March 29, 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 john l. grandsaert

Department 11

 

400 County Center, Redwood City

Courtroom 2D

 

Tuesday, March 28, 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-00108     PATRICIA JUNG vs. OCWEN LOAN SERVICING, LLC, et al.

 

 

PATRICIA JUNG                          EUNJI CHO

OCWEN LOAN SERVICING, LLC               PETER L. ISOLA

 

 

Demurrer to PLAINTIFF'S FIRST AMENDED COMPLAINT

TENTATIVE RULING:

 

Defendants OCWEN LOAN SERVICING, LLC and CHRISTIANA TRUST’s Demurrer to First Amended Complaint is SUSTAINED as follows:

 

  • SUSTAINED WITH LEAVE TO AMEND as to the Second Cause of Action for violation of Civil Code §1788.  Plaintiff alleges that Defendants breached the Promissory Note by disregarding limitations imposed on the principal balance.  However, nowhere in the First Amended Complaint does Plaintiff actually allege that the principal balance, as set forth in the March 9, 2016 and March 24, 2016 payoff statements or included in the amount listed as the unpaid debt in the Trustee’s Deed Upon Sale, exceeds the amount allowed by the Note.  Plaintiff’s allegations that the payoff statements were false, deceptive and misleading representations are therefore insufficient.

 

  • SUSTAINED WITH LEAVE TO AMEND as to the Third Cause of Action for conversion.  As with the claim above, Plaintiff has failed to adequately allege that Defendants breached the principal cap limitation in the Note, and thus she has not shown her ownership or right to possession of the alleged surplus funds from the foreclosure sale or that Defendants committed conversion by a wrongful act or disposition of property rights.  (Finton Construction, Inc. v. Bidna & Keys, APLC (2015) 238 Cal.App.4th 200, 2013.)  Moreover, Plaintiff fails to state a specific identifiable sum, which is necessary for a claim of conversion.  (Haigler v. Donnelly (1941) 18 Cal.2d 674, 681.)

 

  • SUSTAINED WITH LEAVE TO AMEND as to the First Cause of Action for declaratory relief, which essentially duplicates the other two causes of action.  Plaintiff fails to allege the critical fact that the principal balance under her loan exceeded the cap, thereby creating an actual controversy between the parties.  (Code Civ. Proc. §1060.) 

 

Defendants’ Request for Judicial Notice is GRANTED as to Exhibits A-E. 

 

Plaintiff shall file and serve the Second Amended Complaint on or before April 7, 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.

 


9:00

LineS: 2 & 3

16-CIV-02449   JOSEPHINE REALYVASQUEZ vs. GHC OF DALY CITY 239, LLC

 

 

JOSEPHINE REALYVASQUEZ                 NIALL P. MCCARTHY

GHC OF DALY CITY 239, LLC

 

 

2. DEMURRER TO COMPLAINT

TENTATIVE RULING:

 

Defendant GHC of Daly City 239, LLC dba St. Francis Convalescent Pavilion’s Demurrer to the Complaint is OVERRULED.

 

For the purpose of testing the sufficiency of each cause of action, a demurrer admits the truth of all material facts properly pleaded, i.e., all ultimate facts alleged, but does not admit contentions, deductions or conclusions. (Serrano v. Priest (1971) 5 Cal.3d 584, 591.)  A demurrer is not the appropriate procedure for determining the truth of disputed facts or what inferences should be drawn where competing inferences are possible. (CrossTalk Productions, Inc. v. Jacobson (1998) 65 Cal.App.4th 631, 635.)  The Court must accept as true the factual allegations of the Complaint and must give them a liberal interpretation.  (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468.)

 

Giving the Complaint a liberal interpretation, the Court finds that the Plaintiff has sufficiently pled facts to support her cause of action for elder abuse under the Elder Abuse and Dependent Adult Civil Protection Act.

 

Neglect of an elder is broadly defined to include:  “The negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.” (Welf. & Inst. §15610.57(a)(1).)  Neglect includes, but is not limited to:  “Failure to provide medical care for physical and mental health needs” and “Failure to protect from health and safety hazards.”  (Id. at §15610.57(b)(2), (3).)

