October 20, 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

 

Friday, October 20, 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

17-CIV-00937     CABRILLO UNIFIED SCHOOL DISTRICT vs. WEST BAY

                   BUILDERS, INC., et al.

 

 

CABRILLO UNIFIED SCHOOL DISTRICT        DEIDREE Y.M.K. SAKAI

WEST BAY BUILDERS, INC.                STEVEN M. CVITANOVIC

 

 

LEXINGTON INSURANCE company’s MOTION FOR LEAVE TO FILE COMPLAINT IN INTERVENTION

TENTATIVE RULING:

 

Lexington Insurance Company’s motion to intervene is GRANTED. Intervener has established that it has an interest in the matter in litigation and that it is so situated that the disposition of the action may, as a practical matter, impair or impede its ability to protect that interest (Code of Civil Procedure Section 387(b)).

 

Lexington shall file its Complaint in Intervention no later than October 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: 2

17-CIV-02194   LUIS B. CABRERA vs. LONG BEACH MORTGAGE COMPANY, et al.

 

 

LUIS B. CABRERA                        Pro/PER

LONG BEACH MORTGAGE COMPANY ET AL       DAVID M. LIU

DEUAATSCHE BANK NATIONAL TRUAT          DOUGLAS STRAUS

 

DEFENDANT’S HEARING ON DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT

TENTATIVE RULING:

 

The Demurrer of defendants JP Morgan Chase Bank, N.A.; California Reconveyance Company; Deutsche Bank National Trust Co., as Trustee for Long Beach Mortgage Loan Trust 2006-5; and Long Beach Securities Corp. is sustained withOUT leave to amend.

 

Defendants’ Request for Judicial Notice is granted. 

 

On its own motion, the Court takes judicial notice of the entire record and files in the related actions, namely, Cabrera v. Long Beach Mortgage, et al. (San Mateo Superior Court Case No. CIV495541) (the “First Lawsuit”) and Cabrera v. Long Beach Mortgage Company, et al. (San Mateo Superior Court Case No. 16CIV02094) (the “Second Lawsuit”), pursuant to Evidence Code § 452.  Linda Vista Village San Diego Homeowners Association, Inc. v. Tecolote Investors, LLC (2015) 234 Cal.App.4th 166, 184; Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265.  In light of this evidence, the facts demonstrate that this is Plaintiff’s third lawsuit regarding a dispute about his mortgage. 

 

Res Judicata.  The issue preclusion doctrine operates to bar subsequent litigation where there is: (1) a final adjudication, (2) of an identical issue, (3) that was actually litigated and necessarily decided in the first suit, and (4) asserted against one who was a party in the first suit or one in privity with that party.  DKN Holding LLC v. Faerber (2015) 61 Cal.4th 813, 818.  Plaintiff was a party in both the First and Second Lawsuits referenced above.  Both of those lawsuits resulted in final adjudication on the merits.  The First Lawsuit involved, inter alia, claims for: (1) concealment, (2) misrepresentation, (3) unfair competition, (4) quiet title, and (5) rescission.  Request for Judicial Notice, Ex. 9.  The issues raised in that litigation are identical to the issues raised in the instant litigation, with the exception of some vague references to: (1) a telephone call regarding postponing a foreclosure in June 2016 (First Amended Complaint ¶ 21), and (2) a foreclosure auction that was scheduled in October 2016 (First Amended Complaint ¶ 41)—both of which involve events that would necessarily have transpired after the adjudication of the prior lawsuits.  However, on demurrer a court must “give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.”  Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 (citations omitted).  Here, the references to foreclosure in 2016 are quite vague.  For example, Plaintiff alleges that Defendants “scheduled” an auction in October 2016, but the instant case was filed in May 2017—at a time when that “scheduled” event either did or did not take place.  Also, the allegation pertaining to the June 2016 telephone conversation references that Plaintiff “later” discovered that a Notice of Trustee’s Sale had been recorded, but then proceeds to describe the discovery of recorded foreclosure documents that “had been recorded a few years ago.” (First Amended Complaint ¶¶ 21-23 (emphasis added).  Reading these allegations in context, as well as considering them in the context of the prior lawsuits, and in light of the fact that Plaintiff’s opposition makes no reference to any new foreclosure proceedings, the Court finds that the issues raised in the instant litigation are identical to those raised in the First Lawsuit and that the doctrine of issue preclusion operates to preclude their being re-litigated. 

