1. Art and Diseño

SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 3, Honorable William Elfving Presiding
Mark Rosales, Courtroom Clerk
Jeanie Alma, Court Reporter
191 North First Street, San Jose, CA 95113
Telephone: 408. 882.2130
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW AND MOTION TENTATIVE RULINGS
DATE: FEBRUARY 3, 2015 TIME: 9 A.M.
PREVAILING PARTY SHALL PREPARE THE ORDER
(SEE RULE OF COURT 3.1312)
LINE #
CASE #
CASE TITLE
RULING
LINE 1
112CV238232 Harley-Davidson Credit
Corp v. D. Ramos
LINE 2
113CV254616 Inspried Senior Living
APPEARANCE REQUIRED
Options-South Bay Inc. v.
J. McFarland
LINE 3
113CV254800 MSC Industrial Supply Co. APPEARANCE REQUIRED
v. Semifab, Inc.
LINE 4
114CV265928 Kaeng Raeng Inc. v.
Multivitamin Direct, Inc.
SEE TENTATIVE RULING BELOW
LINE 5
114CV269843 U. Quinto v. JPMorgan
Chase Bank, et al.
SEE TENTATIVE RULING BELOW
LINE 6
113CV239254 N. Ghaderiyan v.
SEE TENTATIVE RULING BELOW
O’Connor Hospital, et al.
LINE 7
112CV235257 J. Doe v. Evergreen
Elementary School
District, et al.
APPEARANCE REQUIRED
LINE 8
113CV245676 G. Medrano v. Buca Di
Beppo Italian Restaurant
SEE TENTATIVE RULING BELOW
LINE 9
113CV254538 M. Hardiman, et al. v. D.
Nelson, et al.
APPEARANCE REQUIRED
LINE 10 114CV274191 ENGS Commercial
Finance Co. v. S. Singh
APPEARANCE REQUIRED
OFF CALENDAR
LINE 11 104CV015930 Progressive West
APPEARANCE REQUIRED
Insurance Company v. C.
Souza
LINE 12 113CV248356 Discover Bank v. S. Rad- APPEARANCE REQUIRED
Garcia
LINE 13 112CV233568 V. Munoz v. Lehigh
Southwest Cement Co.
CONTINUED to June 25, 2015 at 9:00 a.m.
in Department 21.
LINE 14 113CV252142 Bridge Bank, National
Association v. G.
Ballelos, et al.
OFF CALENDAR
SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 3, Honorable William Elfving Presiding
Mark Rosales, Courtroom Clerk
Jeanie Alma, Court Reporter
191 North First Street, San Jose, CA 95113
Telephone: 408. 882.2130
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW AND MOTION TENTATIVE RULINGS
LINE 15 113CV255761 Green Foods, LLC v.
REASSIGNED TO DEPARTMENT 21
Peacock India Restaurant,
et al.
LINE 16 114CV258594 K. Singh v. Dhaliwal Law REASSIGNED TO DEPARTMENT 21
Group, Inc., et al.
LINE 17 114CV267879 M. Uharriet, et al. v.
REASSIGNED TO DEPARTMENT 21
Yamaoka Associates, Inc.
LINE 18 114CV268647 CSAA Insurance
Exchange v. Leviton
Manufacturing Co, Inc.
OFF CALENDAR
LINE 19 114CV272008 C. Kestler, et al. v. Select REASSIGNED TO DEPARTMENT 21
Portfolio Servicing, Inc., et
al.
LINE 20 114CV273327 U. Quinto v. JP Morgan
Chase Bank
LINE 21
LINE 22
LINE 23
LINE 24
LINE 25
LINE 26
LINE 27
LINE 28
LINE 29
LINE 30
OFF CALENDAR
Calendar line 4
Case Name: Kaeng Raeng Inc. v. Multivitamin Direct Inc., et al.
Case No.:
1-14-CV-265928
In the second amended complaint (“SAC”), plaintiff Kaeng Raeng Inc. (“Plaintiff”)
alleges that defendants Paul Huang, Viola Lee, and Alisia Cheuk (“the Managers”) are the
officers/directors/managers of defendant Multivitamin Direct Inc. (“MDI”) and its subsidiary,
defendant Raw Green Organics (“RGO”), and that RGO, MDI, and the Managers (collectively,
“Defendants”) acted as agents, alter egos, and co-conspirators of one another. Plaintiff asserts
claims for: (1) breach of non-disclosure agreement against MDI; (2) breach of a modified
manufacturing contact against MDI; (3) breach of fiduciary duty of loyalty against MDI and
the Managers (collectively, “MDI Parties”); (4) intentional interference with prospective
economic advantage against Defendants; (5) negligent interference with prospective economic
advantage against Defendants; (6) fraud and deceit against Defendants; and (7) unfair
competition in violation of Business and Professions Code section 17200 (“the UCL”) against
Defendants. Defendants demur to the third through seventh causes of action for failure to state
a claim. (See Code Civ. Proc., § 430.10, subd. (e).)
