September 25, 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

 

Thursday, September 21, 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

16-CIV-00552     GABRIELA CANCHOLA, et al. vs. MATT FERGUSON, et al.

 

 

GABRIELA CANCHOLA                      ARASH KHORSANDI

MATT FERGUSON                          LANCE BURROW

 

 

DEFENDANT’S MOTION TO COMPEL ATTENDANCE OF PLAINTIFF’S GABRIELA CANCHOLA AND MARTHA TORRES AT DEPOSITION

TENTATIVE RULING:

 

Defendant’s motion to compel Plaintiffs to attend deposition is GRANTED.  Plaintiffs shall appear for their deposition at the office of defense counsel in San Jose on or before October 6, 2017. 

 

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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16-CLJ-01155     CACH, LLC vs. DOMINIC M. CALABRESE, et al.

 

 

CACH, LLC                              KAREN ETSELL LUSIS

DOMINIC M. CALABRESE                   PRO/PER

 

 

PLAINTIFF’S MOTION FOR JUDGMENT OF THE PLEADINGS

TENTATIVE RULING:

 

Plaintiff’s unopposed motion for judgment on the pleadings is GRANTED.

 

Judgment shall be entered in favor of plaintiff in the amount of $9,391.44.  Costs and fees shall be awarded pursuant to applicable post judgment procedures cost memorandum.  CRC 3.1700.

 

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

 



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17-CIV-01849     EIREEN MALLARI, et al vs. CARRINGTON MORTGAGE

                     SERVICES, LLC, et al.

 

 

EIREEN MALLARI                         SARAH SHAPERO

CARRINGTON FORECLOSURE SERVICES, LLC    T. ROBERT FINLAY

RALPH PARTNERS                         SETH COX

 

RALPH PARTNERS ii, LLC’S HEARING ON DEMURRER

TENTATIVE RULING:

 

Defendant RALPH PARTNERS II, LLC’s Demurrer to Plaintiffs’ Complaint is SUSTAINED WITH LEAVE TO AMEND as to the Fourth cause of action for quiet title, on the following grounds:

 

(1) Plaintiffs are granted leave to amend Paragraph 7 to assert that the subject property is their primary residence, rather than their principal place of business; and

 

(2) Plaintiffs are granted leave to amend to allege why an exception to the tender rule applies.  “A mortgagor of real property cannot, without paying his debt, quiet his title against the mortgagee.”  Miller v. Provost (1994) 26 Cal.App.4th 1703, 1707. 

 

Defendant’s remaining grounds for demurrer to this cause of action are OVERRULED.

 

Defendant’s Request for Judicial Notice is GRANTED as to Exhibits 1, 2, and 3. 

 

Defendant RALPH PARTNERS II, LLC’s demurrer based on the argument that a quiet title claim fails where the trustee’s sale has already occurred is overruled.  Defendant relies on Distor v. U.S. Bank, N.A. (N.D. Cal. Oct. 22, 2009) 2009 WL 3429700 for this proposition; however, the Distor plaintiff’s complaint was found “deficient in that it is not supported by any additional facts alleging that defendants have no right to the property or any interest therein.”  Id. at *6.  Therefore, the Court found that the plaintiff failed to establish any of the claims adverse to her title.  Ibid.  Here, Plaintiffs have alleged in detail that they were in the process of a loan modification when Defendant CARRINGTON MORTGAGE SERVICES, LLC proceeded with foreclosing on their property, in violation of the HBOR.  Plaintiffs assert that they have an equitable interest in the property despite title having already been recorded in Defendant RALPH PARTNERS’ name by way of the Trustee’s Deed Upon Sale. 

 

The demurrer based on Defendant’s status as a bona fide purchaser is also be overruled.  The Court in Orcilla v. Big Sur, Inc. (2016) 244 Cal.App.4th 982, in holding that the trial court had erred in sustaining a demurrer to a cause of action to set aside a trustee’s sale, held that the bona fide status of the purchaser did not bar plaintiffs’ cause of action where the validity of the trustee’s sale was being called into question.  Here, Plaintiffs assert that the trustee’s sale of their property should never have occurred; thus Defendant’s argument that it was a bona fide purchaser should not operate to bar Plaintiffs’ quiet title claim.