 

Each of the causes of action also fail on their merits for the reasons set forth below. 

 

Second, Third, Fourth, and Fifth Causes of Action (Set Aside Trustee’s Sale; Void or Cancel Trustee’s Sale; Void or Cancel Assignment of Deed of Trust; and Cancellation of Instruments).  Plaintiff is challenging the validity of the assignment of his loan, as well as the subsequent foreclosure sale. 

 

The Foreclosure Sale Documents.  Defendants have produced judicially-noticeable evidence to establish that the foreclosure sale was rescinded in 2013.  RJN, Ex. 6.  Plaintiff has not pinpointed any other foreclosure proceedings that have been initiated or completed, so the Second and Third Causes of Action fail to state an actual controversy since the documents that would be set aside or voided have already been rescinded.

 

The Assignment Documents.  A borrower does not have standing to challenge an assignment based on irregularities that occur in the assignment documents between lenders if the irregularity only renders the assignment voidable, rather than void.  Mendoza v. JPMorgan Chase Bank, N.A. (2016) 6 Cal.App.5th 802, 810-811, citing Yvanova v. New Century Mortg. Corp. (2016) 62 Cal.4th 919, 923; see also Yhudai v. Impac Funding Corporation (2016) 1 Cal.App.5th 1252, 1259.  As such, Plaintiff does not have standing to challenge the assignment. 

 

Sixth Cause of Action (Quiet Title).  The basis of Plaintiff’s effort to quiet title is, implicitly, to challenge the validity of the assignment.  He admits as much—“defendants signed the Deed of Trust to themselves, and do not have a valid chain of title to hold any interest in the subject property.”  FAC ¶ 14 (emphasis added).  However, Plaintiff admits that he owes a debt on the Subject Property (FAC, ¶ 14 (“Plaintiff is owner by Grant Deed, secured by a Deed of Trust…”) (emphasis added); see also FAC ¶¶ 12, 37, 49, 58), and there exists an “equitable principle that 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 (citation omitted).  Therefore, Plaintiff cannot cast off a debt that he admits is owed.

 

Seventh Cause of Action (Bus. & Prof. § 17200). 

 

Plaintiff Lacks Standing.  To have standing to assert a private right of action for violation of Bus. & Prof. § 17200, a plaintiff must allege some form of an economic injury.  Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 323.  Here, as set forth above, the foreclosure sale that took place in May 2010 was rescinded in October 2013.  As a result of that rescission, Plaintiff did not lose his home and did not lose any money, so he has not suffered any economic injury and thus does not have standing to assert a claim under Bus. & Prof. § 17200. 

 

Claims Under Bus. & Prof. Code § 17200 Are Time-Barred.  The statute of limitations for claims under Bus. & Prof. § 17200 is four years.  Bus. & Prof. § 17208.  The foreclosure sale at issue in this litigation is from 2010, so a claim under Bus. & Prof. § 17200 is time-barred.

 

Implied Covenant of Good Faith and Fair Dealing.  Plaintiff’s allegations allege a cause of action for breach of the implied covenant of good faith and fair dealing into the umbrella of a claim under Bus. & Prof. § 17200.  FAC ¶¶ 68-73.  To the extent that Plaintiff may be alleging a tort-based claim for breach of that covenant where a “special relationship” exists, no such relationship has been alleged.  Bionghi v. Metro. Water Dist. (1999) 70 Cal.App.4th 1358, 1370.  To the extent that Plaintiff is alleging a contract-based claim for breach of that covenant, “[w]e are aware of no reported case in which a court has held the covenant of good faith may be read to prohibit a party from doing that which is expressly permitted by an agreement.”  Carma Cevelopers (Cal.), Inc. v. Marathon Development California, Inc. (1992) 2 Cal.4th 342, 374.  Here, the Deed of Trust expressly allows the loan to be assigned (RJN, Ex. 1, ¶ 20), such that it is not a breach of the implied covenant of good faith and fair dealing to assign the loan. 