Defendants first argue that these claims are preempted by the California Uniform Trade
Secrets Act (“CUTSA”). A demurrer should be sustained where it is “clear on the face of the
complaint” that a claim depends on an alleged misappropriation of trade secrets, but CUTSA
“does not displace noncontract claims that, although related to a trade secret misappropriation,
are independent and based on facts distinct from the facts that support the misappropriation
claim.” (Civ. Code, § 3426.7; Silvaco Data Systems v. Intel Corp. (2010) 184 Cal.App.4th 210,
240; Angelica Textile Services, Inc. v. Park (2013) 220 Cal.App.4th 495, 499, 506.) In addition
to alleging a misappropriation of proprietary information, Plaintiff alleges the following:
(1) Defendants manufactured and sold a competing product while delaying the manufacture of
Plaintiff’s product; (2) MDI Parties falsely misrepresented that MDI would not compete
against Plaintiff and that RGO was merely its client; (3) Defendants concealed the fact that
MDI Parties controlled RGO and that RGO made and sold competing products; and
(4) Defendants prevented Plaintiff from fulfilling product orders for third parties. (SAC, ¶¶ 4448, 52-58, 62-67, 70-76, 79-85, & 88-89.) While the claims at issue may in some respects be
related to the alleged misappropriation, they are independent and based on distinct facts.
CUTSA therefore does not preempt these claims.
Next, Defendants assert that Plaintiff has not stated a claim for breach of duty of loyalty
because it has not adequately alleged a fiduciary relationship. This argument lacks merit. In the
business context, a contract for services may give rise to a fiduciary relationship where the
principal controls the agents’ actions and relies on the agent to perform. (Michelson v. Hamada
(1994) 29 Cal.App.4th 1566, 1579-1581.) Plaintiff sufficiently states facts supporting the
existence of a fiduciary relationship by alleging that MDI Parties—as MDI’s agents and coconspirators—voluntarily accepted/assumed a fiduciary duty of loyalty by agreeing to
manufacture Plaintiff’s products. (SAC, ¶¶ 8-10 & 51-56.)
Defendants also contend that Plaintiff has not stated claims based on interference with
economic relations because it has not alleged a separate wrongful act. This assertion is not
well-taken. To state a claim for intentional or negligent interference with an economic
advantage, the plaintiff must allege a wrongful act besides the interference itself. (Della Penna
v. Toyota Motor Sales, U.S.A. (1995) 11 Cal.4th 376, 393.) Plaintiff alleges that Defendants
engaged in wrongful conduct by secretly forming RGO to compete with Plaintiff and
fraudulently representing that RGO was simply MDI’s client. (SAC, ¶¶ 65 & 74.) Thus,
Plaintiff has alleged a separate wrongful act.
Turning to the fraud claim, Defendants cite Business and Professions Code section
16600 and insist that since the claim is based on their allegedly false statement that they
did/would not compete against Plaintiff, the statements are unenforceable restrictions on trade
that cannot support any cause of action. Defendants’ reliance on Business and Professions
Code section 16600 is misplaced, as that provision states that contracts restraining trade are
void, but does not suggest that fraud claims are unenforceable when based on one party’s
allegedly false statement that it would not compete against another party. (See Bus. & Prof.
Code, § 16600 [“every contract by which anyone is restrained from engaging in a lawful
profession, trade, or business of any kind is to that extent void”].) Furthermore, contrary to
Defendants’ assertion, Plaintiff specifically alleges fraud based on the
concealment/nondisclosure of material facts against each of the defendants. (SAC, ¶ 80; see
also Lazar v. Super. Ct. (1996) 12 Cal.4th 631, 645 [fraud includes concealment/nondisclosure
and requires specific allegations].) Plaintiff has therefore sufficiently alleged a fraud claim.
Lastly, Defendants argue that Plaintiff has not sufficiently alleged facts in support of
the UCL claim. A UCL claim will survive demurrer where the plaintiff states sufficient facts to
support any other cause of action. (See Krantz v. BT Visual Images, LLC (2001) 89
Cal.App.4th 164, 178 [the viability of a UCL claim stands or falls with the antecedent
substantive causes of action].) Therefore, by sufficiently alleging other causes of action,
Plaintiff has adequately stated a UCL claim.
Accordingly, Defendants’ demurrer is OVERRULED.
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Calendar line 5
Case Name: Quinto v. JP Morgan Chase Bank, et al.
Case No.: 1-14-CV-269843
Defendants JP Morgan Chase Bank, N.A. (“JP Morgan”) and California Reconveyance
Company (“CRC”) demur to the first amended complaint (“FAC”) filed by plaintiff Ursula Q.
Quinto (“Plaintiff”). Defendants U.S. Bank N.A. (“US Bank”), Select Portfolio Servicing, Inc.
(“SPS”) and Peter Carey Realty (erroneously sued separately as “Peter Carey” and “Realty
World Peter Carey Company”) also demur to the FAC.
As a preliminary matter, the Court notes that Plaintiff’s opposing memorandums are
untimely. Papers opposing a motion must be filed and served at least nine court days before
the hearing. (Code Civ. Proc., § 1005, subd. (b).) Accordingly, with a hearing date of
February 3, 2015, Plaintiff’s oppositions were due on January 21. However, they were not
filed until January 23rd. Ultimately, the defendants do not appear to have been prejudiced by
the late filings and the Court therefore considered the substance of Plaintiff’s opposing papers
in evaluating the merits of the motions presently before the Court.
JP Morgan and CRC’s request for judicial notice of various recorded documents, court
records, and the Purchase and Assumption Agreement is GRANTED. (Evid. Code, § 452,
subds. (d) and (h); see Alfaro v. Community Housing Improvement System & Planning Assn.,
Inc. (2009) 171 Cal.App.4th 1356, 1382; Evans v. California Trailer Court, Inc. (1994) 28
Cal.App.4th 540, 549; Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264265 [“a court may take judicial notice of the fact of a document’s recordation, the date the
document was recorded and executed, the parties to the transaction reflected in the recorded
document, and the document’s legally operative language … [and, f]rom this, the court may
deduce and rely upon the legal effect of the recorded document”].)
