February 26, 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

 

Tuesday, February 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

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16-CIV-01486     SHIN LANG PANG vs. BANK OF AMERICA, N.A., et al.

 

 

SHIN LANG PANG                        STEPHEN R. GOLDEN

BANK OF AMERICA, N.A.                 DAVID E. PINCH

 

 

motion for Judgment on the Pleadings

TENTATIVE RULING:

 

The motion is unopposed.

 

The motion is GRANTED as to the first and third causes of action. California’s nonjudicial foreclosure statutory scheme “does not provide for a preemptive suit challenging standing” to foreclose. (Robinson v. Countrywide Home Loans, Inc. (2011) 199 Cal.App.4th 42, 46.) Since the first cause of action challenges Defendant’s “right to institute foreclosure proceedings” (Complaint para. 45), and the third cause of action alleges a controversy about whether Defendant has any rights to enforce the Note or Deed of Trust, they fails to state a cause of action.

 

The motion is GRANTED as to the second cause of action.  The basis of the claim is that the signatures are forged. (Complaint para. 49.)  Plaintiff alleges this conclusion merely on information and belief, which is insufficient if it “merely asserts the facts so alleged without alleging such information that leads the plaintiff to believe that the allegations are true.” (Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1158–1159.) Since the cause of action pleads a mere conclusion that the signatures are forged, it fails to plead sufficient facts to state a cause of action.

 

The motion is  GRANTED as to the fourth cause of action. Since Defendant rescinded the Notice of Default in October 2016 (Defendant’s RJN Exhibit A), there is no liability for violating Civil Code section 2923.55. (See Civil Code sect. 2924.12, subd. (c).)

 

The motion is DENIED as to the fifth cause of action. Defendant’s only argument is that it rescinded the Notice of Default. This cause of action, however, alleges that Defendant failed to provide a “single point of contact,” as required under Civil Code Section 2923.7. The protection of section 2924.12(c) does not apply, since the claim is not based on recording a Notice of Default.

 

The motion is GRANTED as to the sixth cause of action. Plaintiff alleges that Defendant violated 2924.17 because certain documents Defendant recorded were “fraudulent and/or false.” (Complaint para. 85.) Defendant’s argument fails to support the motion, because merely rescinding the Notice of Default does not cure the violation, since the complaint is directed at an Assignment of Deed of Trust and Substitution of Trustee, and not just the Notice of Default. However, as set forth above (second cause of action), the Complaint fails to allege facts behind the mere conclusion that the documents are false or fraudulent.

 

The motion is GRANTED as to the seventh cause of action. This claim alleges violation of Civil Code section 2924.18. Defendant argues that Civil Code section 2924.12(c) precludes liability. However section 2924.12 does not appear to apply to claims under section 2924.18. (See Civ. Code sect. 2924.12 (addressing only sections  2923.55, 2923.6, 2923.7, 2924.9, 2924.10, 2924.11, and 2924.17).)  Regardless, the Court takes judicial notice of Defendant’s rescission of the Notice of Default, which renders the seventh cause of action moot.

 

The motion is DENIED as to the eighth cause of action. (a) Defendant argues that the complaint fails to allege a breach because no facts demonstrate that Plaintiff was wrongfully denied a loan modification. However, that is not the basis of the claim. Rather, the breaches are the alleged failure to contact Plaintiff to assess his financial situation and explore options and the failure to provide a single point of contact (Complaint para. 108.)  (b) Defendant argues that a loan servicer owes no duty of care when the lender does not exceed the scope of its role as a lender. However, a duty of care could exist if the borrower can plead and prove facts satisfying “the Biakanja factors.” (Daniels v. Select Portfolio Servicing, Inc., (2016) 246 Cal. App. 4th 1150, 1181–82; Nymark v. Heart Fed. Sav. & Loan Assn. (1991) 231 Cal.App.3d 1089, 1098.) The complaint alleges these factors at paragraphs 102-107.

