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In the Superior Court of the State of California
In and for the County of San Mateo
Law and Motion Calendar
Judge: Honorable LISA A. NOVAK
400 County Center, Redwood City
MARCH 10, 2014
IF YOU INTEND TO APPEAR ON ANY CASE ON THIS CALENDAR YOU MUST DO THE FOLLOWING:
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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.
Case Title / Nature of Case
CIV 509400 PRABHAKAR GOEL VS. BHUPENDRA B. PATEL
PRABHAKAR GOEL ROBERT J. YORIO
BHUPENDRA B. PATEL DAVID E. BUNIM
MOTION FOR ORDER COMPELLING FURTHER RESPONSES TO SPECIAL INTERROGATORIES BY BHUPENDRA B. PATEL
· By stipulation and order this matter is continued to March 24, 2014.
CIV 511486 WAYNE T. KENNEDY, ET AL. VS. LEONARD BIALER, ET AL.
WAYNE T. KENNEDY HELENE A. SIMVOULAKIS
LEONARD BIALER ARON K. LIANG
DEMURRER TO 2nd Amended COMPLAINT of KENNEDY BY SHERRY S. BIALER
· See tentative ruling below.
DEMURRER TO 2nd Amended COMPLAINT of KENNEDY BY LEONARD BIALER
· As these demurrers are substantially similar, with a recognition by the Court that the issues raised by Sherry Bialer on some of the causes of action differ from those of Leonard Bialer, the tentative when feasible will speak to the motions collectively.
· The Request by Defendant[s] for judicial notice of the business license is denied, as it seems that the parties are asking the court to accept its contents for the truth of the matter asserted, which is not a proper function of judicial notice.
· Defendant[s] request to take judicial notice of the FAC and the 9/23/13 order sustaining a demurrer thereto is granted.
· Plaintiffs’ request to take judicial notice of past and present versions of a page from the Bialer & Associates and Security Property Management websites is granted.
· Defendant Leonard Bialer’s demurrer to the 1st, 2nd, 3rd and 7th causes of action is OVERRULED.
· The SAC further alleges L. Bialer and S. Bialer concealed the following additional facts: 1) checks were written to persons other than those identified in the cash flow statements 2) Defendants were collecting rent on apartments they intentionally removed from the rent rolls 3) Defendants were renting apartments at below market rates and 4) Defendants double billed Plaintiffs for Home Depot charges. Id. at ¶¶56-66.
· The Fifth c/a states that, beginning in 2007, L. Bialer and S. Bialer made a number of misrepresentations to Plaintiffs through communications including reports prepared by Security Property Management. These include: 1) all checks appearing on cash flow statements contained an accurate accounting of expenses at each of the rental properties and every check used to pay these expenses 2) the cash flow statements contained an accurate accounting of all persons to whom checks were written 3) Defendants were collecting rent only on those apartments that appeared in the rent rolls 4) all apartments Defendants rented were being rented at market rate and 5) all Home Depot charges and expenses were billed for charges and expenses actually incurred in the management of the properties. Id. at ¶¶ 72-82
· Regarding the demurrer by Sherry Bialer, as the 1st, 2nd and 3rd causes of action, it is overruled as Plaintiffs have alleged facts to establish the existence of a contract between the trust and Sherry Bialer.
· ¶19 of the SAC alleges that the trust entered into a written Property Management Agreement with Security Property Management whereby L. Bialer and S. Bialer, the owners, principals or responsible parties of Security Property Management, agreed to be Plaintiffs’ agents to manage and operate their rental properties. While Defendant argues the contract was between Plaintiffs and Leonard Bialer, this is contradicted by the agreement itself which states it is between Plaintiffs and Security Property Management. See SAC at Ex. B. For purposes of ruling on the demurrer, these facts must be accepted as true. While Defendant contends the allegation regarding her ownership is a legal conclusion, it is supported by ¶8 which alleges that she held herself out as a “Realtor-Associate/Owner” of the business on the company website. A copy of the web page is attached as Ex. A to the SAC.
· The 3rd cause of action for breach of fiduciary duty alleges incorporates all prior allegations and states that as owners, principals or responsible parties of Security Property Management, L. Bialer and S. Bialer were Plaintiffs’ agents with the exclusive right to manage Plaintiffs’ properties. It further alleges as a result of the agency relationship, L. Bialer and S. Bialer owed Plaintiffs a fiduciary duty. According to Michaelson, an agent is a fiduciary.