US Bank, SPS and Peter Carey Realty’s request for judicial notice is GRANTED.
(Evid. Code, § 452, subd. (d) and (h); Alfaro, supra, 171 Cal.App.4th at 1382; Fontenot, supra,
198 Cal.App.4th at 264-265.)
On January 9, 2007, Plaintiff purchased the property at 1367 King Road, San Jose (the
“Subject Property”) with a $545,000 loan from Washington Mutual Bank (“WaMu”), secured
by a deed of trust, with CRC serving as trustee. (JP Morgan and CRC’s Request for Judicial
Notice (“RJN”), Exhibit 1.) On July 18, 2008, WaMu assigned the deed of trust and all
beneficial interest thereunder to LaSalle Bank, N.A. (“LaSalle Bank”) as trustee for WaMu
Mortgage Pass-Through Certificates Series 2007-HY3 (“WaMu Trust”). (RJN, Exhibit 3.)
That same day, LaSalle Bank as trustee for the WaMu Trust substituted Quality Loan as
trustee, who then promptly issued and recorded on July 21, 2008 a notice of default and
election to sell under the deed of trust. (RJN, Exhibit 4; US Bank, et al.’s’ RJN, Exhibit 2.)
The notice of defaulted indicated that Plaintiff was $12,125.95 in arrears on her loan. (Id.)
In September 2008, WaMu was closed by the federal Office of Thrift Supervision and
the Federal Deposit Insurance Corporation (“FDIC”) was appointed as receiver. (RJN, Exhibit
5.) On September 25, 2008, the FDIC allocated WaMu’s assets and liabilities in accordance
with the purchase and assumption agreement entered into between the FDIC and JP Morgan.
(Id.) A notice of trustee’s sale was recorded by Quality Loan on October 23, 2008, and sale
was set for November 12, 2008. (Id., Exhibit 6.) Plaintiff, however, subsequently entered into
a loan modification agreement with JP Morgan, the new beneficiary, on December 1, 2008,
which was recorded on May 18, 2009. (Id., Exhibit 8.) Thus, the foreclosure sale never took
place, and a notice of rescission of the first notice of default was recorded on April 8, 2009.
(Id., Exhibit 7.)
The loan modification agreement provided that the loan would continue to be serviced
under the name “Washington Mutual,” with a modified principal balance of $578,690.59 to be
reamortized over 458 months. (RJN, Exhibit 8.) The agreement also included a clause
waiving any claims the borrower might have had against JP Morgan related to the loan
origination or any foreclosure or power of sale proceedings conducted prior to the date of the
agreement. (Id.) Plaintiff again defaulted under the terms of the modified loan, and a second
notice of default and election to sell under deed of trust, indicating an arrearage of $10,701.91,
was recorded on June 18, 2009 by CRC as trustee. (Id., Exhibit 10.) A notice of trustee’s sale
was recorded by CRC on September 23, 2009, setting a public sale on October 13, 2009, and
listing an unpaid balance of $614,896.50. (Id., Exhibit 11.)
On October 28, 2010, Plaintiff, proceeding in pro per, filed a complaint in this Court,
asserting twenty-four claims against JP Morgan and CRC. (RJN, Exhibit 12.) Plaintiff alleged
violations of the Truth in Lending Act (“TILA”), the Real Estate Settlement Procedures Act,
and related state-law claims, including wrongful foreclosure under Civil Code section 2924, et
seq. (Id.) The defendants removed the case to federal court on December 22, 2010 based on
federal question jurisdiction, and moved to dismiss. (Id., Exhibits 13 and 14.) The motion was
granted but Plaintiff was given leave to amend. (Id., Exhibit 15.) However, no amended
complaint was ever filed and on March 25, 2011, the district court dismissed the case for
failure to prosecute and closed the file. (Id.) Plaintiff nevertheless attempted to file a first
amended complaint on April 8, 2011; in response, the district court issued an order noting that
because the case was closed, Plaintiff’s purported first amended complaint had no legal effect,
and her only recourse was to file a motion for relief under Federal Rules of Civil Procedure,
rule 60(b).
Plaintiff did not file a Rule 60(b) motion, and instead filed a copy of the rejected first
amended complaint as a new action in this Court on May 3, 2011. (RJN, Exhibit 16.) This
pleading alleged the same twenty-four claims against JP Morgan and CRC as the dismissed
federal action and included two new claims, one for wrongful foreclosure under Civil Code
section 2932.5 and the other for wrongful foreclosure under Civil Code section 2934a. (Id.)
On June 14, 2011, the defendants removed the case on the basis of federal question
jurisdiction, and on August 17, 2011, filed a motion to dismiss the complaint. On November
30, 2011, the defendants’ motion to dismiss was granted with prejudice. (RJN, Exhibit 18.)
A notice of trustee’s sale was recorded on August 5 and November 4, 2013 and January
28, 2014, and a trustee’s deed upon sale was recorded on February 21, 2014. (RJN, Exhibits
19-22.) All interest and title in the Subject Property is now vested in US Bank. (Id.)
