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civil tentative rulings


The court does not issue tentative rulings on Writs of Attachment, Writs of Possession, Claims of Exemption, Claims of Right to Possession, Motions to Tax Costs After Trial, Motions for New Trial, or Motions to Continue Trial.


Under California Rules of Court, rule 3.1308 and Local Rule 701, any party opposed to the tentative ruling must notify the court, and other parties, by 4:00 p.m. on the court day before the hearing of their intention to appear for oral argument. The court's notice must be made by facsimile to 559-733-6774.


Timestamp: 08/28/2016 at 5:03am



The Tentative Rulings for Monday August 29, 2016 are:

Re:            Tapia v. NBS Default Services, Inc., et al.

Case No.:  VCU 265278

Date:         August 29, 2016

Time:         8:30 A.M. 

Dept.         1– The Honorable Melinda Reed

Motion:     Defendant Wells Fargo Bank, N.A.’s Demurrer to the Complaint

Tentative Ruling: There is no tentative ruling in this matter. The parties are directed to meaningfully meet and confer to resolve this motion. If unable to resolve, the parties are directed to appear at the hearing. No CourtCall is permitted if the parties are unable to resolve.

Re:            Martinez v. Stevens, et al.

Case No.:  VCU 264859

Date:          August 29, 2016

Time:          8:30 A.M. 

Dept.          1– The Honorable Melinda Reed

Motion:      Motion by Proposed Intevenors Young Kwun and EZM Inc. for Order Permitting Intervention

Tentative Ruling: There is no tentative ruling in this matter. The parties are directed to meaningfully meet and confer to resolve this motion. If unable to resolve on the merits, the parties are directed to appear at the hearing. No CourtCall is permitted if the parties are unable to resolve.

Re:           Orisio v. Sousa, et al.

Case No: VCU 251137

Date:        August 29, 2016

Time:        8:30 a.m.

Dept.:       1 – The Honorable Melinda Reed

Motion:    Motion by Defendant Patricia Sousa for Summary Judgment or, Alternatively, for Summary Adjudication

Tentative Ruling:  To Deny the Motion by Defendant Patricia Sousa for Summary Judgment or, Alternatively, for Summary Adjudication.

Plaintiff Steven T. Orisio’s objections to the evidence are overruled for failure to file the objections separately from his other papers submitted in opposition to the motion; defendant Patricia Sousa’s (Patricia) objections to the evidence are overruled for failure to submit a proposed order with the objections. (Cal. Rules of Court, rule 3.1354(c).)

Orisio’s complaint alleges Patricia and defendant Carl M. Sousa (Carl) are liable for intentionally and negligently assaulting him at a class reunion. 

As to the intentional tort, Orisio asserts Patricia conspired, agreed, and intended that Carl would assault him by telling Carl that she had been speaking with Orisio and because Patricia knew of Carl’s alleged violent tendencies. In regard to negligence, Orisio contends Patricia failed to use due care in telling Carl she had been speaking with Orisio and that Patricia conspired with Carl to “negligently commit and assault and battery” upon Orisio.

In regard to the intentional misconduct, Patricia contends the evidence that she knew or should have known Carl would assault Orisio or that she provoked him in to doing so is insufficient as a matter of law. As to negligence, Patricia claims the evidence is insufficient to show she negligently instigated the assault and that she did not have a duty to control Carl’s conduct.

Summary judgment is granted when no triable issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) Summary adjudication is procedurally the same as summary judgment. (Code Civ. Proc., §437c, subd. (f)(2).) "[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850.) Of significance is that the finding of only one material fact in dispute precludes the court from granting summary judgment or adjudication as to the cause of action at issue. (Code Civ. Proc., § 437c, subd. (g).)

Further, in ruling on a motion for summary judgment or adjudication, the court “must consider all of the evidence and all of the inferences reasonably drawn therefrom … and must view such evidence (citations) in the light most favorable to the opposing party.” (Aguilar, supra, 25 Cal. 4th at 843.)

In support of her motion, Patricia alleges there are 17 material facts that are undisputed. The same 17 facts are alleged as to both the intentional and negligent misconduct. However, Orisio has sufficiently met his burden and demonstrated the existence of triable issues of material facts as to the reason why and the manner in which Carl confronted Orisio (Patricia’s fact no. 9); Patricia’s knowledge of Carl’s alleged violent tendencies (Patricia’s facts nos. 10-14); and Patricia’s claim that she was not immediately present at the time of the altercation (Patricia’s fact no. 17).

