LAW AND MOTION TENTATIVE RULINGS TIME: 9:00 a.m. PREVAILING PARTY SHALL PREPARE THE ORDER (SEE RULE OF COURT )

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1 SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA Department 5, Honorable Carol Overton J. Paura, Courtroom Clerk Dianne Collier, Court Reporter 191 North First Street, San Jose, CA Telephone: To contest the ruling, call (408) before 4:00 P.M. LAW AND MOTION TENTATIVE RULINGS TIME: 9:00 a.m. PREVAILING PARTY SHALL PREPARE THE ORDER (SEE RULE OF COURT ) DATE: 1/15/15 LINE # CASE # CASE TITLE RULING LINE 1 114CV Calmar v. Opitmedica See tentative ruling below. LINE 2 114CV Abraham v. JP Morgan See tentative ruling below. LINE 3 114CV Labicki v. Salmon OFF CALENDAR LINE 4 113CV Schembri v. Hudock See tentative ruling below. LINE 5 112CV Luu v. Cathay Bank Parties to appear. LINE 6 112CV Dolby v. Arcsoft Motions to seal are unopposed and GRANTED. Motions for Summary Adjudication continued by Stipulation/Order to at 9:00 a.m. in Dept. 8 LINE 7 113CV Tark v. Yoon Parties to appear. LINE 8 114CV City of Los Altos v. Schwafel Parties to appear. LINE 9 114CV Symantec v. Rainmaker Parties to appear. LINE CV Trevillion v. FCI Lender OFF CALENDAR LINE CV Bay Area Credit v. Ruano OFF CALENDAR LINE CV Shafi v. One West OFF CALENDAR LINE 13 LINE 14

2 Calendar Line 1 Case Name: Calmar Optcom, Inc. v. Optimedica Corporation, et al. Case No.: 1-14-CV Currently before the Court is the demurrer of defendants Optimedica Corporation ( Optimedica ), Abbott Medical Optics ( Abbott ), and Mark Murray ( Murray ) (collectively, Defendants ) to the second amended complaint ( SAC ) of plaintiff Calmar Optcom, Inc. ( Calmar ). Defendants demur to the third and seventh causes of action on the ground of failure to state facts sufficient to constitute a cause of action. (See Code Civ. Proc., , subd. (e).) Third Cause of Action for Open Book Account Calmar s third cause of action is for an open book account. Defendants contend that this cause of action fails because Calmar does not allege that the parties agreed to treat Optimedica s obligations as items in an open book account, rather than obligations pursuant to express written contracts. In this regard, they rely on Tsetzmin v. Coast Federal Savings & Loan Association (1997) 57 Cal.App.4th 1334, 1343 for the proposition that monies due under an express contract (such as rent due under a lease) cannot, in the absence of a contrary agreement between the parties, be treated as items under an open book account. Given that Calmar alleges that the parties entered into a number of purchase agreements, reciting the number of lasers to be purchased and incorporating the terms and conditions of the sale, Defendants argue that Calmar must allege that there is an agreement between the parties to treat the monies due under the purchase agreements as items of an open book account. In opposition, Calmar argues that it is not required to affirmatively plead such an agreement. Calmar s argument is meritorious. An open book account does not necessarily arise from an agreement between the parties. (See Mercantile Trust Co. v. Doe (1914) 26 Cal.App. 246, 254 [ One definition is that an open account is an account not stated or agreed upon between the parties. [Citation.] It was not necessary that plaintiff should prove an express agreement by defendant that the account should be treated as an open account. As stated in Ruling Case Law, page, 207, it is usually disclosed by the account books of the owner of the demand ; and may be shown by the circumstances attending the dealings between the parties. ].) Thus, a common count may be used to plead a cause of action for open book account. (See Carter v. Canty (1919) 181 Cal. 749, [requiring only a plain and concise statement of the facts constituting the cause of action. ].) Accordingly, Calmar is not required to plead specific facts indicating an express or implied agreement between the parties demonstrating that the payments made were pursuant to an open book account. In any case, Calmar pleads sufficient facts to support such an agreement. As alleged in the SAC, under the terms of the purchase agreements, Optimedica was obligated to make monthly installment payments for the purchase of the lasers at issue. (SAC, 11.) Calmar alleges that Optimedica made an untimely, lump sum payment on August 7, 2013 instead of complying with the express terms of the contract. (SAC, 11.) Courts have found that similar conduct supports the existence of an implied agreement for an open book account. (See Warda v. Schmidt (1956) 146 Cal.App.2d 234, [trial court could infer existence of an open book account when installment-payment provisions of express contract not followed].)