Plaintiff filed the instant action on August 22, 2014, and the FAC on November 12,
2014, asserting the following causes of action: (1) violation of Civil Code § 1572; (2) fraud; (3)
declaratory relief; (4) intentional misrepresentation; and (5) violation of Business &
Professions Code § 17200. Plaintiff alleges, among other things, that: WaMu engaged in
predatory lending practices by knowingly placing her in a loan that she could not afford; the
deed of trust and note were separated resulting in the inability of Plaintiff to ascertain who
owns her loan; WaMu has violated the Purchase and Assumption agreement by failing to
comply with its procedures bundling Plaintiff’s loan with other securities; the defendants have
failed to provide Plaintiff with a meaningful loan modification offer; and the defendants have
violated the California Homeowner Bill of Rights by foreclosing on the Subject Property while
Plaintiff was in the loan modification process.
On December 12, 2014, JP Morgan and CRC filed the instant demurrer to each of the
five causes of action asserted in the FAC on the ground of failure to state facts sufficient to
constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) On December 17, 2014,
US Bank, SPS and Peter Carey Realty filed their demurrer to Plaintiff’s five causes of action
on the same ground. (Id.)
JP Morgan and CRC’s Demurrer
As a threshold matter, the defendants argue that their demurrer should be sustained in
its entirety without leave to amend because Plaintiff is estopped from bringing the instant
action based on the doctrines of res judicata and collateral estoppel. “[R]es judicata describes
the preclusive effect of a final judgment on the merits. Res judicata, or claim preclusion,
prevents relitigation of the same cause of action in a second suit between the same parties or
parties in privity with them.” (Planning & Conservation League v. Castaic Lake Water
Agency (2009) 180 Cal.App.4th 210, 226.) Collateral estoppel, which is closely related and
often included within the term “res judicata,” prohibits the relitigation in the second action of
issues which were actually litigated and determined in the first. (Clark v. Lesher (1956) 46
Cal.2d 874, 880.)
“Res judicata applies if (1) the decision in the prior proceeding is final and on the
merits; (2) the present proceeding is on the same cause of action as the prior proceeding; and
(3) the parties in the present proceeding or parties in privity with them were parties to the prior
proceeding.” (Busick v. Workmen’s Comp. Appeals Bd. (1972) 7 Cal.3d 967, 974.) The
doctrine “bars the litigation not only of issues that were actually litigated but also issues that
could have been litigated.” (Id.) The elements of collateral estoppel are nearly identical,
barring the existence of similar issues rather than causes of action. (Procedures Dairy Deliv.
Co. v. Sentry Ins. Co. (1986) 41 Cal.3d 903, 910.) “Two proceedings are on the same cause of
action if they are based on the same ‘primary right.’ [Citation.] The plaintiff’s primary right is
to be free from a particular injury, regardless of the legal theory on which liability for the
injury is based.”
Viewing the FAC and Plaintiff’s claims in toto, the Court agrees with the defendants
that the instant action is an improper attempt by Plaintiff to relitigate matters previously
asserted and disposed of in the preceding federal actions. As with those lawsuits, Plaintiff’s
present action is based on alleged predatory lending conduct and fraud in the loan origination
process, as well as allegations of improper assignment of the deed of trust and failure to
comply with proper notice procedures in the foreclosure of the Subject Property. Further, JP
Morgan and CRC were named defendants in both federal lawsuits. 1 To the extent that there
1
The Court notes that even if res judicata did not apply to the instant action, Plaintiff’s claims, as currently
pleaded, nevertheless fail. To the extent that Plaintiff seeks to assert claims based on events which occurred in the
loan origination process, these claims fail because (1) the Purchase and Assumption Agreement expressly
disclaims imposition of liability on JP Morgan for such conduct and (2) they are barred by the statute of
limitations. Next, Plaintiff’s conclusory allegations of robo-signing cannot support a cause of action as such a
claim must contain actual factual allegations. (See, e.g., Cerecedes v. U.S. Bankcorp (C.D. Cal. 2011) 2011 WL
are additional allegations relating to loan modification, the California Homeowner Bill of
Rights, the splitting of the note and deed of trust and violation of the Purchase and Assumption
Agreement in the FAC that were not present in the preceding actions, no claims can be
maintained based on these allegations for several reasons, which are articulated below.
First, allegations relating to fraud in the loan documents, noncompliance with notice
requirements and the retention by WaMu of unearned hidden fees could have been brought in
the prior actions and are therefore precluded. (See Busick, supra, 7 Cal.3d 974 [stating that res
judicata “bars the litigation not only of issues that were actually litigated but also issues that
could have been litigated”].)
Second, Plaintiff lacks standing to bring any claim based on an allegedly unlawful
assignment or securitization of the note. (See Jenkins v. JP Morgan Chase Bank, N.A. (2013)
216 Cal.App.4th 497, 515 [“‘[b]ecause a promissory note is a negotiable instrument, a borrower
must anticipate it can and might be transferred to another creditor. As to plaintiff, an
assignment merely substituted one creditor for another, without changing her obligations under
the note.’ As an unrelated third party to the alleged securitization, and any other subsequent
transfers of the beneficial interest under the promissory note, [Plaintiff] lacks standing to
enforce any agreements, including the investment trust’s pooling and service agreement,
relating to such transactions. Furthermore, even if any subsequent transfers of the promissory
note were invalid, [Plaintiff] is not the victim of such invalid transfers because her obligations
under the note remained unchanged”]; see also Mendoza v. Chase Bank, N.A. (2014) 228
Cal.App.4th 1020, 1029 [“[c]ourts have rejected homeowners’ claims that securitization
changes the roles of the original parties”].)
