NOTICE TO ALL COUNSEL

Transcription

1 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN MATEO Law and Motion Calendar Judge: HONORABLE SUSAN GREENBERG Department County Center, Redwood City Courtroom 2B Wednesday, June 13, 2018 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) 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 (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 The Court will expect all exhibits to be tabbed accordingly. Case Title / Nature of Case

2 June 13, 2018 Law and Motion Calendar PAGE 2 LINE: 1 16-CLJ CREDITORS ADJUSTMENT BUREAU, INC. VS. PETZILA, INC., ET AL. CREDITORS ADJUSTMENT BUREAU, INC. PETZILA, INC. KENNETH J. FREED MOTION TO ENFORCE THE PARTIES SETTLEMENT AGREEMENT The motion to enforce the settlement agreement is denied. A party seeking to enforce an agreement must show full performance of that party s own obligations. The Settlement Agreement required Plaintiff to file a Notice or Settlement of Entire Case with the Court, detailing the conditional settlement referenced herein and shall serve a copy on Defendant. Plaintiff has not performed this obligation. The agreement was executed June 19, 2017, but no Notice of Settlement is on file. The evidence demonstrates that the parties entered into a settlement agreement, and that Defendant partially performed before failing to make all payments that the agreement required. Although $4,550 remains to be paid, the motion does not seek any order directing Defendant to make the remaining payments. The motion does not ask for any enforcement of the settlement agreement. The motion asks instead for an order that judgment be entered under Code of Civil Procedure section Despite Plaintiff s titling the motion as one to enforce settlement, the Court treats the motion as one for entry of judgment, since that relief is what Plaintiff requests. Plaintiff asks for judgment of $4,550, but Section provides that judgment be entered pursuant to the terms of the settlement. Therefore, the Court orders that judgment be entered pursuant to the terms of the settlement: Plaintiff Creditors Adjustment Bureau, Inc., shall have judgment against Defendant Petzila, Inc., in the amount of $11,550.00, as follows: a. $3, due on or before June 20, 2017; thereafter, b. The sum of $ shall be paid for sixteen (16) consecutive months commencing July 20, 2017, and on the 20th day of each month thereafter through October 20, 2018; and thereafter, c. The 17th and final payment in the sum of $ shall be paid on or before November 20, 2018.

3 June 13, 2018 Law and Motion Calendar PAGE 3 Said payments shall be made by check payable to Creditors Adjustment Bureau, Inc., shall bear the notation ("File No "), and shall be sent to Creditors Adjustment Bureau, Inc., Ventura Blvd., Sherman Oaks, CA Plaintiff acknowledges that Defendant has paid the $3,000 initial payment and the first eight monthly payments of $500, for a total credit of $7, toward satisfaction of judgment. Plaintiff s request for attorney s fees and costs is denied. The agreement permits recovery of fees and costs for the prevailing party on a motion to enforce this Agreement. Since the motion does not seek an order to enforce the Agreement, there is not prevailing party on that motion. Plaintiff shall submit for the Court s signature a judgment as set forth above. If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiff shall prepare a written order consistent with the Court s ruling for the Court s signature, pursuant to California Rules of Court, Rule , and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.

4 June 13, 2018 Law and Motion Calendar PAGE 4 LINE: 2 17-CIV STEPHEN ODEN VS. RODERICK S. RUMLER, ET AL. STEPHEN ODEN RODERICK S. RUMLER DREW M. SANCHEZ STUART HARRIS KLUFT MOTION TO BE RELIEVED AS COUNSEL The unopposed motion to be relieved as counsel is granted. If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule (a)(1), adopted by Local Rule If the tentative ruling is uncontested, ATTORNEY is directed to prepare, circulate, and submit a written order on the appropriate judicial council form for the Court s signature, consistent with the requirements of CRC Rule The proposed order is to be submitted directly to Judge Susan L. Greenberg, Department 3.