3 In light of the foregoing, Calmar states sufficient facts to allege a cause of action for open book account. Accordingly, the demurrer to the third cause of action is OVERRULED. Seventh Cause of Action for Fraud The seventh cause of action is for fraud. The parties entered into a stipulation to dismiss this cause of action without prejudice. (See Opposition, p. 1:22-25.) Accordingly, the Court does not issue a ruling as to the demurrer to the seventh cause of action. - oo0oo -

4 Calendar Line 2 Case Name: Roy Abraham, et al. v. JPMorgan Chase Bank, N.A., et al. Case No.: 1-14-CV Currently before the Court is the demurrer of defendants JPMorgan Chase Bank, N.A. ( Chase ) and California Reconveyance Company ( CRC ) (collectively, Defendants ) to the first amended complaint ( FAC ) of plaintiffs Roy Abraham and Danilo Suva (collectively, Plaintiffs ). Defendants demur to each cause of action in the complaint on the ground of failure to allege sufficient facts to constitute a cause of action. (See Code Civ. Proc., , subd. (e).) Requests for Judicial Notice In support of their demurrer, Defendants ask the Court to take judicial notice of a number of court records, recorded real property records, and the purchase and assumption agreement between the Federal Deposit Insurance Corporation ( FDIC ) and Chase. The request for judicial notice is GRANTED. (See Evid. Code, 452, subd. (d); Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, ; Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, ) In support of their opposition to the demurrer, Plaintiffs ask the Court to take judicial notice of the following: (1) a copy of Defendants response to Plaintiffs request for production of documents, set one, in the present action; (2) a property securitization analysis report; (3) an order granting a motion for relief from automatic stay in the matter of Latoya Sutton v. Bank of America, N.A. filed in the United States Bankruptcy Court, Central District of California; and (4) the transcript of a deposition held in the matter of Washington Mutual Bank v. Wainsome, a case in the Fifth Judicial Circuit in Lake County, Florida, taken on May 9, Plaintiffs request for judicial notice is GRANTED as to Exhibits 1 and 3. (See Evid. Code, 452, subd. (d); Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [court may take judicial notice of opposing party s discovery responses].) With regard to Exhibit 2, Plaintiffs ask the Court to take judicial notice of the property securitization analysis report pursuant to Evidence Code section 452, subdivision (a). Section 452, subdivision (a), provides that the Court may take judicial notice of the decisional, constitutional, and statutory law of any state in the United States and the resolutions and private acts of Congress and the legislature of California. Here, the property securitization analysis report is not a law of any state or a resolution or private act of Congress or the California legislature. Thus, Plaintiffs request for judicial notice as to Exhibit 2 is DENIED. With regard to Exhibit 4, while the Court may take judicial notice of a deposition transcript if it is part of a court record (see Garcia v. Sterling (1985) 176 Cal.App.3d 17, 22), Plaintiffs do not indicate that the this deposition is part of a court record. Accordingly, Plaintiffs request for judicial notice as to Exhibit 4 is DENIED. / / / / / / / / /

5 Demurrer to the FAC Defendants contend that each cause of action in the instant complaint is barred by the doctrine of res judicata because Plaintiffs litigated the same claims in Roy J. Abraham, et al. v. Washington Mutual Bank, FA, et al., case number ( Case 1 ). The elements of the doctrine of res judicata are: (1) a claim or issue raised in the present action is the same as a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding. (See Boeken v. Phillip Morris USA, Inc. (2010) 48 Cal.App.4th 788, 797.) First, Defendants and Plaintiffs were both parties to Case 1. (RJN, Ex. 8.) Accordingly, the same party requirement is satisfied. Second, the claims raised in the present action are the same as the claims litigated in Case 1. California adheres to a primary rights theory in determining whether the claims or causes of action are the same. [Citation.] The significant factor is whether the claim or cause of action is for the invasion of a single primary right. (Burdette v. Carrier Corp. (2008) 158 Cal.App.4th 1668, ) Therefore, the focus is upon the harm suffered, as opposed to the particular legal theory asserted by the litigant. (See Bay Cities Paving & Grading v. Lawyers Mutual Insurance Co. (1993) 5 Cal.4th 854, 860.) Here, the alleged invasion of primary rights suffered in both the 2012 action and the present action are the same. In both actions, Plaintiffs alleged that they were harmed by: (1) the foreclosure of their property by parties who purportedly lacked the authority to foreclose (Defendants Request for Judicial Notice ( RJN ), Ex. 8, 93-96; FAC, 26); (2) the recordation of fraudulent documents (RJN, Ex. 8, ; FAC, 36); and (3) the failure to timely respond to a qualified written request in violation of RESPA (RJN, Ex. 14, 30-31; FAC, ). In opposition, Plaintiffs assert that the causes of action in the present action are not the same as Case 1 because they discovered new and additional facts. In particular, Plaintiffs state that they discovered that a Chase mortgage officer admitted at a 2012 deposition that there is no schedule of mortgage loans evidencing the properties purchased from FDIC in connection with the failure of WaMu. (Opposition, p. 3:6-13.) This argument lacks merit. While the doctrine of res judicata does not apply where there are changed conditions and new facts not in existence at the time of the prior judgment (see Neil Norman v. William Kasper & Co. (1983) 149 Cal.App.3d 942, 947), the new deposition testimony did exist prior to the judgment in Case 1 in (RJN, Ex. 16.) Thus, Plaintiffs discovery of this additional evidence does not bar the application of res judicata. Accordingly, the same claim requirement is satisfied. Finally, the judgment in Case 1 constitutes a final judgment on the merits. In Case 1, the Court entered a judgment of dismissal after sustaining Defendants demurrer without leave to amend. (RJN, Exs. 15 & 16.) A demurrer which is sustained for failure to state facts sufficient to constitute a cause of action is considered a final judgment on the merits. (See Kanarek v. Bugliosi (1980) 108 Cal.App.3d 327, 334.) A review of the order sustaining the demurrer in Case 1 indicates that it was sustained on the ground that Plaintiffs failed to state facts sufficient to constitute a cause of action. (RJN, Ex. 15.)