Third, the “holder of the note” argument has been consistently and repeatedly rejected
by the courts. (See, e.g., Debrunner v. Deutsche Bank Nat. Trust Co. (2012) 204 Cal.App.4th
433, 440; see also McCain v. Bank of America, N.A. (E.D. Cal. 2011) 2010 U.S. Dist. LEXIS
113956, 3 [stating that the “holder of the note” assertion is “untenable because under the
California nonjudicial foreclosure statutes, the trustee or beneficiary is not required to a be a
holder in due course of the instrument”].)
Fourth, Plaintiff cannot maintain a claim under the Homeowner Bill of Rights (Civ.
Code §§ 2920.5-2924.20) for two reasons. First, judicially noticed materials establish that
Plaintiff was not only considered for but already granted a loan modification on the Subject
Property (RJN, Exhibit 8), and was not required to be offered another one. Civil Code section
2923.6, subdivision (g), states in pertinent part that “[i]n order to minimize the risk of
borrowers submitting multiple applications for first lien loan modifications for the purpose of
delay, the mortgage servicer shall not be obligated to evaluate applications from borrowers
who have already been evaluated or afforded a fair opportunity to be evaluated for a first tier
2711071.) Plaintiff also fails to plead fraud with the requisite specificity, as she does not allege the name of any
employee, their authority to speak, to whom they spoke, what they said or wrote, or when it was said or written.
(See Tarmann v. State Farm Mutual Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157 [stating the allegations
necessary to state a claim for fraud against a corporation].) Plaintiff also fails to plead facts establishing
detrimental reliance relative to the misrepresentations which are not time-barred. (Ach v. Finkelstein (1968) 264
Cal.App.2nd 667, 674 [stating elements of fraud].) Finally, none of the preceding causes of action state sufficient
facts to support an Unfair Competition Law claim (Bus. & Prof. Code, § 17200, et seq.) and Plaintiff fails to plead
the existence of an actual, present controversy necessary to support a claim for declaratory relief. (Code Civ.
Proc., § 1060.)
lien loan modification prior to January 1, 2013…” Second, Civil Code section 2924.15,
subdivision (a) clearly states that “[u]nless otherwise provided, paragraph (5) of Section 2924,
and Sections 2923.5, 2923.55, 2923.6, 2923.7, 2924.9, 2924.10, 2924.11 [cited in the
Complaint], and 2924.18 shall apply only to first lien mortgages or deeds of trust that are
secured by owner-occupied residential real property containing no more than four dwelling
units. For these purposes, ‘owner-occupied’ means that the property is the principal residence
of the borrower and is security for a loan made for personal, family or household purposes.”
Documents attached to Plaintiff’s original complaint, which the Court has taken judicial notice
of, establish that Plaintiff has consistently identified the subject property as investment
property rented to tenants and not as her principal residence.
Given the foregoing, Plaintiff fails to state any claim against JP Morgan and CRC for
violation of Civil Code section 1572, fraud, declaratory relief, intentional misrepresentation
and violation of Business and Professions Code section 17200. In her opposition, Plaintiff
merely repeats the allegations of the FAC and theories which have, as stated above, been
consistently and unequivocally rejected by the courts. Plaintiff does not address the
defendants’ res judicata argument, and thus impliedly concedes its merit. Consequently, JP
Morgan and CRC’s demurrer to the first, second, third, fourth and fifth causes of action on the
ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED
WITHOUT LEAVE TO AMEND.
US Bank, SPS and Peter Carey Realty’s Demurrer
As an initial matter, Plaintiff has failed to state any claim against Peter Carey Realty
which, per the allegations of the FAC, did not become involved with the Subject Property until
after the foreclosure was completed and the property sold at public auction. However, all of
Plaintiff’s claims are based on events that took place prior to that point, including the
origination and servicing of Plaintiff’s loan and the actual foreclosure process itself.
As the defendants articulate in their supporting memorandum, Plaintiff’s FAC
essentially wholly disregards the Court’s November ruling on the their demurrer to the original
complaint in continuing to allege claims and theories that were rejected as contrary to
California law, including improper securitization, fraud in the origination of the 2007 loan and
various violations of the California Homeowner Bill of Rights. Thus, having failed to amend
her allegations in any substantive way, her claims still fail for the reasons set forth below.
The defendants’ demurrer to the first (violation of Civil Code § 1572), second (fraud)
and fourth (intentional misrepresentation) causes of action on the ground of failure to state
facts sufficient to constitute a cause of action is SUSTAINED WITHOUT LEAVE TO
AMEND. All of these claims are for variations of fraud and thus require (1) a
misrepresentation (false representation, concealment or nondisclosure), (2) knowledge of
falsity, (3) intent to defraud/induce reliance, (4) justifiable reliance, and (5) resulting damage.
(Philipson & Simon v. Gulsvig (2007) 154 Cal.App.4th 347, 363.) It is well-settled that each of
the foregoing elements must be pleaded with specificity. (Committee on Children’s Television,
Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216-217.) Further, as articulated above, in
order to plead a claim for fraud against a corporate defendant, the plaintiff must allege “the
names of the persons who made the allegedly fraudulent representations, their authority to
speak, to whom they spoke, what they said or wrote, and when it was said or written.”
(Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157; see also Lazar v.
Superior Court (1996) 12 Cal.4th 631, 645.)
