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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 5, 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 516484 AMOS FINANCIAL, LLC VS. MASSIMO L. CAVALLARO
AMOS FINANCIAL, LLC NICHOLAS C. VALMES
MASSIMO L. CAVALLARO DOMINICK R. LIBONATI
MOTION FOR SUMMARY JUDGMENT AS TO COMPLAINT of AMOS FINANCIAL, LLC, FILED BY AMOS FINANCIAL, LLC
· Plaintiff’s Motion for Summary Judgment and Alternatively for Summary Adjudication are both DENIED because there are triable issues of material fact as to both the First and Second Causes of Action.
· The Evidentiary Objections as to the lack of knowledge of Plaintiff’s Declarant (Brian Donegan) is Sustained. As such, the court sustains objections identified in Defendant’s Objection to Evidence as follows: a through f to be clear, the Court is sustaining the objection only to the extent that assertions made by Declarant Brian Donegan which evidence a lack of personal knowledge will not be considered; if any such assertion references an exhibit, the exhibit will likewise not be considered. Defendant has not objected to the actual exhibits themselves, which are the basis for many of the UMF set forth in Plaintiff’s motion. Defendant did not comply with CRC 3.1354(c) for it failed to provide a proposed order. Counsel for Defendant is directed to provide an order consistent with this ruling.
· A motion for summary judgment, or in the alternative summary adjudication should be denied if there is but a single triable issue of material fact. The Court has identified several, but for the sake of economy has set forth just the following.
· Undisputed Material Fact No. 10: There is a triable issue of material fact as what entity is the predecessor in interest of Amos Financial, LLC. This factual issue is completely created by Plaintiff’s moving papers which indicate that Key Bank is the predecessor of Amos Financial; however, this UMF states that Key Equipment Finance, Inc. a Michigan corporation is the predecessor in interest of Amos Financial, LLC. Defendant also disputes any obligation to Plaintiff is in that the assignment was not done in conformity to the laws of the state of Ohio, which was a choice-of-law provision included in the agreement between Defendant and Key Bank. [Exhibit A]. The Court is somewhat perplexed that neither Plaintiff’s motion nor complaint make mention of this fact or of the nature of the underlying circumstances involving a repossession.
· Undisputed Material Facts Nos. 8 there is a triable issue of fact as to what if any amount is owed. UMF No. 8 states that the balance due and owing on defendant’s account is $74,401.88. This is supported by Exhibits “B”, “C”, and “D”. The principal balance according to the Key Bank accounts as of Nov. 17, 2011 when the account was sold to Pool was $46,709.22 (Exhibit C to Evidence), which is basically the amount referenced in the Bill of Sale and Assignment, Exhibit A to Evidence ($46.709.00). Moreover, Defendant claims the property was devalued while in the custody of Plaintiff’s predecessor in interest. Defendant submits his own declaration in which he states that Key Bank repossessed the boat on May 4, 2010 and at that time the boat was complete with motor, outdrive and stereo. The Declaration of Sarah Caldwell states that she is the office manager of Store Inside where defendant stored his boat until May 4, 2010. When Daybreak Auto Recovery removed the boat from the premises it had a motor and outdrive. Also submitted is a “Report of Vessel Condition and Valuation Survey” done on June 4, 2010 while it was on its trailer at Long Beach Yacht Sales done for Key Bank by John Bradshaw in which it states the engine and stern drive have been removed. There is clearly a triable issue of material as to whether Defendant is entitled to a setoff for the damage to his boat while it was in the possession of Key Bank, before it was sold; and if so, how much. This is supported by the Decl. of Massimo Cavallaro; the Decl. of Sarah Caldwell and the Marine Survey by John Bradshaw.
· The moving party shall submit an order per CRC 3.1312 directly to Department 13, Judge Novak, for signature and thereafter serve written notice of said order on Defendant.
CIV 516645 MARY SUN VS. TIEN YUNG HSU, ET AL.