· An agent is defined as one who represents another in dealings with third persons. Civil Code §2295. Whether a person performing such work for another is an agent depends primarily on whether the one for whom the work is done has the right to control the agent’s activities. The power to terminate the agent’s services involves the right of control. Id. In this case, ¶1 of the agreement gave Plaintiffs the right to terminate it after the first year on 30 days written notice. It also gave Plaintiffs the right of approval over any proposed expenditure exceeding $5,000. ¶3 (b). These terms suggest that Plaintiffs had the right of control.
CIV 512676 COUNTY OF SAN MATEO ISSUANCE OF AN INSPECTION
IN THE MATTER OF THE COUNTY OF SAN MATEO JOHN C. BEIERS
615-11TH AVENUE MENLO PARK, CA
MOTION TO COMPEL A FINDING OF FACT FOR EXTENSION OF TIME BY HARVEY BLIGHT
· Defendant Harvey Blight’s Motion “to compel a finding of fact for extension of time to complete deposition/interrogatory; and motion to compel answers after 2/7/14: petition by ex parte; transcript record required; and petition to compel 20 question interrogatory by each judge as well as P.J. Foiles because the minute records are insufficient; to support dismissal” is DENIED without prejudice. There is no proof of service of the motion in compliance with CCP §1005. The proof of service attached to the motion is for a different motion regarding a deposition subpoena. Without notice to the plaintiff, the court cannot consider the motion.
CIV 514284 SERGIO GAMBOA VS. HSBC BANK USA, N.A., ET AL.
SERGIO GAMBOA HAKOP KESHISHYAN
HSBC BANK USA, N.A. JACOB M. CLARK
MOTION FOR SUMMARY JUDGMENT AS TO 1st Amended COMPLAINT of GAMBOA FILED BY JP MORGAN CHASE BANK, N.A., HSBC BANK USA, N.A., CALIFORNIA RECONVEYANCE COMPANY
· The Motion for Summary Judgment by defendants HSBC Bank USA, N. A. as trustee for Luminent 2007-1, J.P. Morgan Chase Bank, N.A. And California Reconveyance Company as to the first cause of action of the first amended complaint is GRANTED.
· Defendants have met their initial burden under CCP §437c(p)(2) of demonstrating that the cause of action has no merit. Defendants have established that they are in compliance with Civil Code §2923.5. They rely on case law which holds that multiple contacts, by either phone or written correspondence, regarding alternative options to foreclosure before the recording of the notice of default satisfies the obligations under §2923.5. See Rossberg v. Bank of America (2013) 219 Cal App 4th 1481. They have established through the declaration of Brandie Watkins, and the documents attached to her declaration, that the plaintiff discussed his financial situation and alternatives to foreclosure including a loan modification with defendant J.P. Morgan Chase Bank. See material facts 11, 12, 14-18, 19. They have also demonstrated that the plaintiff applied for a loan modification prior to the recording of the second Notice of Default in April 2010. The loan modification application that plaintiff received was signed and dated November 15, 2009. Material fact 20. The Notice of Default is sufficient pursuant to Mabry v. Superior Court2010) 185 Cal App 4th 208 as it not only tracks the language of the statute, but was made under penalty of perjury. Material fact 23.
· The burden then shifts to plaintiff under CCP §437c(p)(2) to show that a triable issue of one or more material facts exists as to that cause of action. Plaintiff has not met that burden, indeed, plaintiff has not filed a response to the summary judgment motion at all.
· Moving party shall prepare an order per CRC 3.1312 and submit it directly to Department 13, Judge Novak, for signature.
CIV 519765 LORETTA LITTLE VS. AMRIT SAXENA
LORETTA LITTLE JUAN M. SIMON
AMRIT SAXENA WAYNE M. COLLINS
MOTION TO COMPEL DISCOVERY BY AMRIT SAXENA
· By stipulation of the parties this matter is continued until April 7, 2014.
CIV 520683 SUE FINNEGAN-DAHLZ VS. METLIFE HOME LOANS, LLC, ET AL.
SUE FINNEGAN-DAHLZ SARAH ADELAARS
METLIFE BANK, N.A. P. BRUCE CONVERSE
MOTION FOR SUMMARY JUDGMENT AS TO COMPLAINT of FINNEGAN-DAHLZ FILED BY RAYMOND GRINSELL TR
· The motion for summary judgment is granted.
· Defendant’s objection to paragraph 16 of the Declaration of Justin Dahlz is sustained for lack of foundation for opinion. All other objections to the declaration are overruled.