With the foregoing requirements in mind, all three causes of action still fail to state
sufficiently specific fraud claims against any of the defendants. Plaintiff simply repeats the
same general allegations of improper securitization, fraud in the origination of her loan,
predatory lending, and various violations of HBOR. As articulated in the prior order, these
allegations cannot support claims for fraud because: (1) Plaintiff does not have standing to
challenge the securitization of her loan; (2) the “produce the note” theory has repeatedly and
consistently been rejected by California courts; (3) Plaintiff waived any claims arising out of
the loan origination or loan modification she was granted in December 2008; and (4) Plaintiff’s
fraud claims are time-barred.
Plaintiff’s attempt to now plead that she was a resident of the Subject Property and
therefore it qualified for protections offered by HBOR is impermissible and the allegation is
disregarded, as it directly contradicts her admission in the complaint and judicially noticed
materials that establish that the Subject Property was an investment property rented to tenants
and not used as Plaintiff’s principal residence.
The defendants’ demurrer to the third cause of action (declaratory relief) on the ground
of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITHOUT
LEAVE TO AMEND. Plaintiff still fails to plead specific facts demonstrating the existence of
an actual, present controversy; her allegation that “[a]n actual controversy has arisen and now
exists between and among Plaintiff and Defendants and each of them as to the duties and
obligations of the respective parties with regard to the loan or the foreclosure” (FAC, ¶ 114) is
merely a conclusion and the allegations of faulty securitization and ownership rights upon
which the cause of action is predicated are untenable for the reasons previously discussed.
(See Code Civ. Proc., § 1060; see also City of Cotati v. Cashman (2002) 29 Cal.4th 69, 80.)
The defendants’ demurrer to the fifth cause of action (violation of Business &
Professions Code § 17200) on the ground of failure to state facts sufficient to constitute a cause
of action is SUSTAINED WITHOUT LEAVE TO AMEND. None of the preceding causes of
action state sufficient facts to support a claim on which a UCL claim can be based; in other
words, Plaintiff’s claim is predicated on non-actionable conduct.
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Calendar line 6
Case Name: Ghaderiyan v. O’Connor Hospital, et al.
Case No.: 1-13-CV-239254
Defendant O’Connor Hospital (“Defendant”) moves for summary judgment as to the
complaint filed by plaintiff Narges Ghaderiyan (“Plaintiff”).
California courts have incorporated the expert evidence requirement into their
standard for summary judgment in medical malpractice cases. When a
defendant moves for summary judgment and supports his motion with expert
declarations that his conduct fell within the community standard of care, he is
entitled to summary judgment unless the plaintiff comes forward with
conflicting expert evidence.
(Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984-985, quoting
Hutchison v. United States (9th Cir. 1988) 838 F.2d 390, 392.)
After full consideration of the evidence, separate statements and authorities submitted
by each party, the Court finds that Plaintiff has demonstrated the existence of a triable issue of
material fact with regard to whether the treatment provided by O’Connor nursing
personnel/employees to Fatemah Tajzadeh-Noughabi on January 2, 2012 fell below the
applicable standard of care and whether such conduct was a substantial factor in causing her
death. (See Declaration of Raquel Arlene D. Samson in Support of Plaintiff’s Opposition to
O’Connor’s Motion for Summary Judgment, ¶¶ 5-7.) Accordingly, O’Connor’s motion for
summary judgment is DENIED.
The Court did not consider any of the additional evidence filed by O’Connor with its
(untimely) reply papers that purportedly demonstrates the flaws in the declaration of Plaintiff’s
expert. “Where a remedy as drastic as summary judgment is involved, due process requires a
party to be fully advised of the issues to be addressed and be given adequate notice of what
facts it must rebut in order to prevail.” (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A.
(2002) 102 Cal.App.4th 308, 316.) Plaintiff has not been provided with an opportunity to
address the specific evidence and issues cited by O’Connor in its reply that were not discussed
in its opening brief.
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Calendar line 8
Case Name: Medrano v. Buca Di Beppo Italian Restaurant, et al.
Case No.: 1-13-CV-245676
Defendants Buca Restaurants 2, Inc. (“Buca Restaurants”), Equity Office Management,
LLC (“Equity”) and Stephen Velarde (“Velarde”) (collectively, “Defendants”) move for a
protective order prohibiting or postponing the deposition of Equity’s Person Most
Knowledgeable with Request for Production of Documents (“PMK Deposition”). Plaintiff
Gabriela Medrano moves to compel further responses to form interrogatories (“FI”) and special
interrogatories (“SI”) and to compel the depositions of Buca Restaurants, Equity and Velarde.
This is a trip and fall case. Plaintiff alleges that on June 2, 2011, she was walking in a
Buca Di Beppo restaurant when she encountered a dangerous condition which caused her to
fall suffer injury. (Complaint, ¶ 16.) Plaintiff’s complaint, which was filed on May 2, 2013,
asserts a single cause of action against Defendants, among others, for negligence.
I.
Defendants’ Motion for a Protective Order
Before, during, or after a deposition, any party or deponent may promptly move for a
protective order. (Code Civ. Proc., § 2025.420, subd. (a).) For good cause shown, the court
may make any order that justice requires to protect the party or deponent from unwarranted
annoyance, embarrassment, or oppression or undue burden and expense. (Id., § 2025.420,
subd. (b).) If the motion for a protective order is denied in whole or in part, the court may
order that the deponent provide or permit the discovery against which protection was sought on
those terms and conditions that are just. (Id., § 2025.420, subd. (c).)