 

The Complaint alleges specific facts to show neglect of the Plaintiff or denial of medical care by way of neglect.  For example, Defendant’s records show that a blister was found on Plaintiff’s leg on June 6, 2016 and it was expected that it would take a month to resolve.  (Comp. ¶39.)  However, there was no note of the pressure ulcer that was also under the leg brace.  (Id.)  Yet, on June 7, 2016, Plaintiff’s granddaughter visited Plaintiff and found her with the leg brace removed and her leg bandaged due to the pressure ulcer.  (Comp. ¶40.)  The granddaughter asked when the brace had been removed before and Plaintiff said that it had never been removed.  (Id.)  Prior to June 7, 2016, Defendant never told Plaintiff’s family of the serious pressure ulcer.  (Comp. ¶43.)

 

The Complaint goes on to allege that Defendant had its staff prepare notes about Plaintiff’s physical therapy, which happened five days earlier, and occupational therapy, which happened two days earlier.  (Comp. ¶46.)  Plaintiff alleges that creating this record several days later is part of the Defendant’s cover up.  (Id.)

 

Plaintiff also included in the Complaint facts to support the allegation that Defendant allegedly attempted to coerce Plaintiff into waiving her rights to sue by presenting her with a form to sign after the family discovered the pressure sore and Plaintiff had made a police report.  (Comp. ¶50.)

 

The Complaint also stated facts showing inconsistencies in Defendant’s notes, such as the statement that the brace was removed on June 3, 2016 and no skin issues were noted (Comp. ¶52), but the contradiction that Plaintiff herself said that the brace had never been removed before June 7, 2016.  (Comp. ¶52.)  The statement that the brace was removed on June 3, 2016 also contradicts Defendant’s later statement that Kaiser instructed that the brace not be removed.  (Id.)

 

The Complaint alleged that the Director of Nursing met with the Plaintiff’s family and made various representations about when the ulcer was discovered, what the doctor’s orders were and why the brace had never been removed earlier.  (Comp. ¶54.)  Plaintiff alleges that her family ordered copies of Plaintiff’s medical records from Kaiser to check on the Defendant’s allegation that Kaiser ordered the brace not be removed and, yet, that alleged order by Kaiser was nowhere to be found.  (Id.) 

 

These facts are sufficient to state a cause of action for elder abuse under the Elder Abuse and Dependent Adult Civil Protection Act.

 

 

3. MOTION TO STRIKE PORTIONS OF COMPLAINT 

TENTATIVE RULING:

 

Defendant GHC of Daly City 239, LLC dba St. Francis Convalescent Pavilion’s Motion to Strike Portions of Plaintiff’s Complaint is GRANTED as to Paras. 9-11 and 26-28 ONLY.  The reference to the UCSF Report and Department of Public Health investigations of the Defendant are irrelevant and unnecessary to the Complaint.  (Code Civ. Proc. §§435, 436.)

 

All other allegations and claims for damages in the Complaint are sufficiently pled and found to be sufficiently relevant to the Plaintiff’s causes of action at this stage in the pleadings.

 

     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

LineS: 4 & 5

16-CIV-03051     STANLEY LAM, et al. vs. COOKING PAPA, INC., et al.

 

 

STANLEY LAM                            JAEMIN CHANG

COOKING PAPA, INC.                     KYLE L. SCHRINER

 

 

4. MOTION FOR ORDER REQUIRING PLAINTIFF STANLEY LAM TO FURNISH A BOND

TENTATIVE RULING:

 

On March 23, 2017, this matter was designated as complex and assigned to the Honorable Marie S. Weiner for all purposes.  As a result, all pending hearing dates have been VACATED. 

 

5. MOTION FOR ORDER ENFORCING STATUTORY INSPECTION RIGHTS

TENTATIVE RULING:

 

On March 23, 2017, this matter was designated as complex and assigned to the Honorable Marie S. Weiner for all purposes.  As a result, all pending hearing dates have been VACATED. 

 

9:00

Line: 6  

17-CIV-00235     CYNTHIA PRAMONO vs. OCWEN LOAN SERVICING, LLC, et al.