 

Defendant argues that Plaintiffs have not alleged a violation of the HBOR because they admit that their servicer asked for more documents, and there is no allegation that Plaintiffs complied with this request prior to the date of the trustee’s sale.  This argument is based on an erroneous and incomplete reading of the verified Complaint.  Plaintiffs clearly allege that they submitted (and resubmitted) a “complete” loan modification application, and that, much to their frustration, CARRINGTON would keep coming back to them asking them to send in copies of the same documents that had already been submitted.  CARRINGTON’s final request was that Plaintiffs resubmit documents by April 7, 2017.  Despite this, CARRINGTON went ahead with a foreclosure sale on March 17, 2017.  A violation of the HBOR has been sufficiently stated.

 

Finally, Defendant argues that Plaintiffs have not alleged tender in connection with their quiet title claim.  In order to assert a cause of action for quiet title, Plaintiff must allege tender.  “A mortgagor of real property cannot, without paying his debt, quiet his title against the mortgagee.”  Miller v. Provost (1994) 26 Cal.App.4th 1703, 1707.  The offer of tender must be of the amount borrowed.  Arnolds Management Corp. v. Eischen (1984) 158 Cal.App.3d 575, 578.  The plaintiff must (1) demonstrate a willingness to pay and (2) show the ability to pay.  In re Worcester (9th Cir. 1987) 811 F.2d 1224, 1231.  While there are exceptions to the tender rule, Plaintiffs do not allege any of these exceptions in their verified Complaint.  (See Complaint ¶¶ 30-36.) The demurrer on this ground is, therefore, sustained with leave to amend. 

 

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, DEMURRING PARTY is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order is to be submitted directly to Judge Richard H. DuBois, Department 16.

 

 



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17-UDU-00664     ALLAN & HENRY, INC., A CALIFORNIA CORPORATION vs.

                     MERVIN A. MORAN, et al.

 

 

ALLAN & HENRY, INC.                    CLIFFORD R. HORNER

MERVIN A. MORAN                        RAJA DEVINENI

 

 

PLAINTIFF’S MOTION TO COMPEL DISCOVERY; DEEM FACTS ADMITTED; WAIVE OBJECTIONS TO RESPONSES; AND REQUEST FOR SANCTIONS

TENTATIVE RULING:

 

Plaintiff’s motion is denied for lack of proof that the underlying discovery was served in compliance with CCP §1015.  The statute provides that, in all cases where a party has an attorney in the action, the service of papers, when required, must be upon the attorney instead of the party

 

The Proof of Service indicates the discovery was served on defendant on August 29, 2017.  However, defendant’s answer was filed through counsel on August 1, 2017.  There is no indication that counsel was served with the discovery documents.  CCP §1015 provides that in all cases where a party has an attorney in the action, the service of papers, when required, must be upon the attorney instead of the party.

 

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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Line: 5

CIV538047     JINAN FENG VS. JOANNA CHANG

 

 

JINAN FENG                             Pro/per

JOANNA CHANG                           ARTHUR LIU

 

 

PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES BY DEFENDANT CHANG TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS SET ONE AND MONETARY SANCTION REQUEST AGAINST DEFENDANT AND/OR ITS ATTORNEY OF RECORD

TENTATIVE RULING:

 

Plaintiff Jinan Feng’s Motion to Compel Further Responses to his Requests for Production, Set One, served on Defendant Joanna Chang, and to compel production of documents, is DENIED. 

 

The motion must be served within 45 days of service of the responses.  Code Civ. Proc. Sect. 2031.310(c); Sperber v. Robinson (1994) 26 Cal.App.4th 736, 745.  The 45-day time limit is mandatory and jurisdictional.  Sexton v. Sup. Ct. (1997) 58 Cal.App.4th 1403, 1410.  Missing the deadline waives the right to compel a further response, or to compel inspection/production of any documents that might have been identified in such a further response.  Code Civ. Proc. Sect. 2031.310(c); 2031.320(a); New Albertsons, Inc. v. Sup. Ct. (2008) 168 Cal.App.4th 1403, 1427-28.  Plaintiff also failed to provide the required meet and confer declaration.  Code Civ. Proc. Sect. 2031.310(b)(2). 

 

The parties’ respective requests for sanctions are DENIED. 

 

CCP § 2031.310(c) states that the 45 day time limit for bringing a motion to compel further responses runs from the service of a verified response or supplemental verified response.