 

The motion is GRANTED as to the ninth cause of action. The complaint does not allege that Bank of America claims any interest in Plaintiff’s property.

 

The motion is GRANTED as to the tenth cause of action. The Complaint fails to allege (1) the existence of a fiduciary duty or (2) accounts evidencing a balance due from defendant to the plaintiff are so complicated that an ordinary legal action demanding a fixed sum is impractical. 

 

The motion is GRANTED as to the eleventh cause of action. The complaint alleges no unfair, unlawful, or fraudulent acts or practices. It further alleges no moneys that could be subject of restitution or “disgorgement of profits” obtained from Plaintiff. 

 

The motions granted regarding the second, sixth, and eleventh causes of action are granted with leave to amend.  Plaintiff is given until March 7, 2017, to file a First Amended Complaint addressing the defects set forth in the second, sixth, and eleventh causes of action.

 

The motions granted regarding the first, third, fourth, seventh, ninth, and tenth causes of action are granted without 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, defendant 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

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16-CIV-02368     VENTANA GROUP, LLC vs. VENTANA CAPITAL ASSOCIATES,

                     LLC, et al.

 

 

VENTANA GROUP, LLC                    MICHAEL B. SACHS

VENTANA CAPITAL ASSOCIATES, llc

 

 

Demurrer and requests for award for sanctions

TENTATIVE RULING:

 

This matter is dropped from calendar as the matter was dismissed on February 6, 2017.

 



9:00

Line: 3

16-CLJ-01115     BANK OF AMERICA, N.A. vs. ROBERT J. PLASCHKE

 

 

BANK OF AMERICA, N.A                  FLINT C. ZIDE

ROBERT J. PLASCHKE

 

 

motion for order TO DEEM REQUESTS FOR ADMISSIONS ADMITTED

TENTATIVE RULING:

 

The unopposed motion is granted.  The genuineness of any documents and the truth of any matters in the requests for admission are deemed admitted. 

 

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: 4

16-UDL-00691     Equity Residential Management LLC vs. ANGELICA

                     BAUTISTA-NOVERAS, et al.

 

 

Equity Residential Management LLC     DANIEL RILEY

ANGELICA BAUTISTA-NOVERAS             Pro Se

 

 

Demurrer

TENTATIVE RULING:

 

This action has been removed to Federal Court, and it appears that this case is still pending there as nothing further has been filed since the prior hearing.  Accordingly, the hearing on the Demurrer of Defendants Angelica Bautista-Noveras and Jesus Madrigal Noveras (“Defendants”) is CONTINUED to March 8, 2017 at 9:00 a.m. in the Law and Motion Department.

 

The tentative ruling for that hearing, if the case has been remanded back to this court, is as follows: 

 

The Demurrer of Defendants Angelica Bautista-Noveras and Jesus Madrigal Noveras (“Defendants”), is ruled on as follows:

 

Plaintiff contends that a demurrer may not be brought in an unlawful detainer action. However, there is legal authority to the contrary. (See Borsuk v. Appellate Division of the Superior  Court (2015) 242 Cal.App.4th 607, 617, fn. 7.) (“a tenant may attack the legal sufficiency of an unlawful detainer complaint by demurrer or motion to strike, “depending on the defect attacked.”).)

 

The demurrer is OVERRULED. Defendants assert that the notice is defective because Plaintiff should instead have served a 30-day notice to terminate tenancy under Civil Code section 1946, or a 90-day notice that applies to a tenant when a property is sold at a foreclosure sale. However, these notices do not apply here because Plaintiff is seeking to evict Defendants based on their failure to pay rent. Thus, Plaintiff alleges facts sufficient to support an unlawful detainer claim based on a 3-day notice to pay rent or quit pursuant to Code of Civil Procedure section 1161(2).

 

Defendants are to file and serve an answer by March 13, 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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Line: 5

17-UDL-00017     GEORGE L. YOUNG vs. SANDRA GILLETTE, et al.