 

 

CYNTHIA PRAMONO                        TIFFANY R. NORMAN

OCWEN LOAN SERVICING, LLC               TRACY M. TALBOT

 

 

MOTION TO CONSOLIDATE THIS CASE WITH CASE 17-UDL-00086

TENTATIVE RULING:

 

Plaintiff Cynthia Pramono’s Motion to Consolidate pursuant to Code Civ. Proc. §1048(a) is CONDITIONALLY GRANTED so long as the Defendants in 17-UDL-00086 (the Pramonos) pay the fair rental value of the Property into escrow pending the completion of the litigation.  (See Code Civ. Proc. §1170.5(a)-(c).)   

 

Breckenridge Property Fund 2016’s contention that the two cases involve no common questions because the unlimited civil case seeks only damages and does not involve a dispute over title is belied by the face of the Complaint, in which Breckenridge is a named defendant, claims are asserted in order to void Breckenridge’s Trustee’s Deed Upon Sale and a Quiet Title claim is asserted as to Breckenridge.  However, while the Court finds the two matters involve the common question of whether the sale was valid (Code Civ. Proc. §1048(a)), the Court is also cognizant of Breckenridge’s claim to be a bona fide purchaser for value of the Property and of the Legislature’s intent that unlawful detainer actions be summary in nature.  Accordingly, the Court finds that consolidation would be appropriate here only upon the Pramonos paying fair rental value into escrow while the case is litigated so as to minimize the potential harm to Breckenridge resulting from the delay.  The Court also notes that none of the alleged wrongful conduct (Ocwen’s alleged violations of Civ. Code §2923.6) is alleged against Breckenridge.  For these reasons, the Motion to Consolidate is CONDITIONALLY GRANTED, and the Pramonos are ORDERED to pay the fair market rent into an escrow during the pendency of the action as a condition of consolidation.  Should the Pramonos ultimately prevail in the consolidated action, the escrowed funds would be returned to them; should Breckenridge prevail, the funds would be remitted to Breckenridge.

 

Breckenridge’s Opposition states, without explanation, that $3,500/mo. would be an appropriate monthly rent.  The parties shall appear to discuss the issue of fair rental value and the type of escrow or attorney trust account that should hold the fair rental value payments during the pendency of the consolidated action.  The  parties will appear in order to meet and confer on those issues, to reach a resolution, if possible.   

 

Breckenridge’s Request for Judicial Notice is GRANTED as to Exhibits 1-4.  Evid. Code §452(c).

 

     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.

 


Line: 7

17-UDL-00086   Breckenridge Property Fund 2016 LLC vs. Hami Pramono,

                 et al.

 

 

Breckenridge Property Fund 2016 LLC     KEVIN A. HARRIS

HamiP ramono                           Tiffany R. Norman

 

 

MOTION TO CONSOLIDATE FILED UNDER 17-CIV-00235

TENTATIVE RULING:

 

[See tentative ruling issued for Line 6, supra.]

 


9:00

Line: 8

CIV536192     PATRICIA SORENSEN VS. MOTEL 6 OPERATING LP

 

 

PATRICIA SORENSEN                      ARA JABAGCHOURIAN

MOTEL 6 OPERATING LP                    JOHN M. FEDOR

 

 

motion for leave to Amend Complaint

TENTATIVE RULING:

 

     The Motion to Allow Filing of the proposed First Amended Complaint (“FAC”) is GRANTED.  Plaintiff shall file and serve the proposed FAC no later than April 7, 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.

 


9:00

Line: 9

CIV536243     MAGDA A. GONZALEZ VS. TOMS C. NEWBY

 

 

MARIA DE LA LUZ PADILLA-ZAMORA          RICHARD J. STASKUS

CLINTON TOMS NEWBY, III                 RICHARD GARCIA

 

 

motion to compel PLAINTIFF'S RESPONSES TO DEFENDANTS' DISCOVERY REQUESTS

TENTATIVE RULING:

 

    Pursuant to the Stipulation and Order continuing the date of the instant hearing on Defendants’ Motion to Compel, signed by the parties and the Court on March 21 and March 24, 2017, respectively, this matter is CONTINUED to April 18, 2017, at 9:00 A.M., in the Law and Motion department.

 


9:00

Lines: 10 - 12

CIV537830     PATRICIA COLOMBO VS. USS CAL BUILDERS INTERNATIONal,

                  inc., et al.