 

Eighth Cause of Action (Fraud).  Each element of fraud must be pled with specificity (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645; Tarmann v. State Farm Mutual Auto Insurance Co. (1991) 2 Cal.App.4th 153, 157), which includes alleging how, when, where, to whom, and by what means representations are tendered (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73).  Plaintiff’s fraud claim is not pled with sufficient specificity. 

 

Moreover, fraud claims are barred by a three-year statute of limitations.  CCP § 338(d).  If Plaintiff is alleging fraud in the loan origination that occurred in 2006, that is clearly time-barred since this case was filed in May 2017.  If Plaintiff is alleging fraud in the recording of the Assignment of Deed of Trust or the Notice of Trustee’s Sale that were recorded in 2010, those claims are clearly time barred.

 

First and Ninth Causes of Action (Declaratory and Injunctive Relief).  Declaratory relief is a forward-looking or future-looking cause of action.  Cardellini v. Casey (1986) Cal.App.3d 1986, 397-398.  Here, Plaintiff is seeking redress for past wrongs, so declaratory relief is inappropriate. The past wrong at issue appears to be the foreclosure sale that took place in May 2010. 

 

As to the cause of action for injunctive relief, there are no current foreclosure proceedings pending in this case so there is nothing to enjoin. 

 

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 PARTIES are 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

Line: 3

17-CIV-02879     LOUISE C. ARAUJO vs. NEWPORT CAPITAL RECOVERY GROUP

                   II, LLC, et al.

 

 

LOUISE C. ARAUJO                       BARBARA CRAY

NEWPORT CAPITAL RECOVERY GROUP II, LLC  BRADLEY P. BOYER

KENOSIAN & MIELE                       BRADLEY P. BOYER

 

DEFENDANT’S SPECIAL MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT (anti-slapp)

TENTATIVE RULING:

 

     A.   Defendant Newport Capital Recovery (4th cause of action).       

 

The motion by Newport Capital Recovery is MOOT. The only motion on behalf of Newport Capital Recovery is against the 4th cause of action. (See Notice of Motion at 2:10-15.)  Since the 4th cause of action has been dismissed, Newport Capital Recovery’s motion is moot and the court loses jurisdiction to rule on it. (Law Offices of Andrew Ellis v. Yang (2009) 178 Cal.App.4th 869, 878-79.)

 

     B.   Defendant Kenosian & Miele (“entire complaint”)

 

The motion of Kenosian & Miele to strike the entire complaint against it is GRANTED. 

 

The first and second causes of action are not directed against Defendant Kenosian & Miele. If Plaintiff prevails on these claims, she will set aside the renewed judgment and the original judgment, a result that affects only Defendant Newport Capital Recovery Group. Defendant Kenosian & Miele has no stake in the first or second cause of action. Plaintiff therefore has no probability of prevailing on these causes of action against Defendant Kenosian & Miele.   

 

The third cause of action consist of Kenosian & Miele’s efforts to enforce the judgment which are clearly protected activity of the anti-SLAPP statue.  The underlying action is based on Plaintiff’s contention that she never owed the underlying debt and that the current amount of judgment is “unfair and unjust.”  (Complaint para. 64-66.) Neither of those grounds is a basis to enjoin enforcement of an otherwise valid judgment. In short, this cause of action attacks the substance of the underlying claim, a fight that belongs in the underlying action, not in this one.  Therefore, Plaintiff fails to show a probability of prevailing on the third cause of action against Defendant Kenosian & Miele.

 

The motion of Kenosian & Miele as to the fourth cause of action is moot. The fourth cause of action has been dismissed.

 

The fifth cause of action alleges that Kenosian & Miele is violating the Rosenthal Act (Civ. Code sect. 1788.15) by attempting to collect on a judgment with knowledge that the service of process was not legally effected. (Complaint para. 79.) Plaintiff offers the declaration of Linton Mohammed, a forensic document examiner, who opines that the signature on the Proof of Service of Summons might not be authentic. Plaintiff also testifies that she was not served with the complaint (Declaration of Araujo para. 8.) However, Plaintiff’s evidence offers no suggestion that Defendant Kenosian & Miele knew that service had not been effected.  Therefore, Plaintiff fails to show a probability of prevailing on this cause of action against Defendant Kenosian & Miele.