The Court is not persuaded that it is unnecessary, as Defendants insist, for Plaintiff to
take Equity’s deposition because it did not control or possess the restaurant premises at the
time of her purported incident. As Plaintiff asserts in her opposition, even a lessor of
commercial property that is out of possession maintains various duties and responsibilities as
the landowner. (See, e.g., Mora v. Baker Commodoties, Inc. (1989) 210 Cal.App.3d 771, 781.)
Consequently, ascertaining Equity’s role, if any, in the events and circumstances which
allegedly led to Plaintiff’s injury is necessary and well within the permissible scope of
discovery. (Code Civ. Proc., § 2017.010 [“any party may obtain discovery regarding any
matter, not privileged, that is relevant to the subject matter involved … if the matter either is
itself admissible in evidence or appears reasonably calculated to lead to the discovery of
admissible evidence …”].)
Consequently, the Court is not persuaded that good cause exists to prohibit or postpone
Equity’s deposition, nor have Defendants demonstrated the need for an order compelling
Plaintiff to serve Equity with special interrogatories prior to any deposition of its PMK.
Accordingly, Defendants’ motion for a protective order is DENIED.
II.
Plaintiff’s Motion to Compel
Plaintiff moves to compel the following:
(1) the deposition of Stephen Velarde, telephonically, within 75 miles of his home in
Maryland;
(2) the deposition of Buca Restaurants pursuant to the November 5, 2014 deposition
notice;
(3) the deposition of Equity pursuant to the November 5, 2014 deposition notice;
(4) further responses from Velarde to FI, Set One, Nos. 2.5, 2.6, 2.11, 8.2, 8.3, 12.1,
12.3, 12.4, 13.1, 13.2 and 15.1, and SI, Set One, Nos. 3, 4, 5, 7 and 8; and
(5) further responses from Buca Restaurants to SI, Set Two, Nos. 16-22.
A. Depositions
As a threshold matter, Defendants’ insistence that Plaintiff’s motion to compel the
depositions is procedurally defective because the grounds for the motion are not set forth in the
notice and should therefore be denied is without merit. While it is generally true that a notice
of motion must state exactly what relief is being sought and why, i.e., the grounds (see Code
Civ. Proc., § 1010; Cal. Rules of Court, rule 3.1110(a)), relief may be granted on grounds
appearing anywhere in the accompanying declarations and points and authorities, provided the
notice indicates as much. (See Carrasco v. Craft (1985) 164 Cal.App.3d 796, 808.) Plaintiff
sufficiently articulates the basis for her motion in the supporting papers.
Under Code of Civil Procedure section 2025.450, a party may move for an order
compelling a deponent’s attendance and production of documents if the deponent fails to
appear or proceed with his examination after a deposition notice has been served. 9Code Civ.
Proc., § 2025.450, subd. (a).) Though it appears to be the case, as Defendants assert, that they
have not outright refused to produce Velarde and Buca Restaurants (its PMK) for deposition, a
review of the meet and confer correspondence exchanged between the parties over the last six
months or so indicates some difficulty in arriving at mutually acceptable dates for the
examinations to take place. Plaintiff finally elected to unilaterally set dates for the depositions
only after attempts to obtain acceptable dates from Defendants proved to be unsuccessful.
Given this difficulty, the Court GRANTS Plaintiff’s request to compel Velarde and Buca
Restaurants’ attendance at deposition. Given his residence outside of the state of California,
Velarde’s deposition may be taken telephonically. (Code Civ. Proc., § 2025.310, subd. (a).)
With respect to Equity, based on Defendants’ opposition to the motion to compel and
their filing of the protective order discussed above, Defendants have made it clear that Equity
has no intention of appearing for the PMK Deposition. However, the Court finds that Plaintiff
is entitled to depose Equity’s PMK, having demonstrated that: she served Defendants with a
deposition notice on November 5, 2014; Equity did not appear on the date noticed to be
deposed; and Plaintiff’s counsel subsequently contacted Defendants to discuss the examination
having not taken place. This is all that is required of the moving party on a motion to compel
attendance at a deposition. (Code Civ. Proc., § 2025.450, subd. (b)(2); see also Leko v.
Cornerstone Bldg. Inspection Service (2001) 86 Cal.App.4th 1109, 1124.) Defendants have not
established any reason why Plaintiff should not be permitted to examine Equity’s PMK.
Accordingly, Plaintiff’s request that Equity be ordered to produce their PMK for deposition is
GRANTED.
While the Court agrees that Plaintiff is entitled to take the depositions of Buca
Restaurants, Velarde and Equity, it agrees with Defendants that Plaintiff has not satisfied the
meet and confer requirement with respect to the portion of her motion which requests that the
Court compel production in accordance with the deposition notices. Where a party moves to
compel the production of documents described in a deposition notice, the motion must be
accompanied by a meet and confer declaration “showing a reasonable and good faith attempt at
an informal resolution of each issue presented by the motion.” (Code Civ. Proc., §§ 2016.040
and 2025.450, subd. (b)(2) (emphasis added).) There is no indication that Plaintiff made any
effort to specifically address Defendants’ objections to the 27 requests for production
contained in the deposition notices served on Equity and Buca Restaurants.
Given the relatively straightforward nature of this case, the Court believes that further
meet and confer between the parties can lead to the informal resolution of many of Defendants’
objections to the aforementioned production requests. Consequently, Plaintiff’s motion to
compel is CONTINUED with respect to the requests for production contained in the deposition
notices to Buca Restaurants and Equity for 30 days to March 3, 2015, and the parties are
ordered to meet and confer and make a good faith effort to resolve their discovery dispute.
