April 20, 2014
Law & Motions Tentative Rulings
  • Law and Motion Department Tentative Ruling Line:  (650) 363-1882
  • 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 LISA A. NOVAK

Department 13

 

400 County Center, Redwood City

Courtroom 2C

 

APRIL 16, 2014

 

IF YOU INTEND TO APPEAR ON ANY CASE ON THIS CALENDAR YOU MUST DO THE FOLLOWING:

1.      YOU MUST CALL (650) 363-1882 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.

 

N.B. Notifying CourtCall with your intent to appear is not an alternative to notifying the court.  

 

    Case                  Title / Nature of Case

9:00

1

CIV 500541    PACIFIC BELL TELEPHONE COMPANY

                       VS.

                       MITCHELL ENGINEERING, ET AL.

 

 

PACIFIC BELL TELEPHONE COMPANY                                    GERARD J. DONNELLAN

MITCHELL ENGINEERING                                                        WILLIAM A. BOGDAN

 

 

MOTION RE: NOTICE OF APPLICATION AND APPLICATION FOR RENEWAL OF PRIOR MOTION BY JMB CONSTRUCTION, INC.

 

 

  • Defendant / Cross-Defendant JMB CONSTRUCTION, INC.’s Renewed Motion for Summary Judgment / Adjudication is OFF CALENDAR.  Defendant AND Cross-Defendant are directed to contact Department 10 at (650) 261-5110 to schedule a hearing date before Judge Gerald Buchwald.

 

_____________________________________________________________________


9:00

2

CIV 513360   MATTHEW T. OLIVE VS. PROVIDENT FUNDING ASSOCIATES, ET AL.

 

 

MATTHEW T. OLIVE                                                                JOHN S. SARGETIS

PROVIDENT FUNDING ASSOCIATES                                        NATALIE T. NGUYEN

 

 

DEMURRER TO 2nd Amended COMPLAINT of OLIVE BY THE BANK OF NEW YORK MELLON

 

 

  • Defendant The Bank of New York Mellon’s demurrer to the 2nd amended complaint is sustained without leave to amend. Plaintiffs have cited to no authority supporting their claim that assignment of a beneficial interest in a deed of trust carries with it liability arising out of misconduct occurring during origination of the loan.  The Court is mindful that Plaintiff is not alleging liability as a successor in interest, but rather as an assignee.  All of Plaintiff’s claims against Bank of New York Mellon are rooted in its status as an assignee of the loan.  BONY had no involvement in the loan origination, which is the point in time wherein Plaintiff claims he was injured by the misrepresentations of the broker.  Additionally, Defendant BONY cannot be liable in a claim arising under B&P 17200 for such claim cannot be predicated on vicarious liability. Emery v. Visa Internt. Service Ass’n (2002) 95 Cal.App.4th 952.

 

  • If the tentative ruling is uncontested, it shall become the order of the Court. The moving party 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. 

 

_____________________________________________________________________


9:00

3

CIV 516395    TIAN JUI LIN, ET AL. VS. JPMORGAN CHASE BANK, N.A.

 

 

TIAN JUI LIN                                                                            EDWARD C. CASEY

JPMORGAN CHASE BANK, N.A.                                               S. CHRISTOPHER YOO

 

 

MOTION FOR SUMMARY JUDGMENT AS TO 1st Amended COMPLAINT of LIN FILED BY TIAN JUI LIN, HSIU LING YEH

 

·         The Court rules on Plaintiff’s objections as follows:  1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 27, 28, 29, 30, and 32 are SUSTAINED.   The balance of the objections are OVERRULED. 

 

   The Court rules on the DEFENDANT’S objections as follows:

 

o   The objection to the declaration of Yeh is SUSTAINED.

 

o   The objection to the declaration of Lin is SUSTAINED.

 

o   The objection to the declaration of Casey is OVERRULED, but only    to the extent that the court will take judicial notice that a First Amended Complaint was filed.  The Court sustains the objection based on the failure to comply with CCP 446, and as such no facts averred are considered for their truth. 

 

o   The objections to the Request for Judicial Notice of the Alameda complaint, thirds amended complaint in RG08381931 are SUSTAINED.  The objection to the Verified First Amended Complaint in San Mateo County case CIV516395 is SUSTAINED for the same reasons set forth herein sustaining the objection to Casey’s declaration; CCP 446

 

  • The motion for summary judgment or, alternatively, summary adjudication is denied.  To the extent that Plaintiff’s Reply papers consist almost entirely of new evidence in the form of exhibits, such evidence was not considered.  The function of the reply is to respond to opposing party’s statement of additional disputed facts which undermine the material facts set forth in the moving party’s papers.  Exhibits and evidence in support of the reply is not normally allowed.  Nazir v. United Ai4rliens Inc., (2009) 178 Cal.App.4th 243.