· The Court requests that in future written objections each objection is assigned a number.
· Plaintiff’s Request for Judicial Notice is granted as to all matters.
· “[A] bona fide purchaser for value who acquires his interest in real property without notice of another's asserted rights in the property takes the property free of such unknown rights.” (Melendrez v. D & I Investment, Inc. (2005) 127 Cal.App.4th 1238, 1251.)
· It is undisputed that Defendant Grinsell purchased the property. (UMF 9; Declaration of Grinsell ¶ 12.) Plaintiff’s disputes whether the trustee’s sale complied with Civil Code section 2924 and 2924c, but not the fact of the purchase. (See Plaintiff’s Opposing Separate Statement of Undisputed Facts at 3:23 – 4:20.) It is also undisputed that Defendant Grinsell paid $443,106.00 for the property. (Declaration of Grinsell ¶12.) Thus, it is undisputed that Defendant acquired the property for value.
· It is undisputed that Defendant Grinsell had no knowledge of the rights being asserted by Plaintiff against her lender. (UMF 12; Declaration of Grinsell ¶¶ 3-6, 16-17.) Plaintiff argues that Defendant Grinsell and trustee Quality Loan Services “had many prior dealings together.” Plaintiff cites to 48 Trustee’s Deeds. The evidence of those transactions do not controvert that Defendant Grinsell had no knowledge of Plaintiff’s claims against her bank. Fact 12 is undisputed.
· Plaintiff argues that bona fide purchaser status is a triable issue because (1) Defendant’s purchase price was unreasonably low and (2) Defendant was a “professional bidder.” (Opposing P&A at 10:25 – 11:7) Plaintiff’s argument fails for two reasons. First, there is no admissible evidence of the property’s actual value. The only evidence is paragraph 16 of the Declaration of Justin Dahlz, which is inadmissible opinion for lack of foundation. No evidence is on record to imply that the purchase price was unreasonably low.
· Second, Plaintiff contends that 48 Trustee’s Deeds show that Defendant is a “professional bidder.” In 47 of those deeds, however, seven different entities are identified as “grantee,” including two corporations, a limited liability company, two 401k profit sharing plans, and a defined benefit plan. (One deed appears entirely unrelated to Defendant. See Exhibit TT.) Further, Plaintiff does not explain what a “professional bidder” is, or how that status would defeat bona fide purchaser status. Plaintiff cites Estate of Yates (1994) 25 Cal.App.4th 511, 523. The property in Yates was valued at $120,000, and the purchaser bought it for $12,000. In addition, he purchased it from the seller, with no competing bidders. In contrast, Plaintiff offers no evidence that Defendant’s purchase price was unreasonably low, and Defendant Grinsell competed with six other bidders (Undisputed Material Fact 13; Declaration of Grinsell ¶ 11; Declaration of Keith, Exhibit 9, Bates pages 000713-714 (auction log).) Plaintiff fails to raise a triable issue of material fact about whether Defendant Grinsell was a bona fide purchaser for value.
· It is undisputed that Defendant holds legal title. (Undisputed Material Facts 9 through 13.)
· Tender of the debt is required to set aside a foreclosure sale. (Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 112, 117.) It is undisputed that Plaintiff does not allege that she tendered the entire outstanding debt. (See Complaint ¶¶ 1-72.) Plaintiff’s argument that she is required to tender only the amount necessary for reinstatement is unsupported by law.
· Plaintiff’s argument for denial based on Defendant’s failure to participate in discovery is unpersuasive. Plaintiff submits no affidavit setting forth that facts to be obtained are essential to opposing the motion, there is reason to believe such facts may exist, and the reasons why additional time is needed to obtain those facts. (Ace American Ins. Co. v. Walker (2004) 121 Cal.App.4th 1017, 1023; Code of Civ. Proc. § 437c, subd. (h) [affidavits required].) The Court will not consider late evidence. (Ambrose v. Michelin North America, Inc. (2005) 234 Cal.App.4gh 1350, 1353 [supporting affidavit must be “submitted on or before the due date for the opposition.”].)
· If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Defendant shall 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 written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.
CIV 521181 SEQUOIA CLUB OF REDWOOD CITY, INC. VS. MARIO RADDAVER
SEQUOIA CLUB OF REDWOOD CITY, INC. CHARLES DREXLER
MOTION TO VACATE DEFAULT BY SEQUOIA CLUB OF REDWOOD CITY, INC.
