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Law and Motion Calendar
Wednesday, May 15, 2013 at 3:30 p.m.
Courtroom 18 -- Hon. Nancy Case Shaffer
3055 Cleveland Avenue, Santa Rosa, CA
The following tentative rulings will become the ruling of the Court unless a party desires to be heard. If you desire to appear and present oral argument as to any motion, YOU MUST notify Judge Shaffer's Judicial Assistant by telephone at (707) 521-6729, and all other opposing parties of your intent to appear by 4:00 p.m. today, Tuesday, May 14, 2013. Parties in small claims cases and motions for claims of exemption are exempt from this requirement.
1. 211391 – Capital One Bank v. Carter
Plaintiff’s motion to set aside notice of conditional settlement is granted. No opposition was filed and there is no evidence that Defendant would be prejudiced by setting aside the conditional settlement. See New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, the absence of substantial prejudice is an important factor to consider in a motion to set aside.
Plaintiff is to draft an order consistent with this ruling.
2. 220168 – JM Power Systems v. Patterson
Continued to May 15, 2013 for argument on Tentative Decision posted May 1, 2013 as follows:
Defendant’s motion to set aside default, in this collection matter, pursuant to Code of Civil Procedure §473 is denied as untimely, as it was filed more than six months after entry of the default. Further, Defendant has failed to make a showing that the judgment was procured by extrinsic fraud or mistake and therefore has not established a basis for invoking the court’s equitable power to set aside a default. (See, Gibble v. Car-Lene Research, Inc. (1988) 67 Cal.App.4th 295). Defendant admits that he was aware of the action. He acknowledges the debt in his proposed answer and has not established that he has a meritorious defense.
3. 222363 – Fortis Capital IV v. Pearson
Plaintiff’s motion for entry of judgment on settlement agreement pursuant to Code of Civil Procedure §664.6 is granted. Plaintiff is to draft an order consistent with this ruling.
4. 224655 – GCFS, Inc. v. Boucher
Plaintiff's motion for requests to admission to be deemed admitted is granted (CCP §2033.280) and discovery sanctions are ordered in the amount of $430.00. Plaintiff is to draft an order consistent with this ruling.
5. 247137 – Capri Creek v. Etter & Sons
Attorney Ryan Mau’s motion to be relieved as counsel is granted.
6. 250204 – Santana v. JP Morgan Chase Bank
The Defendants have demurred to the Third Amended Complaint and have requested judicial notice of certain documents. The Plaintiffs have not filed an opposition. Defendant’s request for Judicial Notice is granted.
Demurrer to First Cause of Action (CC § 2923.5)
The Third Amended Complaint alleges Defendants failed to contact the Plaintiff prior to filing the Notice of Default. (Third Amended Complaint ¶¶ 90-91). The Complaint alleges non-performance of a statutory obligation and seeks to postpone the sale. The First Cause of Action sufficiently pleads a claim for injunctive relief to postpone the sale. (See Mabry v. Superior Ct. (2010) 185 Cal.App.4th 208, 225-226). The demurrer to the First Cause of Action is overruled.
Demurrer to Second Cause of Action (§ 17200)
A claim for unfair business practices need not be pled specifically. (Quelimane Co. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 46). Even a single act of unfair competition may create liability. (United Farm Workers of America, AFL-CIO v. Dutra Farms (2000) 83 Cal.App.4th 1146, 1163).
Here, Plaintiffs allege that Defendants' violation of Civil Code §2923.5 provides the basis for a claim under Business & Professions Code §17200. See e.g., Cel-Tech Comm. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 187, holding a claim is stated under UCL if defendants would gain an unfair advantage in the market by the alleged behavior.
These allegations are sufficient to survive on demurrer. Plaintiffs, however, have not adequately pled facts showing that they have "suffered injury in fact and [have] lost money or property as a result of the unfair competition." (Bus. & Prof. Code §17204; See also Kwikset Corp. v. Superior Court (2011) 120 Cal.Rptr.3d 741). Accordingly, the demurrer to the Second Cause of Action is sustained with leave to amend.