Moreover, Orisio’s alleged material facts sufficiently indicate disputed issues and facts based on Patricia’s statements to an attendee of the reunion that she suspected Carl of cheating and to “watch what kind of man I am married to” (Orisio’s facts nos. 19-22) immediately prior to Patricia speaking to Carl and the assault. 

Finally, as to Patricia’s claim that she does not owe a duty to Orosio for Carl’s misconduct, the court disagrees. Under Pamela L. v. Farmer (1980) 112 Cal. App. 3d 206, 209, the court determined an exception to the general rule that a person has no duty to control the conduct of a third person absent a special relationship “where the defendant, through his or her own action (misfeasance) has made plaintiff’s position worse and has created a foreseeable risk of harm from the third person.” Here, Orisio has sufficiently shown there is a dispute whether Patricia created a foreseeable risk of harm to Orisio through her own actions occurring just prior to the assault.

In sum, when considering the admissible evidence and reasonable inferences arising therefrom, there are numerous disputed material facts submitted by both sides; and the court need only find one. Hence, the court is precluded from resolving either of the claims for intentional tort and negligence against Patricia as a matter of law.

If no one requests oral argument, Plaintiff shall submit a proposed order in compliance with CCP section 437c(g) and prepared and served in compliance with CRC, rule 3.1312.


                                                                                                        II

Motion:  Motion by Defendant Carl M. Sousa to Quash Deposition Subpoenas for Production of Business Records and for Sanctions.

Tentative Ruling: To deny the Motion by Defendant Carl M. Sousa to Quash Deposition Subpoenas for Production of Business Records and for Sanctions.

Here, Defendant Carl. M. Sousa (Carl) seeks an order to quash the deposition subpoenas served by plaintiff Steven T. Orisio on the Lemoore Police Department and Kings County Sheriff’s Department related to past reports of Carl’s alleged violent propensities. In opposition, Orisio contends the reports are necessary for potential impeachment of defendant Patricia Sousa (Patricia) at trial because she has denied knowledge of Carl’s alleged violent nature.

Under Code of Civil Procedure section 2017.010, a party is entitled to obtain discovery that is relevant to the subject matter if the matter is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Furthermore, as to matters involving a party’s privacy, the right to privacy is not absolute. Under John B. v. Superior Court (Bridget B.) (2006) 38 Cal. 4th 1177, 1199, a party’s privacy right may need to yield to another party’s right to a fair trial.

Here, under the circumstances of this case, Orisio has sufficiently shown the requested police reports are relevant and reasonably calculated to lead to the discovery of admissible evidence that could impeach Patricia’s testimony about a material issue in this case. Accordingly, the motion to quash and request for sanctions is denied.  

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:           Pena v. Quality Loan Service Corporation, et al.

Case No: VCU 263566

Date:       August 29, 2016

Time:       8:30 a.m.

Dept.:      1 – The Honorable Melinda Reed

Motions: (1) Demurrer by Defendant Wells Fargo National Bank, N.A. in Response to Plaintiff’s Complaint; and (2) Motion by Defendant Wells Fargo National Bank, N.A. to Strike Plaintiff’s Complaint.

Tentative Rulings:  (1) To sustain the Demurrer by Defendant Wells Fargo National Bank, N.A. in Response to Plaintiff’s Complaint without leave to amend; and (2) to grant the Motion by Defendant Wells Fargo National Bank, N.A. to Strike Plaintiff’s Complaint without leave to amend.

Proof of service in the court’s file indicates notice of the demurrer and motion to strike was adequate. No response to the motions has been filed with the court.

Defendant Wells Fargo National Bank, N.A.’s (Wells Fargo) request for judicial notice is granted.

Plaintiff Agustine Pena’s complaint asserts five causes of action against Wells Fargo for wrongful foreclosure proceedings after Pena defaulted on his loan secured by a deed of trust originating from defendant PHM Financial Incorporated. Pena’s complaint is premised on his contention that the foreclosing entities had no authority to commence the foreclosure proceedings and that the California Homeowner’s Bill of Rights was violated.

On demurrer, Wells Fargo asserts Pena’s claims fail to state facts sufficient to constitute proper causes of action and are uncertain. The motion to strike seeks to strike causes of action listed on the caption page that are not referenced in the complaint and Pena’s request for improper remedies and damages.
  
 A demurrer can only be used to challenge defects that appear on the face of the complaint or from matters properly judicially noticed. In Saxer v. Philip Morris, Inc. (1975) 54 Cal. App. 3d 7, 18, the court stated “The sole issue involved in a hearing on a demurrer is whether the complaint, as it stands, unconnected with extraneous material, states a cause of action. Griffith v. Department of Public Works 141 Cal. App. 2d 376, 381 [296 P.2d 838].”