6 In sum, the claims raised in the present action are the same as the claims litigated in Case 1, Case 1 resulted in a final judgment on the merits, and Plaintiffs were a party to the prior proceedings. Thus, Plaintiffs are barred from litigating the instant action. Plaintiffs provide no indication in their opposing papers, nor is it readily apparent, how the foregoing deficiency can be remedied by amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [burden on plaintiff to establish he or she can amend pleading and how amendment changes legal effect of pleading].) Accordingly, the demurrer to each cause of action in the FAC is SUSTAINED WITHOUT LEAVE TO AMEND. - oo0oo -

7 Calendar line 3 Case Name: Case Number: - oo0oo -

8 Calendar Line 4 Case Name: Schembri v. Hudock Case No.: 1-13-CV Defendant David Hudock ( Defendant ) moves for summary judgment and, in the alternative summary adjudication of plaintiff Joseph Schembri s ( Plaintiff ) First Amended Complaint. Defendant s request for judicial notice is GRANTED. Plaintiff s objections to evidence are OVERRULED. Defendant s objections to evidence are OVERRULED for failure to comply with California Rules of Court, rule (c). A. Negligence/Professional Negligence The elements of negligence are (a) a legal duty to use due care; (b) a breach of such legal duty; and (c) the breach as the proximate or legal cause of the resulting injury. (Ladd v. County of San Mateo (1996) 12 Cal. 4th 913, 917.) The elements of a cause of action in tort for professional negligence are: (1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence. (Budd v. Nixen (1971) 6 Cal. 3d 195, 200.) Defendant provides evidence that the Evidence of Insurance Card for the subject vehicle reflects underinsured motorist ( UIM ) coverage in the amount of $50,000/$100,000. (Defendant David Hudock s Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment or, Alternatively, Summary Adjudication as to all Causes of Action in Plaintiff s Complaint ( UMF ), No. 11.) On January 12, 2007, Plaintiff signed a Memorandum of Automobile Insurance for the subject vehicle. (UMF, No. 14.) The Memorandum of Automobile Insurance for the subject vehicle reflects UIM coverage in the amount of $50,000/$100,000. (UMF, No. 15.) On January 12, 2007, Plaintiff signed an Uninsured Motorist Election Agreement for the subject vehicle that states that Plaintiff agreed that UIM coverage limits were reduced to $50,000 per person and $100,000 per occurrence. (UMF, Nos ) The Uninsured Motorist Election Agreement would apply until Plaintiff notified the company in writing that a change is desired. (UMF, No. 20.) Plaintiff never notified Defendant in writing that greater UIM limits were desired. (UMF, No. 21.) Defendant also provides evidence that Plaintiff s personal umbrella policy was reinstated for the policy period June 3, 2011 through June 3, (UMF, No. 52.) Defendant never represented to Plaintiff that Plaintiff had $2 million limits under his umbrella policy for UIM coverage; Plaintiff was just under the impression that his personal umbrella policy included UIM coverage. (UMF, Nos. 55, 58.) The above evidence demonstrates that Defendant did not misrepresent the amount of coverage provided to Plaintiff; rather, Plaintiff received notices from Defendant and the