5 June 13, 2018 Law and Motion Calendar PAGE 5 LINE: 3 17-CIV LAFRANCE GRAVES, ET AL. VS. OCWEN SERVICING LLC, ET AL. LAFRANCE GRAVES OCWEN SERVICING LLC HAYK M. GRIGORYAN ADAM F. SUMMERFIELD MOTION FOR JUDGMENT Defendant Ocwen Loan Servicing, LLC s (Ocwen) Motion for Judgment on the Pleadings, directed to Plaintiffs Lafrance Graves and Gloria Graves Complaint, is GRANTED as follows: As to the First Cause of Action for violation of Bus. & Prof. Code 17200, the motion is GRANTED WITH LEAVE TO AMEND. This claim is predicated on the alleged HBOR statutory violations and common law claims asserted in the other causes of action, which for the reasons state below, are not sufficiently plead. Therefore, the claim, which is based on the other asserted claims, is not sufficiently plead. Further, the Complaint does not allege facts establishing Plaintiffs standing, which requires alleged facts showing lost money or property. Bus. & Prof. Code Plaintiffs allege they incurred late fees and litigation costs and expenses, and states in a conclusory manner that Plaintiffs have been damaged in the amount of $62,000. The Complaint does not allege, however, that Plaintiffs actually lost/paid any money, or actually lost any property. And there is no allegation the house has been foreclosed upon. Further, to the extent UCL claim is based on the alleged fraud, the Complaint does not sufficiently allege injury to competition or that the public is likely to be deceived by Ocwen s conduct is an antitrust law intended to protect the integrity of business competition itself. A plaintiff must show that defendant s conduct... threatens an incipient violation of an antitrust law, or violates the policy or spirit of one of those laws because its effects are comparable to or the same as a violation of the law, or otherwise significantly threatens or harms competition. Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 187. That is why the relief afforded under is primarily injunctive. I.e., an injunction to restrain the further carrying on of the unfair business practice that is shown to stifle competition in the relevant commercial marketplace. See 17203, While a Plaintiff invoking does need to show injury-in-fact to obtain standing, does not protect individual direct competitors from each other. See Law Offices of Mathew Higbee v. Expungement Assistance Services (2013) 214 Cal.App.4th 544, 552 (explaining that the fundamental purpose of is to promote... fair competition in commercial markets for goods and services... and thereby achieve protection for both competitors and consumers). Nor does protect individual consumers injured by unfair business practices. See Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94 at 110 (recognizing the statute s protection of consumers from false business advertising was...directed toward the right of the public to

6 June 13, 2018 Law and Motion Calendar PAGE 6 protection from fraud and deceit as toward the preservation of fair business competition. ). The Complaint here includes no allegations about harm to business competition itself in the relevant commercial marketplace, or allege that the public is likely to be deceived by Defendant s conduct. As to the Second Cause of Action for violation of the Homeowner s Bill of Rights (HBOR), the motion is GRANTED WITH LEAVE TO AMEND. The Complaint alleges violations of HBOR , , , and alleges other improper conduct without referencing any specific statute. The alleged violations of and fail because both statutes have been repealed. The alleged violation of fails, at a minimum, because the statute requires an allegation that Plaintiffs requested a single point of contact (SPOC), which is not alleged. To the extent this cause of action attempts to allege a violation of any other HBOR statute, the specific statutory provision should be identified so that Defendant may fairly respond. As to the Third Cause of Action for breach of implied covenant of good faith and fair dealing under oral agreement, the motion is GRANTED WITH LEAVE TO AMEND. This claim is based on Ocwen s alleged oral agreement to review Plaintiffs loan modification application in exchange for Plaintiffs agreement to default and submit financial information/documents to Ocwen. No consideration is alleged supporting this purported oral agreement, and thus the implied covenant claim, which hinges on the existence of a valid oral agreement, fails. Further, the alleged breach of the implied covenant (the recording of the Notice of Default) was expressly permitted upon Plaintiffs default under both the Promissory Note and Deed of Trust, and thus cannot serve as the factual predicate for a claim under the implied covenant. Carma Dev, Inc. v. Marathon Dev. Co,, Inc. 2 Cal.4th 342, 374 (1992) (the implied covenant cannot be read into a contract to prohibit a party from doing what the party is expressly permitted to do). As to the Fourth Cause of Action for negligence, the motion is GRANTED WITH LEAVE TO AMEND. Although, as Plaintiffs note, there is some conflicting authority on the issue of whether a lender/servicer owes a duty of care to a borrower in the context of reviewing a loan modification application, the bulk of authority suggests there normally is no such duty of care. Nymark v. Heart Fed. Savings & Loan Assn. (1991) 231 Cal.App.3d 1089, (a lender/servicer s activities relating to the lending of money do not create a duty of care for purposes of a negligence claim); see Lueras v. BAC Home Loans Servicing LP (2013) 221 Cal.App.4th 49, 64 (citing cases holding that reviewing a loan modification request is a traditional money lending activity). The cases finding a duty of care in this context involved allegations of conduct that do not apply here. See, e.g., Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872 (involving a construction loan, not a residential loan). As to the Fifth Cause of Action for actual fraud (citing Civ. Code 1572), the motion is GRANTED WITH LEAVE TO AMEND. The Complaint does not adequately allege a misrepresentation of fact. It alleges Ocwen falsely represented that Ocwen would review Plaintiffs loan modification application. But by Plaintiffs own allegations, Ocwen did so. The Complaint alleges Ocwen reviewed and denied the application. Further, the Complaint does not allege a false statement of existing fact. The alleged false statement involves Ocwen s future conduct (reviewing the application), not any fact existing when the representation was allegedly