 

Defendants’ request attorney’s fees and costs is granted in the amount of $9,160. The Court does not grant costs or fees relating to any Reply papers or court appearance, since neither of those costs were reasonably necessary for the Court’s ruling. The fees and costs are granted to Defendants Newport Capital Recovery Group and Kenosian & Miele jointly, without the Court’s apportioning the amount between them.

 

Plaintiff’s request for attorney’s fees is denied.

 

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, moving 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.

 

 



9:00

Line: 4

17-CIV-03086     REBECCA SNELL vs. PATRICIA FRANCO-BROWN, et al.

 

 

REBECCA SNELL                          PATRICK BALDWIN

PATRICIA FRANCO-BROWN                  TIMOTHY G. MCFARLIN

 

 

REBECCA SNELL’S HEARING ON DEMURRER TO DEFENDANT’S AND CROSS-COMPLAINTS PATRICIA FRANCO-BROWN AND RALPH DAVID BROWN’S CROSS-COMPLAINT

TENTATIVE RULING:

 

This motion is dropped from calendar as MOOT as an amended cross-complaint has been filed

 

 



9:00

Line: 5

17-CIV-03201     DUSTIN MORESCO, et al. vs. FRANCIA S. AQUINO, et al.

 

 

DUSTIN MORESCO                         EDWARD M. HIGGINBOTHAM

FRANCIA S. AQUINO                      RONALD S. GALASI

 

 

FRANCIS, EDGARDO AND FRANCHESCA AQUINO’S MOTION TO DISMISS COMPLAINT FOR DAMAGES

TENTATIVE RULING:

 

This motion is dropped from calendar at the request of the moving party.

 

 

 



9:00

Line: 6

17-civ-03368     DAVID A. DAILEY vs. JON PENAFORT, et al.

 

 

DAVID A. DAILEY                        Pro/PER

JON PENAFORT                           ALBERT L. BOASBERG

 

 

JON AND JENNY PENAFORT’S HEARING ON DEMURRER

TENTATIVE RULING:

 

Defendants JON AND JENNY PENAFORT have not complied with Code Civ. Proc. Sec. 430.41(a).  The statute provides that before filing a demurrer, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.

    

The hearing on the demurrer is therefore continued to Friday, November 17, 2017 at 9:00 a.m. in the Law and Motion Department so that the parties may meet and confer.  The demurring party is required to file, no later than five days prior to the new hearing date, a Code-compliant declaration stating either: (1) the parties have met and conferred in person or by telephone and (a) the parties have resolved the objections raised in the demurrer, which shall be taken off calendar or (b) the parties did not reach an agreement resolving the objections raised in the demurrer; or (2) the party who filed the pleading subject to demurrer failed to respond to the meet and confer request or otherwise failed to meet and confer in good faith.  If the demurring party fails to file and serve the declaration demonstrating compliance with the requirements of Section 430.31, the demurrer will be stricken as procedurally improper. 

 

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: 7

17-UDL-00659     DEUTSCHE BANK NATIONAL TRUST COMPANY vs. CATHERINE

                     CHAVEZ, et al.

 

 

CATHERINE CHAVEZ                       PRO/PER

DEUTSCHE BANK NATIONAL TRUST COMPANY    KAYO MANSON-TOMPKINS

HARRY MANUEL                           TIMOTHY MCCANDLESS

 

HARRY MANUEL’S DEMURRER TO COMPLAINT FOR UNLAWFUL DETAINER

TENTATIVE RULING:

 

Defendant HARRY MANUEL’s Demurrer to Complaint is OVERRULED.  Defendant shall file and serve an answer to the complaint on or before October 27, 2017.

 

A demurrer tests the legal sufficiency of a pleading and raises only issues of law – not of fact – regarding the form or content of the pleading under attack.  Code Civ. Proc. § 589; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.  Defendant’s demurrer asks the Court to consider evidence extrinsic to the Complaint, which on its face sufficiently sets forth a cause of action for unlawful detainer.  The demurrer is therefore overruled

 

A cause of action for possession pursuant to Code of Civil Procedure § 1161a(b)(3) requires the following factual elements:

 

1.   A procedurally valid foreclosure sale with title perfected in the plaintiff;

2.   Service of an appropriate Notice to Vacate property; and

3.   Continued occupancy of the property by a defendant after expiration of

that notice.