 

  • As to the First Cause of Action to quiet title, plaintiffs have not proved their title.  The deed on which they rely has not been properly authenticated, and instead was just attached as an exhibit.    In order to prevail on a cause of action to quiet title, a Plaintiff must verify the complaint and allege: 1) a legal description of the property 2) his title and the basis for it 3) the adverse claims to his title 4) the date as of which the determination is sought and 5) a prayer for the determination of his title against the adverse claims.  CCP §761.020. Plaintiffs have not established that Chase has any present adverse claim to title. Evidence relied upon in opposition indicates that Chase is no longer the holder of the deed of trust, in that it has been assigned to US Bank.  Def. UMF 17.

 

  • To the extent they rely on their verified FAC to establish many of the elements, it was verified by their attorney, not Plaintiffs, and the Court has sustained the objection to this evidence. 

 

  • With respect to the Second Cause of Action for declaratory relief, there is a triable issue as to whether the settlement agreement includes a waiver of the right to collect on the loan.  See Defendant’s Undisputed Material Facts 33-37 and 41. 

 

  • Regarding the  Third Cause of Action for breach of contract, plaintiffs has not met their burden to show that there is no defense to the claims.  With the Court sustained objections to much of Plaintiff’s evidence, there is insufficient admissible evidence to prove the essential elements.  CCP §437c(p)(1).     The crux of Plaintiff’s claim is that the Defendant’s are in breach of the settlement agreement in the Alameda County matter because Defendant seeks repayment of the $503,000 loan it gave Plaintiffs.  Plaintiffs contend that they have performed their obligation under the settlement agreement by dismissing the Alameda County case.  Defendants contend they never entered into an agreement to release Plaintiffs from that obligation, or to reconvey the deed of trust, but rather only to pay Plaintiffs’ $7,500.00 in exchange for dismissing the case.  In support of this position, Defendant’s submit UMF 38, which is Plaintiff Yeh’s deposition testimony that the settlement was a payment of $7,500.00 in exchange for dismissal.  For purposes of this motion Plaintiffs have failed to establish that the settlement agreement included a release or waiver of the right of Defendant to collect on the loan.   Plaintiffs also fail to offer any evidence to establish damages resulting from the alleged breach of the settlement agreement. 

 

_____________________________________________________________________


9:00

4

CIV 524022    RANDY WENKE VS. LAURA WENKE

 

 

RANDY WENKE                                                                        JANET BRAYER

LAURA WENKE                                                                        MICHAEL E. ADAMS

 

 

MOTION TO VACATE OR MODIFY STAY BY RANDY WENKE

 

·         Plaintiffs’ request for judicial notice is GRANTED.

 

·         Plaintiffs Randy Wenke and Wenke Construction, Inc.’s motion to vacate or modify stay is DENIED without prejudice to plaintiff to renew this motion after April 28, 2014, the currently scheduled trial date in the parallel criminal proceedings involving defendant. 

 

·         If the criminal trial proceeds as scheduled, at the trial’s conclusion,  plaintiff can seek to lift the stay in order to seek discovery from defendant by making particularized discovery requests and defendant can respond accordingly, choosing to assert the privilege against self-incrimination to particularized discovery requests.  The court will then be in a position to determine whether particular questions or requests would elicit answers that would support a conviction.  See, Fuller v. Superior Court (2001) 87 Cal.App.4th 299; Blackburn v. Superior Court (1993) 21 Cal.App.4th 414, 428.

 

·         If the criminal trial does not proceed as scheduled on April 28, 2014, plaintiff can renew this motion in order to proceed with making particular discovery requests directed to defendant.

 

·         The conditions requested by plaintiff to limit access by defendant to proceeds from the court-ordered sale of real properties are problematic as they may conflict with rulings made by the temporary judge in the family law action and because they are akin to prejudgment attachment procedures.  Furthermore, plaintiff cites no authority for the proposition that limiting a defendant’s access to funds is an appropriate mechanism for the court in its determination to balance the interests of plaintiff proceeding with civil litigation and of defendant in asserting her constitutional rights.  Finally, the court notes that the family court order was the product of a stipulation by the parties.  The three properties at issue are expressly incorporated into that stipulation and order, at paragraph 3, so the urgency in modifying the stay in order to strike some further equity between the parties is questionable.

 

·         If the tentative ruling is uncontested, it shall become the order of the Court. The moving party 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

_____________________________________________________________________


9:00

5

CIV 525052    LORIE WILLIAMS, ET AL.

              VS.

              CONSTITUTION DRIVE INVESTORS, INC., ET AL.

 

 

LORIE WILLIAMS                                                                     SIMON R. GOODFELLOW

CONSTITUTION DRIVE INVESTORS, INC.                                S.D. NARAYAN

 

 

DEMURRER TO COMPLAINT of WILLIAMS BY CONSTITUTION DRIVE INVESTORS, INC., DR. ED BARTHOLD

 

 

·         Moot.  Plaintiff has filed a first amended complaint.

 

_____________________________________________________________________


9:00

6

CIV 525864    BANK OF AMERICA, N.A. VS. JAIME GALLEGOS

 

 

BANK OF AMERICA, N.A.                                                        THOMAS M. MORLAN

JAIME GALLEGOS                                                                    MARK A. RUIZ

 

 

DEMURRER TO COMPLAINT of BANK OF AMERICA, N.A. BY JAIME GALLEGOS

 

·         Defendant’s Request for Judicial Notice is GRANTED pursuant to Evidence Code Sec. 452(h).

