING:

 

Plaintiff Gateway Bank’s Motion to Permit Discovery of Defendant Metaxas’ Financial Condition is GRANTED pursuant to Civil Code §3295(c). The plaintiff has demonstrated a substantial probability that they will prevail on their punitive damage claim.  This supports the discovery of defendant’s financial condition. Civil Code 3294(c)(1). See Barton v. Alexander Hamilton Life Ins. Co. (2003) 110 Cal.App.4th 1640, 1644.

 

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, 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 to 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 Susan Irene Etezadi, Department 18, for the Court’s signature.

 

 

 

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 JOHN L. GRANDSAERT

Department 11

 

400 County Center, Redwood City

Courtroom 2D

 

Friday, August 19, 2016

 

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

 you must call (650) 261-5111 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

 

 

CIV532816

LAWRENCE & KIMBERLY SHAPIRO VS. ERIC LUNDAHL

 

 

KIMBERLY SHAPIRO

MICHAEL V. NUDELMAN

ERIC LUDAHL

PETER M. HART

 

 

MOTION FOR ORDER GRANTING Preference to TRIAL date

TENTATIVE RULING:

 

The Motion for Order Granting Preference to Trial Date is DENIED.

 

 

 

 

In the Superior Court of the State of California

In and for the County of San Mateo

 

Special Set Calendar

Judge: Honorable JOSEPH C. SCOTT

Department 25

 

400 County Center, Redwood City

Courtroom 2G

 

Friday, August 19, 2016

 

IF YOU INTEND TO APPEAR ON ANY CASE ON THIS CALENDAR YOU MUST DO THE FOLLOWING:

3. YOU MUST CALL (650) 261-5125 BEFORE 4:00 P.M. TO INFORM THE COURT OF YOUR INTENT TO APPEAR.

4. 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

 

 

Line 1

 

PRO124018

CONSERVATORSHIP OF ANGELINA SANTIAGO TORRES

 

 

 

 

WELLS FARGO HOME MORTGAGE

JOHN F. CAVIN

 

ANGELINA SANTIAGO TORRES

ROBERT E. DAYE

 

 

 

HEARING ON PETITION AND PETITION FOR PROTECTIVE ORDER

 

TENTATIVE RULING:

 

Appear.

 

 

Motion for Summary ADJUDICATION

 

TENTATIVE RULING:

 

The Motion by Respondents Wells Fargo Bank N.A., Wells Fargo Home Mortgage, and Insun G. Son for Summary Adjudication that the causes of action for Intentional Concealment, Conspiracy, Negligence, Money Had and Received, and Unfair Competition are without merit is GRANTED.

 

First, Petitioner Elsa Torres, Conservator of the Person of Angelina Santiago Torres, has failed to file a Responsive Statement of Disputed and Undisputed Fact. That alone is grounds for granting a motion for summary adjudication. (Oldcastle Precast, Inc. v. Lumbermens Mut. Cas. Co. (2009) 170 Cal.App.4th 554, 568.)

 

Second, Respondents’ evidence establishes a prima facie case that Respondents are entitled to Judgment as a Matter of Law with Respect to the causes of action for Intentional Concealment, Conspiracy, Negligence, Money Had and Received, and Unfair Competition.

 

Third, Petitioner’s Evidentiary Objections are OVERRULED.  Specifically,

 

·         Objection #1 to the Request for Judicial Notice of Petitioner’s First Amended Petition is OVERRULED on the grounds that the facts alleged therein are judicial admissions that are binding on Petitioner. 

 

·         Objection #2 to the Request for Judicial Notice of a Deed of Trust on the grounds of lack of foundation is OVERRULED on the grounds that the foundation requirement for judicial notice is provided in Evidence Code § 453, that such foundation is satisfied by Petitioner, and that the Foundation Requirements of Evidence Code § 1401 do not apply to a request for judicial notice.

 

·         Objection #3 to the Declaration of Insun G. Son on the grounds that Ms. Son’s testimony concerning statements made by Dr. Ted Carroll are barred by CCP § 437c(e) 13 and 14 is OVERRULED.  Such sections do not provide for the exclusion of evidence but authorize a court to exercise its discretion to deny a motion for summary adjudication where there is only a single witness to a fact or the evidence pertains to a state of mind.  As discussed below, this court declines to exercise its discretion to deny the motion on those grounds.  The referenced paragraphs of the declaration of Insun G. Son are not facts to which there is a single witness as both Insun G. Son and Dr. Ted Carroll are eyewitnesses to such facts. As discussed below, the evidence establishes that Dr. Ted Carroll acted as agent for Angelina Santiago Torres and a principal is conclusively presumed to have knowledge of facts known to her agent.  Finally, the facts in question are operative acts, representations on which Insun G. Sun relied and which were confirmed in escrow instructions executed by Angelina Santiago Torres.

 

·         Objection #4 to the Declaration of Insun G, Son are made on the same grounds as raised in Objection #3 and is OVERRULED on the same grounds as those stated with regard to Objection #3.

 

·         Objection #5 to the Declaration of Richard Vujovich is made on the same grounds as raised in Objection #3 and is OVERRULED on the same grounds as those stated with regard to Objection #3.