 

All of these elements are pled in Plaintiff’s Complaint.  Defendant asks the Court to look beyond the allegations of the Complaint to determine that the Trustee’s Sale was improperly conducted due to Defendant having filed a bankruptcy petition several hours earlier.  However, the Complaint alleges that the Trustee’s Sale occurred “on September 29, 2016, at the time and place noticed for said sale.”  (Complaint ¶ 8.)  Defendant introduces no evidence that the sale actually occurred at 1:00 p.m., after he filed his bankruptcy petition at 11:48 a.m.  Thus, it is unclear that a bankruptcy stay was in effect at the time the Trustee’s Sale was conducted.

 

Moreover, as Plaintiff argues, consideration of Defendant’s bankruptcy petition would also require the Court to look into Defendant’s prior bankruptcy filings to determine whether a stay was in effect.  11 U.S.C. 362(c)(4)(A)(i) provides that an automatic stay does not go into effect if the debtor has had two or more prior bankruptcy cases previously dismissed in the preceding year.  This would take the Court into an improper weighing of evidence which lies outside the scope of a demurrer. 

 

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

CIV521227     CARROLL CUSTOM HOMES VS. 138 ALMENDRAL LLC ET AL.

 

 

CARROLL CUSTOM HOMES INC.              RICHARD M. KELLY

138 ALMENDRAL LLC                      E. DAVID MARKS

 

 

HARRISON’S HEATING AND AIR CONDITIONING, INC.’S MOTION FOR DETERMINATION OF GOOD FAITH SETTLEMENT

TENTATIVE RULING:

 

Cross-Defendant HARRISON’S HEATING & AIR CONDITIONING, INC.’s unopposed Motion for Determination of Good Faith Settlement is GRANTED.  Applying the factors enumerated in Tech-Bilt v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, the Court is satisfied that the settlement reached between Cross-Defendant HARRISON’S; Plaintiff CARROLL CUSTOM HOMES, INC.; and Defendants 138 ALMENDRAL, LLC; RANDOLPH F. LAMB and LISA LAMB is not “so far out of the ballpark” as to make the settlement unreasonable.  Id. at 499-500; Code Civ. Proc. § 877.6.

 

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: 9 - 12

CIV522693     J.B.B. INVESTMENT, ET AL. VS. R. THOMAS FAIR, ET AL.

 

 

J.B.B INVESTMENT PARTNERS LTD.          ROBERT E. CAREY

R. THOMAS FAIR                         PATRICK BALDWIN

 

 

9. WRIT OF ATTACHMENT AS TO R. THOMAS FAIR

TENTATIVE RULING:

 

Defendants R. Thomas Fair et. al.’s Request for Judicial Notice as to Exhibits A-G, all of which are documents in the Court’s file, is GRANTED.  Evid. Code Sect. 452(d).

 

Plaintiffs J.B.B. Investment Partners Ltd.’s and Silvester Rabic’s Motion for Right to Attach Order and Writ of Attachment, as to each of Defendants R. Thomas Fair, Bronco RE Corporation, BRE Boulevard LLC, and BRE Cameron Creek LLC, is GRANTED-IN-PART and DENIED-IN-PART.  Code Civ. Proc. Sect. 483.010 et. seq. 

 

With respect to the Eighth Cause of Action in Plaintiff’s First Amended Complaint, filed April 20, 2015, in which Plaintiffs allege breach of a purported July 5, 2013 settlement agreement, the Court finds that Plaintiffs’ request satisfies the requirements of CCP Sect. 483.010(a), namely, (1) the claim upon which the attachment is based is one upon which an attachment may be issued, (2) (without deciding the ultimately merits of the claim), Plaintiffs have established the probable validity of the claim, (3) the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based, and (4) the amount to be secured is greater than zero.  Code Civ. Proc. Sect. 483.090(a).  Defendants have not claimed any exemption(s).  For purposes of this motion only, the Court finds it is more likely than not (Code Civ. Proc. Sect. 481.190) that Plaintiffs, whether by dispositive motion or by trial, will prove the elements of their claim for breach of the purported 2013 settlement agreement.   