MARY SUN HYUN-YOUNG NA
TIEN (JERRY) HSU PRO/PER
MOTION TO COMPEL RESPONSES BY MARY SUN
· The motion to compel defendant to respond to special interrogatories is granted. Defendant shall provide verified responses to the interrogatories within 14 days.
MOTION TO ESTABLISH ADMISSIONS BY MARY SUN
· The motion to deem facts admitted is granted.
· The request for sanctions is also granted. Defendant shall pay plaintiff $250 within 14 days.
CIV 520635 DENNISON RAVAL VS. AMERICA'S SERVICING COMPANY, ET AL.
DENNISON RAVAL JOSEPH R. MANNING
AMERICA'S SERVICING COMPANY LASZLO LADI
DEMURRER TO 1st Amended COMPLAINT of RAVAL BY AMERICA'S SERVICING COMPANY
· The respective requests for judicial notice are granted.
· This Court finds that Defendant’s demurrer to the 3rd, 4th and 5th causes of action is not improper, in spite of Judge Bergeron having overruled Defendant’s demurrer on these claims in the original complaint. There is a split of authority throughout the state as to whether this is appropriate. This Court elects to follow the line of cases allowing such practice. Moreover, Defendant asserts that this demurrer is rooted in different facts and new legal theories which clarify issues raised in the first demurrer.
· Defendant’s demurrer to the 1st cause of action for violation of CC 2923.6 is SUSTAINED without leave to amend. Plaintiffs were in bankruptcy at the time they made their 3rd application for loan modification and received a denial letter January 9, 2013. Plaintiffs have not alleged they submitted a loan application subsequent to sending Defendant the March 13, 2013 letter. As an aside, the March 13, 2013 letter did not document what the nature of the “material change in the borrower’s financial circumstances” which would be significant under CC 2923.6(g); instead it merely stated that such a change had occurred. Without “documentation” as to what those changed circumstances were, it would be difficult for the lender to “re-evaluate” any prior loan application, for they would be in the dark as to the specifics of what any such change consisted of.
· Defendant’s demurrer to the 2nd cause of action for Wrongful Foreclosure is GRANTED without leave to amend. Plaintiffs do not have standing to challenge the securitization of the loan. Jenkins v. JP Morgan Chase Bank, N.A. (2013) 216 Clap. 4th 497; Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149. The Court finds these cases more persuasive than Glaski v. Bank of America (2013) 218 Cal.App.4th 1079, a minority opinion, as cited in Plaintiff’s opposition.
· The demurrer to the 3rd cause of action for Violation of BP 17200 is SUSTAINED with leave to amend. From the somewhat meandering nature of the FAC, it is difficult to discern how Defendant ASC acted in violation of the statute. The Court will allow Plaintiff to clarify this ambiguity should it choose to do so in an amended pleading. Plaintiff did not address Defendant’s argument in its opposition.
· The demurrer to the 4th cause of action for negligence is SUSTAINED without leave to amend. Ragland v. US Bank Nat. Assn. (2012) 2009 Cal.App.4th 49. The general rule is that financial institutions do not owe a duty of care to borrowers when their bank’s involvement in the loan transaction does not exceed the scope of its convention role as a mere lender of money. NY mark v. Heart Fed. Savings & Loan Assn. (1991) 231 Cal.App.3d 1089. Plaintiff did not address Defendant’s argument in its opposition.
· The demurrer to the 5th cause of action for an accounting is OVERRULED. Plaintiffs have sufficiently alleged that they were entitled to an accounting to determine the amounts they allegedly overpaid.
· The moving party shall submit an order per CRC 3.1312 directly to Department 13, Judge Novak.
· Any amended pleading shall be filed and served within 10 court days of service on Plaintiff of the written order.
CIV 522390 ANDY SABERI, ET AL. VS. SAEED GHAFOORI, ET AL.