9 insurance company, Farmers Insurance Exchange, regarding the amount of UIM coverage. Plaintiff signed documents acknowledging the reduction in UIM coverage in It is [] axiomatic that an insurance policy is but a contract and that like all other contracts, it must be construed from the language used; where... its terms are plain and unambiguous, the courts have a duty to enforce the contract as agreed upon by the parties. (Hackethal v. Nat'l Casualty Co. (1987) 189 Cal. App. 3d 1102, 1109.) It is a general rule that the receipt of a policy and its acceptance by the insured without objection binds the insured as well as the insurer and he cannot thereafter complain that he did not read it or know its terms. It is a duty of the insured to read his policy. (Id. at p. 1112, emphasis in original.) The evidence shows that Plaintiff received policy documents that listed the UIM limits. Plaintiff had a duty to read the policy documents and was bound by his acceptance of the policy. Consequently, Defendant has met his initial burden of showing that he did not breach any duty to Plaintiff. In opposition, Plaintiff argues that Defendant had a heightened or special duty of care to Plaintiff. [A]s a general proposition, an insurance agent does not have a duty to volunteer to an insured that the latter should procure additional or different insurance coverage. (Fitzpatrick v. Hayes (1997) 57 Cal. App. 4th 916, 927.) The rule changes, however, when--but only when--one of the following three things happens: (a) the agent misrepresents the nature, extent or scope of the coverage being offered or provided..., (b) there is a request or inquiry by the insured for a particular type or extent of coverage...,or (c) the agent assumes an additional duty by either express agreement or by holding himself out as having expertise in a given field of insurance being sought by the insured.... (Fitzpatrick v. Hayes, supra, 57 Cal. App. 4th at p. 927.) Plaintiff contends that at least one, and possibly all three, of the exceptions applies. Plaintiff asserts that he specifically requested that Defendant provide coverage sufficient to protect against Plaintiff s use of the subject vehicle as a business vehicle. (Plaintiff s Separate Statement of Undisputed Material Facts and Supporting Evidence in Opposition to Defendant David Hudock s Motion for Summary Judgment or, in the Alternative, Summary Adjudication as to all Causes of Action in Plaintiff s Complaint ( Opp. AMF ), No. 40.) In 2011, Defendant told Plaintiff in an that increasing his BI (bodily injury) limit to 500/500 on each vehicle and adding a $2 million excess policy would give greater coverage at a lesser cost and this extra protection was important to Plaintiff. (Opp. AMF, No. 86.) Plaintiff responded to Hudock to go for it. (Opp. AMF, No. 87.) Plaintiff contends that it was reasonable for him to believe that the bodily injury limits and the $2 million umbrella policy would mean that if he was hit by an underinsured driver and suffered bodily injury, the limits would be $500,000 plus $2 million. Plaintiff relies on several cases to support his contention that Defendant assumed a greater duty to Plaintiff based on Plaintiff s request for coverage sufficient to protect against Plaintiff s use of the subject vehicle as a business vehicle. In Free v. Republic Ins. Co. (1992) 8 Cal. App. 4th 1726, 1729, which involved a homeowners policy, the plaintiff contacted his insurance company each year to inquire whether the coverage limits of his policy were adequate to reconstruct his house. He was informed that