 

 

GEORGE L. YOUNG                       Pro/per

SANDRA GILLETTE                       Shirley E. Gibson

 

 

Motion to set aside default/judgment

TENTATIVE RULING:

 

Defendant SANDRA GILLETTE’s unopposed Motion to Set Aside Default and Vacate Default Judgment is GRANTED pursuant to Code Civ. Proc. Sec. 473(b).  The default and default judgment entered against Defendant on January 18, 2017 are hereby vacated and set aside, and Defendant is granted leave to file her Answer to Complaint on or before February 27, 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: 6

CIV530796     HERMINIO SUAREZ VS. BRIAN LOOK

 

 

HERMINIO SUAREZ                       CONSTANTINE P. TSAGARIS

CLEVELAND LOOK                        THOMAS S. GELINI

 

 

Motion for summary adjudication of issues

TENTATIVE RULING:

 

Defendants CLEVELAND LOOK and BRIAN LOOK’s Motion for Summary Adjudication is DENIED.

 

A motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.  (C.C.P. § 437c(c).)  A defendant has met his or her burden of show that a cause of action has no merit if that party has shown that one or more elements of the cause of action cannot be established, or there is a complete defense to that cause of action.  (C.C.P. § 437c(p)(2).)  Once the defendant has met that burden, the burden shifts to plaintiff to show that a triable issue of one or more material facts exists to that cause of action or a defense thereto.  (Id.) 

 

Similarly, a party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages…or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.  A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.  (C.C.P. § 437c(f)(1), emphasis added.)

 

Where summary adjudication is sought,“the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.”  (CRC Rule 3.1350(b).)  

 

Defendants’ motion is procedurally defective.  While the Notice of Motion states that Cleveland Look seeks summary adjudication of “Paragraphs MV-2 d of Plaintiffs’ First Cause of Action and Plaintiff’s second cause of action for negligent entrustment” (Notice, p. 2:16-17), Defendants’ Separate Statement seeks only summary adjudication of “Plaintiff’s Cause of Action for Negligence as Cleveland Look Did Not Negligently Entrust The Subject Vehicle to Brian Look.”  (Separate Statement, p. 2:6-7.) 

 

The negligent entrustment allegations appear in both the First cause of action for motor vehicle, as well as the Second cause of action for negligence.  (Complaint at MV-2(d); GN-1.)  Moreover, both causes of action also assert that Cleveland Look is liable on the basis of his ownership of the vehicle Brian was driving.  The obligation of an owner that lends his vehicle is one of statutory liability.  (Allen v. Toledo (1980) 109 Cal.App.3d 415, 419; see also Veh. Code §§ 17150, 17151.)  Although Defendants present evidence to support that Cleveland Look is not liable for negligent entrustment, they do not present evidence to also establish that Cleveland is not liable as the owner of the vehicle.  In fact, Cleveland’s declaration admits that he was the registered owner at the time of the accident.  (See Defendant Cleveland Look’s Decl., ¶ 4.)

 

As Defendants’ motion fails to completely dispose of either the First or Second cause of action in Plaintiff’s Complaint, as required by C.C.P. § 437c(f)(1), the instant motion 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

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CIV533871     AMERICAN EXPRESS, ET AL. VS. NATALIA VASSILIEVA

 

 

AMERICAN EXPRESS CENTURION BANK       LINA M. MICHAEL

NATALIA VASSILIEVA                    KEVIN S. SULLIVAN

 

 

motion TO DEEM MATTERS ADMITTED AND FOR MONETARY SANCTIONS

TENTATIVE RULING:

 

The unopposed motion is DENIED without prejudice as plaintiff has not provided proof of service of the underlying discovery.  The McGurk declaration states that his office caused the requests for admission to be served on defendant but there is no proof of service from the person who actually accomplished the service.  The proof of service attached as Ex. 1 concerns requests for production of documents. 

 

If, however, plt appears and provides sufficient POS, the motion will be GRANTED.  Plt has provided sufficient POS regarding the motion and the McGurk declaration states that no responses have been received to date.