In addition, the parties are ordered to submit supplemental briefing that identifies any
issues that they were unable to resolve through meet and confer and provides argument as to
their respective positions regarding the production requests. Plaintiff’s supplemental brief
shall be filed on February 20 and shall not exceed 7 pages in length. Defendants’ supplemental
brief shall be filed on February 24 and shall not exceed 7 pages in length.
B. Interrogatories
Contrary to the portion of Plaintiff’s motion seeking to compel production of the items
requested in the deposition notices, the Court finds that Plaintiff has satisfied the meet and
confer requirement with respect to the interrogatories which are the subject of her motion.
Accordingly, the Court has considered the substantive merits of Plaintiff’s motion and
Defendants’ objections to these requests, and disposes of the motion as articulated below.
1. From Velarde
The Court finds that further responses are warranted to FI, Set One, Nos. 2.5, 2.6, 2.11,
4.1, 8.2, 12.1, 12.3, 12.4, 13.1, 13.2 and 15.1. Velarde’s responses to several of these requests
(Nos. 2.5, 2.6, 2.11, 4.1, 8.2, 12.1, 12.5, 12.4 and 15.1) are incomplete because he fails to fully
respond to each individual subpart contained within the interrogatory. Each answer to an
interrogatory must be “as complete and straightforward as the information reasonably available
to the responding party permits” and “[i]f an interrogatory cannot be answered completely, it
shall be answered to the extent possible.” (See Code Civ. Proc., § 2030.220, subds. (a) and
(b).) Further, several of Velarde’s responses (Nos. 2.11, 12.3, 12.4, 13.1, 13.2) are also not
complete because he does not respond directly to the call of the question. Defendants also fail
to justify Velarde’s privacy objections. Moreover, the Court is not entirely persuaded that the
requests seeking information regarding interviews with potential witnesses, possible
surveillance and investigations, and the existence of relevant videos and photographs implicate
the attorney-client privilege and/or work product protection, as Defendants insists; however, to
the extent that Defendants believe this is the case, they must produce a privilege log which
provide information which is sufficient to make a showing that the information requested is
protected from disclosure.
The Court also finds that further responses to SI, Set One, Nos. 3, 4, 5, 7 and 8 are
warranted. Contrary to Defendants’ assertions, these interrogatories are neither vague nor
ambiguous, they seek information which is relevant to Plaintiff’s claims, and they are not
overbroad in scope. Additionally, Velarde’s response of “unknown” to SI Nos. 4, 5, 7 and 8 is
not code-compliant. If Velarde cannot provide an affirmative or negative response to these
requests, he must specify why this is the case, including articulating what efforts he made to
obtain the requested information. 9See Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 782.)
2. From Buca Restaurants
The Court finds that further responses to SI, Set Two, Nos. 16-21, which seek “contact
information” (defined as “present work and home address”) for various witnesses are not
warranted. While Buca Restaurants asserted numerous objections in response to these
requests, it also provided a substantive response stating that it was not in possession of the
current work and home addresses of the specified individuals because they are no longer
employed by the company. Buca Restaurants then provided the last known phone number for
each individual. In its opposing separate statement, Buca Restaurants represents that its efforts
to locate these individuals and obtain their present work and home addresses were
unsuccessful.
As stated above, each answer to an interrogatory must be “as complete and
straightforward as the information reasonably available to the responding party permits” and
“[i]f an interrogatory cannot be answered completely, it shall be answered to the extent
possible.” (See Code Civ. Proc., § 2030.220, subds. (a) and (b).) The Court has no reason to
doubt Buca Restaurants’ representation that it has provided all of the information available to it
with respect to these SI. Consequently, the Court finds that further responses are not
necessary.
However, the Court does find that a further response to SI No. 22 is warranted. In
response to Plaintiff’s request that it identify those individuals that replaced any loose screws
to bolt down the “transition strip” in the area where her fall occurred, Buca Restaurants
responded only with an objection based on relevancy and provided no substantive response. In
its opposing papers, Buca Restaurants makes no effort to justify this objection, as is its burden,
and therefore the Court finds that it is without merit. (See Fairmont Ins. co. v. Superior Court
(2000) 22 Cal.4th 245, 255 [stating that a party that objects to a discovery request bears the
burden of explaining and justifying the objection].) Accordingly, Buca Restaurants must
provide a further response to this SI.
C. Sanctions
Plaintiff and Defendants’ requests for monetary sanctions are both DENIED.
D. Conclusion
In accordance with the foregoing analysis, the Court rules as follows:
Defendants’ motion for a protective order is DENIED.
Plaintiff’s motion to compel is GRANTED IN PART, DENIED IN PART and
CONTINUED IN PART. The motion is GRANTED as to: FI, Set One, Nos. 2.5, 2.6, 2.11,
4.1, 8.2, 12.1, 12.3, 12.4, 13.1, 13.2 and 15.1 (from Velarde); SI, Set One, Nos. 3, 4, 5, 7 and 8
(from Velarde); SI, Set Two, No. 22 (from Buca Restaurants); and the depositions of Buca
Restaurants, Velarde and Equity. The motion is DENIED as to SI, Set Two, Nos. 16-21 (from
Buca Restaurants).
The motion is CONTINUED with respect to the requests for production contained in
the deposition notices for Buca Restaurants and Equity, subject to the conditions set forth
above.
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