 

 

PATRICIAC OLOMBO                       MARK D. ROSENBERG

USS CAL BUILDERS INTERNATIONAL, INC.    JONATHAN C. BACON

 

 

10. motion to bifurcate

TENTATIVE RULING:

 

The Motion of Defendant USS Cal Builders International, Inc., joined in by Defendants South San Francisco Unified School District and Northwest Cascade, Inc., to Bifurcate the issues of liability and damages is DENIED.  At this time, Defendants have not established that bifurcation is in the interest of convenience or judicial economy, nor that it is necessary to avoid prejudice.  (See Code Civ. Proc. §§598, 1048.)  This denial is without prejudice to a renewal of this Motion, as a pre-trial motion, before the judge to whom this matter is assigned for trial.

 

     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.

 

 

11. joinder of south san francisco unified school district to uss cal builders INTERNATIONAL, inc.’s motion to bifurcate

TENTATIVE RULING:

 

The unopposed Motion of Defendant South San Francisco Unified School District for Joinder in the Motion of Defendant USS Cal Builders International, Inc. to Bifurcate is GRANTED.

 

     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.

 

 

12. joinder of northwest cascade, inc. to uss cal builders INTERNATIONAL, inc.’s motion to bifurcate

TENTATIVE RULING:

 

The unopposed Motion of Defendant Northwest Cascade, Inc. for Joinder in the Motion of Defendant USS Cal Builders International, Inc. to Bifurcate is GRANTED.

 

     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

Lines: 13 & 14

CLJ530172     PITCAIRN homeowners association VS. ELIZABETH Marie

                  Barnson KARNAZES

 

 

PITCAIRN HOMEOWNERS ASSOCIATION         JOHN L. FITZGERALD

ELIZABETH MARIE BARNSON KARNAZES        Pro/per

 

 

13. Motion for order that cross-defendants’ requests for admissions be deeemed admitted  

 

     This unopposed Motion for Order That Cross-Defendants’ Requests for Admissions Be Deemed Admitted is GRANTED.  All of the requests set forth in the respective Request for Admissions, Set One, served upon Cross-Complainant Elizabeth Karnazes by Cross-Defendants Pitcairn Homeowners Association, Dan James and Mulqueeney and Associates are DEEMED ADMITTED.

 

     The Motion for Sanctions is GRANTED in the amount of $750.00, payable by Cross-Complainant Elizabeth Karnazes to Pitcairn Homeowners Association, Dan James and Mulqueeney and Associates, jointly.  (The amount is to be paid to all three Cross-Defendants collectively, not $750.00 to each one.)  Cross-Complainant shall pay the monetary sanction no later than 10 days after service of written Notice of Entry of Order on this Motion.

 

     This Order is effective immediately, subject to potential modification after the Court rules on Cross-Complainant Elizabeth Karnazes’s Motion for Reconsideration of the January 19, 2017 Order.  Said Motion for Reconsideration will be continued from April 4, 2017 to April 5, 2017 when Judge DuBois returns.

 

     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 contested, prevailing 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 John L. Grandsaert, Department 11.

 

 

14. Motion for issue and monetary sanction for disobedience of discovery order re: interrogatory response   

TENTATIVE RULING:

 

The unopposed Motion for Issue Sanctions is GRANTED as to matters 1 through 45 identified in the Notice of Motion.  In preparing the written order, Cross-Defendants shall specify the 45 issues that are identified in the Notice of Motion.

The Motion for a Monetary Sanction is GRANTED in the amount of $1,500.00, payable by Cross-Complainant Elizabeth Karnazes to Pitcairn Homeowners Association, Dan James and Mulqueeney and Associates, jointly.  (The amount is to be paid to all three Cross-Defendants collectively, not $1,500.00 to each one.)  Cross-Complainant shall pay the monetary sanction no later than 10 days after service of written Notice of Entry of Order on this Motion.

This Order is effective immediately, subject to potential modification after the Court rules on Cross-Complainant Elizabeth Karnazes’s Motion for Reconsideration of the January 19, 2017 Order.  Said Motion for Reconsideration will be continued from April 4, 2017 to April 5, 2017 when Judge DuBois returns.

     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 contested, prevailing 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 John L. Grandsaert, Department 11.  

 


 

 

 

 

 


POSTED:  3:00 PM

 

© 2017 Superior Court of San Mateo County