 

The request for sanctions 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: 8

CIV537343     CANDY ZUNIGA VS. HENRY D. HAMILTON

 

 

HENRY D. HAMILTON                     JENNIFER STILL

CANDY ZUNIGA                          HEIDI KOHN HUGO

 

 

Motion for summary judgment

TENTATIVE RULING:

 

His matter is continued to March 27, 2017 at 9.00 a.m. in the Law and

Motion department.

 



9:00

Line: 9

CLJ509777     PERSOLVE, LLC VS. NOHEMY LUNA

 

 

PERSOLVE, LLC                         ALAINE PATTI-JELSVIK

SILVA NOHEMI                          CLAIRE JOHNSON

 

 

Motion to dismiss

TENTATIVE RULING:

 

This matter is dropped from calendar as the action was dismissed on January 30, 3017.

 

 



9:00

Line: 10

CLJ534279     BANK OF AMERICA, na VS. KOPILA SUBEDI

 

 

BANK OF AMERICA, NA                   MICHAEL S. HUNT

KOPILA SUBEDI                         Pro/per

 

 

Motion for judgment on pleadings

TENTATIVE RULING:

 

Plaintiff Bank of America, N.A.’s unopposed Motion for Judgment on the Pleadings is GRANTED. Plaintiff Bank of America, N.A. shall have and recover from Defendant Kopila Subedi the principal sum of $7,428.77 plus costs in the amount of $464.00.

 

Plaintiff Bank of America, N.A.’s Request for Judicial Notice is GRANTED pursuant to Evidence Code § 452.   

 

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

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CLJ536612     BANK OF AMERICA, n.a. VS. JOSIE CALABRESE

 

 

BANK OF AMERICA, N.A.                 FLINT C. ZIDE

JOSIE CALABRESE                       Pro/per

 

 

Motion for judgment on pleadings

TENTATIVE RULING:

 

Plaintiff Bank of America, N.A.’s Request for Judicial Notice of the Court’s Nov. 14, 2016 Order granting Plaintiff’s motion to deem its Requests for Admission admitted is GRANTED.  Evid. Code Sect. 452(d). 

 

Plaintiff’s unopposed Motion for Judgment on the Pleadings is also GRANTED.  The Complaint states a claim for breach of a written agreement between the parties involving an extension of credit, alleging that Plaintiff failed to pay sums due under the contract.  The Court’s Nov. 14, 2016 Order deemed admitted the matters stated in Plaintiff’s Requests for Admission to Defendant, Set One.  Defendant did not oppose that motion, and has not sought relief from the Court’s Nov. 14, 2016 Order.  The matters raised in the Requests for Admissions are thus conclusively established against Defendant, including the fact that Defendant currently owes Plaintiff $14,580.12 plus costs.  Plaintiff also has never disputed the amount owed and has no defenses to the Complaint.  Code Civ. Proc. Sect. 2033.410.  There are no material facts that require evidentiary resolution.  Accordingly, the motion is granted. 

 

It is ordered that Plaintiff shall recover from Defendant the sum of $14,580.12, plus costs of $550.00, for a total of $15,130.12. 

 

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: 12

CLJ537547     AMERICAN EXPRESS CENTURION Bank. VS. LESLIE L. CARLSON

 

 

AMERICAN EXPRESS CENTURION Bank       BRIAN P. MCGURK

LESLIE L. CARLSON                     Pro/per

 

 

Motion to Oppose Default Status

TENTATIVE RULING:

 

The Motion of Defendant Leslie L. Carlson (“Defendant”) to Oppose Default Status is DENIED without prejudice.  Defendant failed to file and serve a declaration signed under penalty of perjury setting forth facts in support of this motion.  Defendant is therefore to include such a declaration with any future motion to set aside the default. 

 

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.

 

 

 


 

 

 

 

 

 


POSTED:  3:00 PM

 

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