 

·         Objection #6 to the Declaration of Andrew Noble on the grounds that this court’s order granting summary judgment with regard to Amy Doung is not sufficiently final to be entitled to res judicata or collateral estoppel effect is OVERRULED.  Neither the doctrine of res judicata nor collateral estoppel are rules governing the admissibility of evidence; to the contrary they simply preclude certain issues from being litigated a second time.  Here, this court’s ruling that Amy Doung was not member of a conspiracy with the remaining respondents is obviously relevant to whether judgment can be entered as a matter of law with regard to the claim of conspiracy.  The converse is also true.  If there were triable issues of material fact as to whether Amy Doung was a participant in a conspiracy with the remaining respondents, there would necessarily be triable issues of material fact as to whether respondents participated in a conspiracy.

 

·         Objection #7 to the Order Granting Amy Doung’s Motion for Summary Judgment on the same grounds as Objerction #6 is OVERRULED on the same grounds as those stated for Objection #6.

 

·         Objection #8 to the Request for Judicial Notice of a Declaration authenticating Escrow Instructions executed by Angelina Santiago Torres on the grounds that Judicial Notice  cannot be taken of the truth of matters asserted in court documents is OVERRULED.  The escrow instructions represent a contract between Angelina Santiago Torres and the Escrow Holder which qualifies as an act of independent significance and is not offered for the truth of the matter asserted.   

 

Fourth, this court declines to exercise its discretion to deny the instant Motion for Summary Adjudication pursuant to CCP § 437c(e) 13 and 14. (Butcher v. Gay (1994) 29 Cal.App.4th 388, 404-405; Violette v. Shoup (1993) 16 Cal.App.4th 611, 621; Golden West Baseball Co. v. Talley (1991) 232 Cal.App.3d 1294, 1305-1306.)  

First, papers filed by Petitioner concede that Petitioner has no evidence to controvert facts on which Petitioner will bear the burden of proof at trial.  Under these circumstances a trial would serve no purpose because Respondents would be entitled to a directed verdict or judgment n.o.v. unless such burden of proof were satisfied.

 

Second, the matters for which Petitioner seeks to invoke CCP § 437c(e) 13 and 14 are facts which are conclusively presumed and which Petitioner is precluded from controverting at trial.  The evidence establishes that Dr. Ted Carroll acted as agent for Angelina Torres and that such agency was confirmed by escrow instructions executed by Angelina Torres that substantially conformed to representations made by Dr. Ted Carroll. There is a long line of cases holding that one who acts through an agent is held to have conclusive knowledge of information in the agent’s possession because it is unfair to use an agent and then claim no knowledge of the information provided to the agent. (See Wittenbrock v. Parker (1894) 102 Cal. 93, 101-102 [“the fact constituting knowledge, or want of it, on the part of the agent are proper subjects of proof, and are to be ascertained by testimony as in other cases, but when ascertained, the constructive notice thereof to the principal is conclusive and cannot be rebutted by showing that the agent did not in fact impart the information so required.” [citing Watson v. Sutro (1890) 86 Cal. 500, 517].)  “As stated above, notice to an agent in course of a transaction is constructive notice to the principal, and it will not avail the latter to show that the agent failed to communicate to him what he was told. [Citation Omitted.] This constructive notice, when it exists, is irrefutable.  It is not merely prima facie evidence, for then it could be rebutted.…” (Powell v. Goldsmith (1984) 152 Cal.App.3d 746, 751 [quoting Watson v. Sutro (1890) 86 Cal. 500, 523].)

 

The reasoning behind the rule was explained in Watson v. Sutro (1890) 86 Cal. 500, 516 as follows: “Knowledge by notice to attorney or counsel or agent acquired during negotiations for a purchase is constructive notice to the principal.  If it were otherwise, it would cause great inconvenience, and notice could be avoided in every case by employing agents.” (Id.)   “Or as the reason for the rule was stated by Lord Brougham: `Policy and safety of the public forbid a man to deny knowledge while he is so dealing as to keep himself ignorant, and yet all the while let his agent know, and himself profit by that knowledge.’”  Watson v. Sutro (1890) 86 Cal. 500, 516 [quoting Kennedy v. Green, 3 Myline & K 699-719].)

 

Since Respondents have established a prima facie case that they are entitled to judgment as a matter of law with respect to the causes of action for Intentional Concealment, Conspiracy, Negligence, Money Had and Received, and Unfair Competition; since Petitioner’s evidentiary objections have been OVERRULED, since Petitioner has failed to provide a separate statement and has failed to provide evidence creating a trial issue of material fact, the motion for summary adjudication is GRANTED.

 

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 Joseph C. Scott, Department 25.

 

 

 

 

9:00

 

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CIV530948

DENISE GIL VS. SAN MATEO COUNTY PUBLIC ADMINISTRATOR, ET AL.

 

 

DENISE GIL

ROBERT I. KLIGMAN

SAN MATEO COUNTY PUBLIC ADMINISTRATOR

JOHN C. BEIERS

 

 

 

 

Statement of Decision

TENTATIVE RULING:

 

This matter is continued to September 19, 2016 at 9:00 A.M.

 

 

 

 

 


POSTED:  3:00 PM

 

© 2016 Superior Court of San Mateo County