· The Court notes that according to defense counsel, Stephen Cusick, a global settlement agreement is being circulated among those involved in this matter. He is optimistic about this global settlement.
· Therefore, in order to enable the circulation of the settlement agreement to be completed the instant Motion to Vacate Default is continued to April 8, 2014; also, the related Motion to Vacate Default currently set for March 12, 2014 is also continued to the same date of April 8, 2014. Similarly, the related Motion for Summary Judgment currently set for April 7, 2014 is continued to May 13, 2014. All opposition and reply papers are to be determined based upon the new hearing dates.
CIV 522390 ANDY SABERI, ET AL. VS. SAEED GHAFOORI, ET AL.
ANDY SABERI THOMAS I. SABERI
SAEED GHAFOORI MATTHEW P. GUICHARD
MOTION TO QUASH AND/OR MODIFY DEPOSITION SUBPOENA FOR BUSINESS RECORDS BY THOMAS SABERI, ANDY SABERI
· The Motion to Quash/Modify the Deposition Subpoena for Business Records is GRANTED and the subject Subpoenas are modified as follows:
- The period for the production is changed to May 18, 2011 to the present; and,
- The names of TOM SABERI and ANDY SABERI are deleted;
- In all other respects the Subpoenas remain the same.
· The request for a Protective Order is GRANTED as both sides appear to want such an Order but have not formalized one. The parties are ordered to meet and confer regarding a Protective Order before March 21, 2014 and to submit an agreed upon Protective Order to the Court on or before April 4, 2014. The parties are directed to devise a method of handling potential third party privacy rights.
CIV 525428 KHUONG CHI-LA, ET AL. VS. BETTER HOMES AND GARDEN, ET AL.
KHUONG CHI-LA KENYON MARK LEE
BETTER HOMES AND GARDENS R. ERNEST MONTANARI
MOTION FOR ORDER DETERMINING GOOD FAITH SETTLEMENT BY KHUONG CHI-LA, TIEN T. TRINH-LA
· The Motion for Determination of Good Faith Settlement by Plaintiffs and Defendant Haleh Motaghi is DENIED without prejudice. The moving parties have failed to provide a proof of service showing notice has been provided in compliance with CCP §1005(b) to all remaining defendants.
· Moving attorney is directed to prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and to provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court.
CIV 525892 BCCI CONSTRUCTION COMPANY VS. RILCO-EDWARD, LLC
BCCI CONSTRUCTION COMPANY THOMAS GF DEL BECCARO
RILCO-EDWARDS, LLC PILLSBURY WINTHROP SHAW PITTMA
MOTION TO EXPUNGE LIS PENDENS BY RILCO-EDWARDS, LLC
· Plaintiff's objections to ¶¶2, 3 and 4 of the Clark Declaration are sustained, while plaintiff's objections to ¶¶5, 6, 7 and 8 are overruled. The declaration’s reference/incorporation to the Letter of Intent urges the court to consider pure hearsay and Defense Counsel should refrain at any hearing on this motion of arguing any of its terms. Had the signatory/author of that letter submitted a declaration, as opposed to Counsel, the Court would have overruled a hearsay objection.
· Plaintiff’s request for a continuance to conduct discovery is denied.
· The motion to expunge the lis pendens is granted. The Purchase Agreement falls within the Statute of Frauds and defendant did not sign the contract. CC §1624(a)(3). Plaintiff has not shown that Defendant is estopped from raising the defense of the statute of frauds. Although Plaintiff has shown that it performed certain investigation and work, this work was performed before either party signed the Purchase Agreement and therefore was not partial performance of an existing contract. As such, Plaintiff has failed to demonstrate by a preponderance of the evidence that it is likely to succeed on its breach of contract or specific performance claims. The Court has considered the FAC which was filed February 25, 2014 but the additional cause of action for Unjust Enrichment does not alter the analysis. Plaintiff’s success or failure on that claim does not involve an interest in real property and as such it has little bearing on the issue of expunging the lis pendens.
· Defendant’s request for attorney’s fees is GRANTED but not in the amount sought, as the court finds the dollar amount and hours claimed to be excessive. Also, the Court does not consider Counsel’s declaration “on information and belief” as to the amount of time his associate spent on the motion. The Court will award fees in the amount of $3,320 [4 hours at $830/hour].
· Moving attorney is directed to prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and to provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court. The order is to be submitted directly to Judge Lisa A. Novak, Department 13.