Demurrers to Third and Fourth Causes of Action (Fraud; Negligent Misrepresentation)
Defendants assert that the Third Amended Complaint fails to allege facts that would give rise to a Cause of Action for fraud. Plaintiffs have failed to allege facts that support a claim against Defendant JP Morgan, as the purchaser of the Washington Mutual assets (which included the subject Loan) for wrongful conduct on the loan origination process. On September 25, 2008, the Office of Thrift Supervision closed Washington Mutual Bank and appointed the FDIC as receiver. JP Morgan then entered into a purchase-and-assumption agreement with the FDIC to assume certain assets of Washington Mutual, but did not assume the liabilities. (See Ex. B to JP Morgan's RJN; See also Scott v. JPMorgan Chase Bank, N.A. (March 18, 2013) --- Cal.Rptr.3d ----, 2013 WL 1098436).
The allegations, do not explicitly name the demurring Defendants as having participated in the fraud with respect to the loan--instead the Third Amended Complaint relies on the allegation that JP Morgan was participating in a "joint venture" with the other Defendants. (Third Amended Complaint at ¶ 13). Although, in evaluating a demurrer, the truth of all material facts properly plead in the complaint is assumed, unless they are contradicted by facts judicially noticed [CCP §§430.30(a), 430.70] the same standard does not apply to legal conclusions. (B&P Dev. Corp. v. City of Saratoga (1986) 185 Cal.App.3d 949, 952-953; see also Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1371). Paragraph 13 alleges a legal conclusion that JP Morgan and Washington Mutual were acting as a joint venture and is not properly supported by factual allegations.
The Demurrer to the Third and Fourth Cause of Action are sustained without leave to amend.
Demurrer to Fifth Cause of Action (Breach of Covenant of Good Faith and Fair Dealing)
The crux of the Plaintiffs’ allegations with respect to this Cause of Action is that the Defendants: (1) willfully withheld disclosures; (2) withheld information with respect to fees and finance charges; and (3) placed the Plaintiffs in a loan they could not afford. Defendants argue that the only agreement between the Defendants and the Plaintiffs is the Declaration of Trust, and that the Plaintiffs fail to allege exactly how the covenant implied in the Declaration of Trust was breached.
Plaintiffs have failed to allege what benefits under the subject loans the alleged breaches deprived him of—plaintiffs received the loan amount. Further, Plaintiffs contention that actions taken prior to the contractual relationship between the parties were governed under the covenant is untenable. (Pasadena Live, LLC v City of Pasadena (2004) 114 Cal.App.4th, 1089, 1093 (holding that the implied covenant does not exist prior to the formation of the contract).
The demurrer to the Fifth Cause of Action is sustained without leave to amend.
Defendant is to draft an order consistent with this ruling.
7. 251338 – Powersav v. Thermal Technology
Previously continued to June 5, 2013, at 3:30 p.m. in Department 18.
8. 251805 – Salgado v. City of Santa Rosa
The Motion of Plaintiff’s attorney to withdraw was not accompanied by a proof of service and a proof of service filed subsequently. (See CRC Rule 3.1362(d)). Accordingly, the motion is denied unless the attorney submits an endorse filed proof of service that indicates proper service.
9. 252753 – Kennedy v. County of Sonoma
Dropped. The demurrers filed by Defendant Ken Murakami and the County of Sonoma to Plaintiff’s original complaint are moot. Plaintiff filed a First Amended Complaint May 2, 2013.
10. 252819 – Beykpour v. Lysenko
Plaintiff Peyman Beykpour moves to strike the answer of Defendant Estate of Helen P. Lysenko in its entirety; or, in the alternative, each and every affirmative defense; or, in the alternative, the fifth affirmative defense. There is no opposition to this motion.
On December 7, 2012, Plaintiff filed a Verified First Amended Complaint. When the Complaint is verified, the Answer shall be verified. (CCP §446.) Additionally, the Defendant’s Answer to a Verified Complaint cannot consist of a simple general denial. (CCP §431.30(d)) On March 13, 2013, Defendant filed its Answer to Unverified Complaint containing a general denial and affirmative defenses. The Answer is not verified. As the Answer is not verified, the court will grant, with leave to amend, Plaintiff’s motion to strike defendant’s answer in its entirety. (CCP §426(b)).