ANDY SABERI THOMAS I. SABERI
SAEED GHAFOORI MATTHEW P. GUICHARD
MOTION FOR LEAVE TO FILE AMENDED COMPLAINT BY ANDY SABERI, THOMAS SABERI & MOTION FOR LEAVE TO FILE FIRST AMENDED ANSWER TO CROSS-COMPLAINT BY ANDY SABERI, THOMAS SABERI
· Plaintiff’s unopposed motion for leave to file an amended complaint is GRANTED. Code of Civ. Proc. Sec. 473 (a)(1). Plaintiff shall file and serve his first amended complaint in conformity with the one submitted with the motion within ten days of service of notice of ruling.
· Cross-defendants’ unopposed motion for leave to file an amended answer to the cross-complaint is GRANTED. Code of Civ. Proc. Sec. 473 (a)(1). The court notes that the proposed 18th affirmative defense references the Code of Civil Procedure while the substance of the affirmative defense seems to concern the Civil Code. Cross-defendants shall file and serve a first amended answer to the cross-complaint containing the appropriate 18th affirmative defense within ten days of service of notice of ruling.
· Moving parties shall submit an order per CRC 3.1312 directly to Department 13, Judge Novak, for signature and thereafter serve on all parties.
CIV 524209 LYNN LEFEVRE, ET AL. VS. NEWMAR CORP., ET AL.
LYNN LEFEVRE GEOFFREY BECKER
NEWMAR CORP. MARY KAY GLASPY
MOTION TO STRIKE PORTIONS OF PLAINTIFFS FIRST AMENDED COMPLAINT BY NEWMAR CORP.
· Defendant Newman’s motion to strike is GRANTED WITH LEAVE TO AMEND. Plaintiffs have failed to allege facts sufficient to show malice or fraud within the meaning of CC 3294(c).
· To support punitive damages, the complaint asserting one of those causes of action must allege ultimate facts of the defendant's oppression, fraud, or malice. (Civ.Code, s 3294.) Malice is properly pleaded by alleging the wrongful motive, intent or purpose. Plaintiff has alleged Defendant was guilty of both malice and fraud. Yet, Plaintiff sets forth a single paragraph in which mere conclusions are made without facts supporting them. For example, Plaintiff alleges Defendant knew on or around April 11, 2011 that the motor home it sold was defective. Even incorporating the language in the 2nd Cause of Action for negligence, that assertion is likewise vague, for in no place in the complaint does Plaintiff assert how or when Defendant became aware of a safety related defect, namely the refrigerator in the motor home had been recalled because of risk of fire. When was the recall? When did Defendant learn of the recall? Plaintiff alleges that the failure to provide any warning was despicable as it consciously disregarded Plaintiff’s rights and safety. While that conclusion may ultimately be supported by evidence, the pleading is lacking of specific facts establishing that Defendant acted either maliciously or fraudulently. Just as the court ruled previously in the first motion to strike, the court again finds that the FAC fails to state any facts providing specific information about the recall or any facts that Defendant Newmar knew that Plaintiffs had not been informed about the recall.
· Moving party shall submit an order per CRC 3.1312 and submit it directly to Department 13 for signature, and thereafter serve a copy on Plaintiff. Plaintiff shall file any amended pleading within 10 court days of service of the written order.
CIV 524462 RALPH RUIZ VS. JP MORGAN CHASE BANK, N.A., ET AL.
RALPH RUIZ NICK PACHECO
JP MORGAN CHASE BANK, N.A. JOSEPH V. QUATTROCCHI
DEMURRER TO COMPLAINT of RUIZ BY JPMORGAN CHAE BANK, N.A., ET AL.
· Moot. Plaintiff advised the Court of its intention to file a Third Amended Complaint March 3, 2014.
CIV 525068 ALPHA CARD SYSTEMS, LLC VS. JOLLY TECHNOLOGIES, INC.