Here, the responses were served 6-27-17, and this motion was filed 8-29-17, which exceeds the 45 days.  There is no indication the parties agreed in writing to extend the 45-day rule, or that the Court did, even though the Court re-opened discovery.  The Court’s 8-22-17 Order re-opening discovery says nothing about waiving the 45-day rule.   Neither party’s papers here indicate whether the responses were verified.  Plaintiff, as the moving party, bears the burden of proving his entitlement to an Order compelling further responses, and he has not done so by not indicating whether the responses were verified responses). 

Additionally, there is no meet and confer declaration.  2031.310(b)(2) states: “The motion shall be accompanied by a meet and confer declaration under Sect. 2016.040.”  This is additional, independent grounds to deny the motion.

 

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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Line: 6

CLJ211674     GUOMIN LI, ET AL. VS. VIDA CAPITAL GROUP, LLC

 

 

GUOMIN LI                              JUDY CHI-DEE TSAI

VIDA CAPITAL GROUP, LLC                BRUCE E. STANTON

 

 

DEFENDANT’S MOTION TO DETERMINE PREVAILING PARTY AND TO FIX AMOUNT OF ATTORNEY’S FEES AWARDABLE TO PREVAILING PARTY

TENTATIVE RULING:

 

Defendant’s motion for attorney’s fees is GRANTED in the amount of $950.  To the extent defendant seeks to recover $525 in fees paid to prior counsel, the motion is denied.  Defendant has not provided sufficient evidence for the court to determine whether those fees were reasonably incurred.  Furthermore, the court notes that the failure to move this case forward is attributable to both parties and there appears to be some overlap between the services performed by defendant’s first and second counsel. 

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.

 



 

 

 

In the Superior Court of the State of California

In and for the County of San Mateo

 

WRITS AND RECEIVERS CALENDAR

Judge: Honorable GEORGE A. MIRAM

Department 28

 

400 County Center, Redwood City

Courtroom 2F

 

Thursday, September 21, 2017

 

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

 you must call (650) 261-5128 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

2:00

Line: 1 & 2

17-CIV-00316     SAN FRANCISCO BAY MARINAS FOR ALL, INC., et al. vs.

                     CITY OF REDWOOD CITY, et al.

 

MADDEN, ALISON                         gary redenbacher

CITY OF REDWOOD CITY                   kevin d. siegel    

 

 

Demurrer by City of redwood city 

TENTATIVE RULING:

 

Appear.

 

 

 

Demurrer by citizens for the public trust  

TENTATIVE RULING:

 

APPEAR.

 



2:00

Line: 3

17-CIV-02949     KONSTANTIN GOURJI vs. AMIN VOHRA, et al

 

 

KONSTANTIN GOURJI                      JAMES C. STEVENS

AMERICAN SPECIALTY MANAGEMENT, LLC

 

 

Motion for preliminary injunction

TENTATIVE RULING:

 

The motion by Plaintiff Konstantin Gourji, individually and dba Gurnick Academy of Medical Arts, for a preliminary injunction enjoining Defendants from soliciting current employees of the Gurnick Academy of Medical Arts is DENIED. 

 

Plaintiff does not have any ownership interest in its at-will employees and the identity of employees is not a trade secret.  (See Metro Traffic Control, Inc. v. Shadow Traffic Network (1994) 22 Cal.App.4th 853, 862.)   Plaintiff is free to enter into exclusive long term employment contracts with employees, if it is concerned that they may leave. (See Metro Traffic Control, Inc. v. Shadow Traffic Network (1994) 22 Cal.App.4th 853, 862)

 

The objections to evidence offered in the reply are SUSTAINED.  Supporting evidence must be submitted in the original papers.  The objections generally to Gurnick’s evidence are overruled.

 

Plaintiffs have failed to demonstrate a likelihood of success on the merits and has failed to demonstrate that plaintiff’s harm relative to defendant’s harm, prevails. See Law School Admission Counsel, Inc. v California (2014) (2014) 222 Cal App 4th 1265, 1280.

 



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CIV528792     mauro alvayero cruz, et al. vs. sierra corporate

                 management, inc., et al

 

 

mauro alvayero cruz                    frank m. pitre

sierra corporate MANAGEMENT, LLC       vincent s. loh

 

 

case management conference

TENTATIVE RULING: 

 

APPEAR.

 


 

 

 


POSTED:  3:00 PM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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