 

Although Defendants have deposited roughly $104,000 with the Court and have secured a bond for roughly $246,000, totaling about $350,000, if Plaintiffs prevail on their breach of contract claim, the resulting Judgment will likely exceed $350,000.  Plaintiffs’ motion is GRANTED in the amount of $118,989, which consists of the following: 

·         $116,219 in contractual interest, as set forth in Plaintiffs’ counsel’s (Mr. Russo’s) July 4, 2013 email to Mr. Fair, calculated at “10% per annum” from July 1, 2014 through Oct. 25, 2017 (the hearing date on Plaintiffs’ Motion for Summary Adjudication), where 10% of $350,000 ($35,000) divided by 365 = daily interest of $95.89 (1,212 days x $95.89/day = $116,219).  See 8-16-17 Russo Decl., Ex. 2, Par. 5); see also Civ. Code Sect. 3287(a) (Plaintiff generally is entitled to recover interest on a liquidated contract claim); In re Ryan (N.D. Ca. 2007) 369 B.R. 536, 548-549 (it is proper to include prejudgment interest in calculation of total indebtedness to plaintiff); Code Civ. Proc. Sect. 483.015(a)(1); Code Civ. Proc. Sect. 697.010 and Comment thereto (attachment lien generally is for amount required to satisfy money judgment); 8-17-17 Decl. of C. Sargent, Parag. 42 (calculating interest owed).  The Court declines to include future interest through 2019, as such interest has not accrued and is speculative;

Defendants argue interest is not authorized by statute, and thus Plaintiffs cannot secure interest via a Writ of Attachment.  Defendants are incorrect.  The Rutter Group (Enforcement of Judgments), states:  [4:65] Accrual date: Plaintiff generally is entitled to recover interest on a liquidated contract claim from the date the claim arose through the date of judgment. [Civ.C. § 3287(a); see ¶ 3:304 ff.] This may be included as part of defendant's indebtedness claimed by plaintiff. [See In re Ryan (ND CA 2007) 369 BR 536, 548-549—proper to include prejudgment and post-judgment interest in calculation of total indebtedness to plaintiff; CCP § 483.015(a)(1); see also CCP § 697.010 and Comment thereto—attachment lien generally is for amount required to satisfy money judgment].

 

·         $5,000 in estimated costs (Code Civ. Proc. Sect. 482.110);

·         (minus $2,230) Plaintiffs’ have requested a reduction in the amount of the attachment by $2,230 to account for an unpaid cost award issued in Defendants’ favor (see Plaintiffs’ Sept. 21, 2017 Application at 15).

·         Total:  $118,989.

The Court DENIES the motion with respect to claimed attorney’s fees and costs relating to Plaintiffs’ anti-SLAPP motion, and with respect to attorney’s fees Plaintiffs incurred in defending Defendants’ motion(s) to compel arbitration (including fees incurred on appeal).  The anti-SLAPP motion was directed to Defendants’ Cross-Complaint—not Plaintiffs’ 4-20-15 First Amended Complaint.  With respect to fees incurred in litigating the arbitration issue, Plaintiffs claim fees based on an arbitration clause in the LLC Operating Agreement(s).  Because these claimed attorney’s fees do not arise from the contract Plaintiffs alleged was breached (i.e., the purported settlement agreement), the Court declines to include such claimed fees in the amount of attachment.  Further, as Defendants note, the Court previously rejected Plaintiffs’ reciprocity argument under Civ. Code 1717, on grounds that the arbitration provision in the LLC Operating Agreement(s) refers to fees incurred in arbitration, not litigation.  Thus, at least on its face, and without deciding the issue, the LLC Operation Agreement’s fee provision does not appear to apply to fees incurred in litigation.   

This Order is expressly contingent on Plaintiffs first filing an undertaking in the amount of $10,000 (Code Civ. Proc. Sect. 484.090; 489.210; 489.220).  No Writ of Attachment shall issue unless and until Plaintiffs file the required undertaking.

 

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, Plaintiffs shall submit proposed Order(s) (see Judicial Counsel Form AT-120) consistent with this Order.  The proposed order is to be submitted directly to Judge Richard H. DuBois, Department 16.

 

 

10. WRIT OF ATTACHMENT AS TO BRE CAMERON CREEK LLC

TENTATIVE RULING:

 

The tentative ruling as to line 9 above is incorporated herein.

 

 

11. WRIT OF ATTACHMENT AS TO BRE BOULEVARD LLC

TENTATIVE RULING:

 

The tentative ruling as to line 9 above is incorporated herein.