ALPHA CARD SYSTEMS, LLC MATTHEW A. HAULK
JOLLY TECHNOLOGIES, INC. ENOCH H. LIANG
MOTION TO STRIKE CROSS-COMPLAINT BY ALPHA CARD SYSTEMS, LLC
· Moot. First Amended Cross Complaint filed February 19, 2014.
DEMURRER TO CROSS-COMPLAINT of JOLLY TECHNOLOGIES, INC. BY ALPHA CARD SYSTEMS, LLC
CIV 525519 DARRYL KEITH PHILLIPS VS. FELICIA BYARS, ET AL.
DARRYL KEITH PHILLIPS PRO/PER
FELICIA BYARS JOHN L. FLEGEL
DEMURRER TO COMPLAINT of PHILLIPS BY GWEN LUONG, MELISSA MCKOWAN
· The demurrer is DENIED without prejudice. Moving party failed to properly serve Plaintiff. The proof of service indicates service on all Co-Defendants as well as the Law Librarian at the Maguire Jail Facility, which does not constitute service on inmate Plaintiff.
· Moving party shall prepare an order per CRC 3.1312 and submit it directly to Department 13, Judge Novak, for signature.
CIV 525851 ANIRUDDHA CHUDHURI VS. ANTONIO M. ADAO, ET AL.
ANIRUDDHA CHAUDHURI DAVID S. LEVIN
ANTONIO M. ADAO JONATHAN D. BISHOP
MOTION TO EXPUNGE NOTICE OF PENDENCY OF ACTION BY ANTONIO M. ADAO, DEOLINDA M. ADAO
· The motion to expunge the Lis Pendens is granted.
· Plaintiff’s complaint alleges a real property claim. Plaintiff alleges that Defendant Pedro Adao held title (or portion thereof) to real property and transferred it to Defendants Antonio and Deolinda Adao for little or no consideration with an intent to hinder creditors. If the claim were meritorious, then Plaintiff could be entitled to a judgment reverting title back to Defendant Pedro Adao. Since the claim, if meritorious, would affect title to the property, it constitutes a real property claim. (Code of Civ. Proc. § 405.4.)
· Plaintiff fails to demonstrate probable validity of the claim. Plaintiff does not dispute that Pedro Adao’s interest in the property was a purchase option and leasehold, which he transferred to Antonio and Deolinda Adao. He argues only that transfer of those property rights still form the basis of a fraudulent transfer claim. Although this might be correct, it is not the claim that is alleged in the complaint. Plaintiff shows no likelihood in proving that Pedro transferred actual title to Antonio and Deolinda Adao, as alleged in the complaint. CCP 403.32.
CLJ 209084 SHORELINE ASSETS GROUP, LLC VS. BRIAN HOWELL, ET AL.
SHORELINE ASSETS GROUP, LLC CHRISTOPHER PIRRONE
BRIAN D. HOWELL PRO/PER
DEMURRER TO COMPLAINT (UNLAWFUL DETAINER) of SHORELINE ASSETS GROUP, LLC BY BRIAN D. HOWELL
· The demurrer is overruled. Plaintiff has stated a cause of action for unlawful detainer pursuant to CCP §1161a(b)(3). Nothing on the face of the complaint indicates that the Protecting Tenants at Foreclosure Act is applicable for there is no allegation that Defendant is a bona fide tenant. The complaint alleges that Defendants are current occupants and that they were the original trustors under the foreclosed deed of trust.
· The moving party shall submit an order to the court per CRC 3.1312 for signature, and thereafter serve written notice of the order on the Plaintiff.
CLJ 517674 HARVEY BLIGHT VS. COUNTY OF SAN MATEO, ET AL.
HARVEY BLIGHT PRO/PER
COUNTY OF SAN MATEO EUGENE WHITLOCK
MOTION TO RECALENDAR HEARINGS AS REVIEWS TO SUPPORT UNNOTICED ERRONIOUS ACTIONS BY HARVEY BLIGHT
· This matter is transferred to Judge Atack, Department 43.