 

·         Defendants’ Demurrer to the 1st and 2nd Causes of Action of Plaintiff’s Complaint is SUSTAINED with leave to amend. 

 

o   1st C/A – Breach of Contract: Plaintiff’s 1st C/A fails because it does not provide sufficient facts to constitute a cause of action for breach of contract under CCP § 430.10(e).  Plaintiff did not include the required copy of the contract at issue or set out the terms of the contract verbatim in the Complaint.  Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 458-59.  California’s Deficiency Judgment Statutes do not apply to the contract and short sale at issue here because they occurred before the enactment of both CCP §§ 580b(b) and 580e.

 

o   2nd C/A – Common Counts: Plaintiff’s 2nd C/A fails because it is based on the same set of facts and seeks the same recovery as Plaintiff’s first cause of action.  “If plaintiff is not entitled to recover under one count in a complaint wherein all the facts upon which his demand is based are specifically pleaded, it is proper to sustain a demurrer to a common count set forth in the complaint, the recovery under which is obviously based on the set of facts specifically pleaded in the other count.”  Zumbrun v. University of Southern California (1972) 25 Cal.App.3d 1, 14. 

 

·         If the tentative ruling is uncontested, it shall become the order of the Court. The moving party 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. 

 __________________________________________________________________


9:00

7

CLJ 209256    HILLSDALE INN VS. MAYA ARCTURA FINNIE, ET AL.

 

 

HILLSDALE INN                                                                        PRO/PER

MAYA ARCTURA FINNIE

 

 

MOTION TO STRIKE COMPLAINT BY MAYA ARCTURA FINNIE

 

 

·         Defendant Maya Finnie’s Motion to Strike the First Amended Complaint is DENIED without prejudice.

 

o   Pursuant to the San Mateo County Superior Court Local Rule 3.15, a motion to strike in an unlawful detainer matter is supposed to be set no less than 16 court days nor more than 35 days after filing [see also CCP § 1005 and CRC 3.1320(d).  This motion was filed on March 26, 2014 and calendared for hearing on April 16, 2014.  It was served by mail, which increases notice by five additional days pursuant to CCP 1005.  Notice is insufficient. Filing on March 26, 2014 provides only 13 court days’ notice [Monday March 31 being a court holiday].

 

·         If the tentative ruling is uncontested, it shall become the order of the Court. The moving party 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. 

 

_____________________________________________________________________


9:00

8

CLJ 209267    HILLSDALE INN VS. MALETINA ANITIKAPU KAUTAI

 

 

HILLSDALE INN                                                                        PRO/PER

MALETINA ANITIKAPU KAUTAI

 

 

MOTION TO STRIKE COMPLAINT BY MALETINA ANITIKAPU KAUTAI

 

 

·         Defendant Maletina Kautai’s Motion to Strike the First Amended Complaint is DENIED without prejudice.

 

o   Pursuant to the San Mateo County Superior Court Local Rule 3.15, a motion to strike in an unlawful detainer matter is supposed to be set no less than 16 court days nor more than 35 days after filing [see also CCP § 1005 and CRC 3.1320(d).  This motion was filed on March 26, 2014 and calendared for hearing on April 16, 2014.  It was served by mail, which increases notice by five additional days pursuant to CCP 1005.  Notice is insufficient. Filing on March 26, 2014 provides only 13 court day’s notice [Monday March 31 being a court holiday].

 

·         If the tentative ruling is uncontested, it shall become the order of the Court. The moving party 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. 

 

 

_____________________________________________________________________

 


In the Superior Court of the State of California

In and for the County of San Mateo

 

Presiding Judge Law and Motion Calendar

Judge: HONORABLE ROBERT D. FOILES

Department 21

 

400 County Center, Redwood City

Courtroom 2J

 

APRIL 16, 2014

 

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

 you must call (650) 261-5121 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

9:00

1

CIV 512404    MARLENE MCGOWEN VS. NAZARETH CLASSIC CARE COMMUNITY

 

 

MARLENE MCGOWEN                                                            DIANE C. DECKER

NAZARETH CLASSIC CARE COMMUNITY                                JAMES F. WAITE

 

 

MOTION FOR ORDER GRANTING PREFERENCE BY MARLENE MCGOWEN

 

 

·         Appear. 

 

 

______________________________________________________________________


9:00

2

CIV 523098    TRESTLE GLEN ASSOCIATES VS. SEGUE CONSTRUCTION, INC.

 

 

TRESTLE GLEN ASSOCIATES                                                    PATRICK P. GUNN

SEGUE CONSTRUCTION, INC.                                                 MATTHEW D. GIAMPAOLI

 

 

STATUS OF SPECIAL MASTER

 

 

·         Continued to July 18, 2014 at 9:00 A.M. in Department PJLM. 

 

 

______________________________________________________________________

 

 

 

 


POSTED:  3:10 PM

 

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