10 they were. (Ibid.) After his residence was destroyed by a fire, he found out that property values had substantially increased and his policy limit was insufficient to replace his home. (Ibid.) The appellate court found that once the insurance company elected to respond to the plaintiff s inquiries, a special duty arose requiring them to use reasonable care. (Ibid.) In Desai v. Farmers Ins. Exchange (1996) 47 Cal. App. 4th 1110, 1114, the plaintiff informed an insurance agent that he wanted 100 percent coverage for the cost of repairing or replacing improvements to certain real property that he owned, including any increases for inflation. In reliance upon the representations of the insurance agent and based on the understanding that the policy provided 100 percent replacement coverage in the event of a loss, Desai purchased a Farmers insurance policy. (Desai v. Farmers Ins. Exchange, supra, 47 Cal. App. 4th at p ) Several years later, three structures on the plaintiff s land were destroyed due to an earthquake. (Ibid.) The total loss sustained by the plaintiff was $ 546,757. (Id. at p ) Farmers agreed to pay the plaintiff $158,734 on the grounds that this sum was the limit of its liability for the loss. (Ibid.) The court ultimately found for the plaintiff, stating: This is not a situation wherein an insured belatedly realized--after an accident occurred and a claim was made and denied--that he or she should have had more or different coverage. Rather, [the plaintiff] demanded a particular level of coverage at the outset, before he agreed to purchase a policy. It was then represented to him that he was receiving the demanded level of coverage from Farmers, and only afterwards did he discover the coverage he purchased was not what he had demanded nor what the insurer and its agent warranted it was. This is not a failure to recommend more coverage case; it is a failure to deliver the agreed-upon coverage case. (Desai v. Farmers Ins. Exchange, supra, 47 Cal. App. 4th at p ) Lastly, in Paper Savers, Inc. v. Nacsa (1996) 51 Cal. App. 4th 1090, , the court stated that [i]n addition to an express agreement to ensure adequate coverage or a holding out by the agent to assume a greater duty toward an insured, an insurance agent may also assume a greater duty toward his insured by misrepresenting the policy s terms or extent of coverage. The plaintiff alleged that the defendant made statements which led the plaintiff to believe the replacement cost coverage endorsement the agent recommended was adequate to replace all his equipment in the event of a total loss. (Id. at p ) The court held that this allegation took the case out of the ordinary general duty of care and triggered a greater and special duty to the insured as a result of the insurance agent s alleged representations. (Ibid.) The instant matter is distinguishable from each of the cases cited by Plaintiff. Plaintiff does not provide evidence showing that he told Defendant that he wanted to increase his UIM coverage or that Defendant represented Plaintiff had a different amount of UIM coverage than was stated in the insurance documents signed by Plaintiff. Plaintiff alleges that after selling his previous car, a BMW, he asked for the same coverage on the subject vehicle as had been placed on the BMW. (FAC, 11.) However, as discussed above, Plaintiff signed documents acknowledging the reduction in UIM coverage in (UMF, Nos ) Further, while Plaintiff contends that he indicated to Defendant that he wanted increases in coverage for all of his policies during conversations about umbrella and UIM motorist policies (Opp. AMF, Nos. 1, 50), Plaintiff provides no evidence that he requested any specific amount of UIM coverage or any specific increase in UIM coverage. Without such a request, Defendant would not have any

11 increased duty to provide a specific amount of coverage different than what was provided. (See Ahern v. Dillenback (1991) 1 Cal. App. 4th 36, [plaintiff s request for full coverage did not give rise to any additional duty on the part of defendants to procure additional coverage or advise about the availability of such coverage].) With regard to Plaintiff s argument that Defendant assumed an additional duty by holding himself out as an expert on umbrella and UIM motorist policies, Plaintiff asserts that Defendant and Plaintiff had several conversations where Defendant mentioned and attempted to explain UIM and umbrella policies. Plaintiff does not cite authority supporting the proposition that merely discussing an insurance policy makes an agent an expert and gives rise to an additional duty. If this were the case, all agents would have such an additional duty. In sum, Plaintiff fails to provide evidence sufficient to raise a triable issue of material fact regarding whether Defendant had a heightened or special duty. Plaintiff asserts that he is not contending that the policy language included UIM coverage, but instead that Defendant represented the increased umbrella policy included UIM coverage. Plaintiff provides no evidence regarding any representation made by Defendant regarding the inclusion of UIM coverage in the umbrella policy. Plaintiff s only evidence is that he had a belief, based on conversations with Defendant, the UIM coverage was included under the umbrella policy. (Plaintiff s Response to Defendant David Hudock s Separate Statement of Undisputed Material Facts and Supporting Evidence, Nos ) Defendant provides evidence that Plaintiff stated in deposition that he does not know if Defendant ever told him that the umbrella policy included UIM coverage. (UMF, No. 56.) Plaintiff s opposition evidence regarding his belief is insufficient to raise a triable issue of material fact in this regard. In sum, Defendant has met his initial burden of showing that he did not breach any duty to Plaintiff, and Plaintiff has not raised any triable issue of material fact. B. Negligent Misrepresentation Negligent misrepresentation is a form of deceit, the elements of which consist of (1) a misrepresentation of a past or existing material fact, (2) without reasonable grounds for believing it to be true, (3) with intent to induce another s reliance on the fact misrepresented, (4) ignorance of the truth and justifiable reliance thereon by the party to whom the misrepresentation was directed, and (5) damages. (Fox v. Pollack (1986) 181 Cal.App.3d 954, 962, internal citation omitted.) A negligent misrepresentation claim requires a positive assertion, not merely an omission. (Lopez v. Nissan North America, Inc. (2011) 201 Cal. App. 4th 572, 596, quotation marks omitted.) As discussed above in connection with the negligence causes of action, there is no evidence of any affirmative representation made by Defendant to Plaintiff. Accordingly, Plaintiff cannot maintain this cause of action. For the reasons discussed above, Defendant s motion for summary judgment is GRANTED. - oo0oo -