 Here, the judicially noticed documents show Pena’s loan and deed of trust were properly assigned and that the foreclosing entities, including Wells Fargo had authority to initiate foreclosure. Moreover, as to the asserted violations of the California Homeowner’s Bill of Rights, Pena has not sufficiently (1) alleged that he timely submitted a loan modification application, (2) identified the entity to which he purportedly submitted the application, or (3) alleged that the application was deemed complete by the receiving entity. Finally, it appears Pena’s claims are barred by the statute of limitations and the effective date of the California Homeowner’s Bill of Rights.

In short, the allegations of Pena’s complaint are insufficient as a matter of law. Accordingly, the demurrer is sustained as to all causes of action and the motion to strike is granted as requested. Furthermore, based upon the judicially noticed documents which directly controvert the allegations stated in the complaint, and Pena’s failure to respond to the motions or provide any information as to how his complaint could properly be amended, leave to amend is appropriately denied. 

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:             Bank of New York, et al. v Moore

Case No.:  VCL 174779

Date:          August 29, 2016

Time:          8:30 A.M. 

Dept.          2– The Honorable David Mathias

Motion:      Demurrer to  Complaint on Unlawful Detainer and Motion to Strike

Tentative Ruling:  To overrule defendant Doris Moore/Tiffany Enoch’s’s Demurrer to  Complaint on Unlawful Detainer and deny their Motion to Strike. Defendants shall have five days’ leave to answer the plaintiff’s complaint.

This is an unlawful detainer action brought by Bank of New York (BONY) against defendant Doris Moore based upon her failure to vacate the property owned by Bank of New York at 21728 Avenue 295, Exeter, California 93221.

Defendant’s demurrer contends that this Court does not have subject matter jurisdiction over the defendants because BONY’s Complaint is defective in its entirety because BONY failed to serve Ms. Moore/Ms. Enoch with a notice to quit as required under CCP §1161c, the proof of service is defective, and that Ms. Moore and Ms. Enoch denies having the “malicious and willful intent to remain in the property.

The standard of review for a demurrer is based on the judicial policy that favors the resolution of cases on their merits rather than through technical defects in the pleadings.  A demurrer raises issues of law, not fact, in its challenge to the opposing party’s pleading.  See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.

In its review of a demurrer, the Court assumes that all facts pled in the complaint to be true and may not consider facts raised for the first time in the demurring party’s moving papers.  See Afuso v. U.S. Fid. and Guar. Co., Inc. (1985) 169 Cal.App.3d 859, 862; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.  Even where the plaintiff’s claims seem unlikely or improbable, the facts raised in its complaint must be accepted as true for purposes of ruling on the demurrer.  See Del E.Webb Corp. v. Structural Materials (1981) 123 Cal.App.3d 593, 604. 

Nor is the plaintiff’s ability to prove the allegations pled in its complaint relevant at the demurrer stage.  See Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197. 213-14.

Additional facts may be implied or inferred from those facts expressly pled in the complaint, and to the extent that there are factual issues in dispute, the court must assume the truth of not only all facts properly pled, but also those facts that may be implied or inferred from these expressly stated in the complaint.  See City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.

Even where the Court finds that the demurer is well taken as to any cause of action, the plaintiff should be granted leave to amend the complaint to allege any additional facts that the Court finds lacking or to clarify any unclear or ambiguous allegations. “Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.” See Angie M. v. Superior Court (Hiemstra)(1995) 37 Cal.App;.4th 1217, 1227.

Accepting the facts and attachment to BONY’s complaint as true – as this Court must due in its review of Ms. Moore/Ms. Enoch’s demurrer,  Exhibit “B” to BONY’s complaint documents that on July 22, 2016 notice to quit was properly served on an occupant of the property at issue in this case –one Brian Epoch – and then  a copy of this complaint was posted on a conspicuous area of this property. Under CCP§1162(a)(2) and/or §1162(a)(3) this constitutes proper service of the notice to quit on the tenants.

The Court must also on demurrer deem to be true that BONY’s complaint was timely and properly served on defendants Moore and Enoch.Accordingly, defendants Doris Moore/Tiffany Enoch’s demurrer is overruled and their motion to strike denied in its entirety. Defendants shall have five days’ leave to answer the plaintiff’s complaint.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

 


This concludes the civil tentative rulings



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