7 June 13, 2018 Law and Motion Calendar PAGE 7 made. Further, the Complaint does not comply with the heightened pleading standard for fraud. Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, Even if a false representation were properly plead, there is no clear allegation of who made the false statement, their authority to speak for Ocwen, with whom they spoke, on what date, and exactly what false statement was made. Ocwen s unopposed Request for Judicial Notice as to various documents recorded in the San Mateo County Clerk-Recorder s Office is GRANTED. Evid. Code 452(c). If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule (a)(1), adopted by Local Rule If the tentative ruling is uncontested, DEMURRING 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 The proposed order is to be submitted directly to Judge Susan L. Greenberg, Department 3.

8 June 13, 2018 Law and Motion Calendar PAGE 8 LINE: 4 18-CIV VW CREDIT, INC. VS. DINGCHENG YAO, ET AL. VW CREDIT, INC. DINGCHENG YAO PAMELA L. COX WRIT OF POSSESSION The Application for Writ of Possession is denied. The Complaint alleges that Audi San Diego leased an automobile to Defendant, and that Audi San Diego assigned the lease to VW Credit Leasing, Ltd. Plaintiff offers evidence that the Certificate of Title for the vehicle is in the name of VW Credit Leasing, Inc. The Lease Agreement contains a provision permitting repossession of the vehicle in the event of Defendant s default. Plaintiff offers evidence that Defendant defaulted. Therefore, the assignee of the lease, VW Credit Leasing, Ltd. is entitled to possession of the vehicle. However, Plaintiff presents no evidence that Plaintiff VW Credit, Inc., as opposed to the lease assignee VW Credit Leasing, Ltd., is entitled to possession of the vehicle or any remedy. The Complaint alleges that Plaintiff is the servicer for VW Credit Leasing, Ltd., but does not allege that Plaintiff has standing to bring this action or seek the remedies in the Complaint. If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule (a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule or any other notice is required as the tentative ruling affords sufficient notice to the parties.

9 June 13, 2018 Law and Motion Calendar PAGE 9 LINE: 5 18-CIV COLLEEN KAY CUDD, ET AL. VS. TIFFANY LI, ET AL. COLLEEN KAY CUDD TIFFANY LI ALISON E CORDOVA CAITLIN T. DIMAGGIO MOTION TO DISQUALIFY COUNSEL Defendant TIFFANY LI s Motion to Disqualify Counsel and Guardian ad Litem is DENIED. Defendant has no standing to bring the instant motion, as she is not and has never been a client of Cotchett, Pitre & McCarthy. As a non-client, and with no circumstances indicating that CPM obtained any confidential information about Defendant LI, she has no expectation of confidentiality with CPM. Great Lakes Construction, Inc. v. Burman (2010) 186 Cal.App.4th 1347, Even if Defendant LI had standing, there do not appear to be any actual conflicts of interest between Plaintiff COLLEEN KAY CUDD and the minor Plaintiffs. Simply claiming that an attorney has a potential conflict is insufficient to get them disqualified. Havasu Lakeshore Investments, LLC v. Fleming (2013) 217 Cal.App.4 th 770, To the extent that there may be a potential conflict, all of the Plaintiffs have signed a conflict waiver which addresses this concern. Accordingly, the motion to disqualify is DENIED. The Court further DENIES Defendant LI s request that the guardian ad litem appointed for the minor Plaintiffs be disqualified. Defendant s Evidentiary Objections are OVERRULED as to Objection Nos If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule (a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule or any other notice is required as the tentative ruling affords sufficient notice to the parties. POSTED: 3:00 PM