 

 

 

12. WRIT OF ATTACHMENT AS TO BRONCO RE CORPORATION

TENTATIVE RULING:

 

The tentative ruling as to line 9 above is incorporated herein.

 

 

 



9:00

Line: 13

CIV533509     ANDRE OSIPOV VS. CAPITAL ONE, n.a.

 

 

ANDRE OSIPOV                           CHARLES T. MARSHALL

CAPITAL ONE, N.A.                      LASZLO LADI

 

 

CAPITAL ONE, N.A.’S MOTION TO EXPUNGE PLAINTIFF ANDRE OSIPOV’S NOTICE OF PENDENCY OF ACTION AND FOR AN AWARD OF ATTORNEY FEES IN FAVOR OF DEFENDANT

TENTATIVE RULING:

 

This motion is dropped from calendar as MOOT at the request of the moving party as the Notice of Pendency of Action has been withdrawn.

 

 



9:00

Line: 14

CIV534203     JONATHAN MCDOUGALL VS. MANUEL SEDILLO, ET AL.

 

 

JANE DOE #1                            TODD P. EMANUEL

COUNTY OF SAN MATEO                    DAVID A. LEVY

 

 

COUNTY OF SAN MATEO’S MOTION FOR SUMMARY JUDGMENT

TENTATIVE RULING:

 

The Motion of Defendants County of San Mateo (“County”) and Shalinda Roan (“Roan”) (also collectively “Defendants”) for Summary Judgment to the Third Amended Complaint of Plaintiff Jane Doe #2 (“Plaintiff”), is CONTINUED to 9:00 a.m. on December 27, 2017 in the Law and Motion Department. 

 

Plaintiff has established that facts essential to justify opposition may exist, but for reasons stated, cannot be presented at this time.  (See C.C.P. § 437c(h).)  Specifically, this continuance is to allow Plaintiff to obtain discovery as to: (1) evidence that mandated reporters employed by the County failed to report their knowledge or reasonable suspicion of Defendant Manuel Sedillo-Messer’s abuse of his minor victims (this issue is currently awaiting a Juvenile Court Order allowing certain discovery), and (2) the drop file of Ketchen pertaining to his supervision of Sedillo-Messer, for which Plaintiff indicates she has issued a subpoena (the whereabouts of the drop file was just discovered during a deposition on September 14, 2017).

 

Plaintiff is to file and serve any supplemental opposition by December 13, 2017. 

 

Defendants may file and serve any supplemental reply by December 20, 2017.

 

Any supplemental memorandum of points and authorities by Plaintiff or Defendants is limited to no more than eight pages.

 

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: 15

CIV536294     ANDY SABERI VS. LES STANFORD, ET AL.

 

 

ANDY SABERI                            JAMES M. DOMBROSKI

LES STANFORD CHEVROLET CADILLAC, INC.   DAVID ROBERT SIDRAN

BJ INTERSTATE AUTO TRANSPORTERS         JAMES ATTRIDGE

 

AUTO TRANSPORTERS, INC.’S MOTION FOR JUDGMENT ON THE PLEADINGS

TENTATIVE RULING:

 

Defendant BJ INTERSTATE AUTO TRANSPORTERS, INC.’s Motion for Judgment on the Pleadings is DENIED pursuant to Code Civ. Proc. § 438. 

 

A motion for judgment on the pleadings performs the same function as a general demurrer.  Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.  Thus, when considering a motion for judgment on the pleadings, all facts alleged in the complaint are deemed admitted.  Lance Camper Manufacturing Corp. v. Republic Indemnity Co. (1996) 44 Cal.App.4th 194, 198. 

 

Defendant does not present the Court with judicially noticeable matters to contradict the allegations of Plaintiff’s First Amended Complaint.  The Request for Judicial Notice is DENIED as to Exhibits 1, 5, and 6.  Judicial notice is GRANTED as to Exhibit 4 in its entirety; as well as to Exhibits 2 and 3, but only to the extent that these documents were filed with the Court, and not as to the truth of any matters stated therein.  Evid. Code §§ 451, 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.

 


 

 

 

 

 


POSTED:  3:00 PM

 

© 2017 Superior Court of San Mateo County