SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 9, Honorable Mary E. Arand
Henry Keniston, Courtroom Clerk
Tina White, Court Reporter
191 North First Street, San Jose, CA 95113
Telephone: 408.882.2200
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW AND MOTION TENTATIVE RULINGS
DATE:
December 2, 2014
TIME:
9:00 A.M.
PREVAILING PARTY SHALL PREPARE THE ORDER OR AS STATED
OTHERWISE BELOW.
(SEE RULE OF COURT 3.1312)
TROUBLESHOOTING TENTATIVE RULINGS
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LINE #
CASE #
CASE TITLE
RULING
LINE 1
106CV070192 Wells Fargo Merchant Services LLC Order of examination of Jim Dalton, aka James Dalton, etc.
vs. Pacific Wood Windows, LLC, et Proof of service has been filed. Parties and witness ordered
al
to appear.
LINE 2
108CV113931 T. Shahedi vs. Trimbco, Inc., et al
LINE 3
108CV122497 National Credit Acceptance, Inc. vs. J. Order of examination of Joseph Jimenez. Proof of service
Jimenez
has been filed. Parties ordered to appear.
LINE 4
111CV203834 D. Calonje vs. R. Insignares, et al
LINE 5
113CV258290 Nico Alloys, Inc. vs. American Metal Order of examination of third party witness Tamara Misle.
Group, Inc., et al
No proof of service has been filed.
LINE 6
701CV410250 National Credit Acceptance, Inc. vs.
G. Joseph
Order of examination of Joseph Gilyanna. Proof of service
has been filed. Parties ordered to appear.
LINE 7
113CV253310 Zayo Group, LLC vs. Media
Defender, Inc., et al
Ctrl/click on Line 7 for tentative ruling
LINE 8
114CV265862 E. Qarmout vs. JP Morgan Chase
Bank, et al
Ctrl/click on Line 8 for tentative ruling
LINE 9
114CV268201 M. Bonallie vs. X. Dong, et al
Off calendar as moot. First amended cross-complaint was
filed.
LINE 10 113CV253698 Institute of Medical Education, Inc.
vs. Western Association of Schools
and Colleges
Counsel to appear.
Order of examination of Lucia Calonje. Proof of service has
been filed. Parties ordered to appear.
Ctrl/click on Line 10 for tentative ruling
SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 9, Honorable Mary E. Arand
Henry Keniston, Courtroom Clerk
Tina White, Court Reporter
191 North First Street, San Jose, CA 95113
Telephone: 408.882.2200
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW AND MOTION TENTATIVE RULINGS
LINE 11 106CV076284 Bosco Oil, Inc. vs. M. Khaziri
On 10/24/2014, Plaintiff filed an “Amended” Notice of
Motion and application for orders for enforcement of
judgment. The Court notes that the “Amended” notice of
motion may relate to the hearing on 9/30/14 that was
ordered off calendar.
On November 17, 2014, Plaintiff filed a new Notice of
Motion seeking the same relief as in the prior motion, and
served this new Notice of Motion by mail on November 13,
2014. The last day to serve a motion by mail for a hearing
on December 2, 2014 was October 31, 2014, and the service
of this motion was not timely. The Court also notes that
neither the 10/24/14 Amended Notice of Motion or the
11/17/14 Notice of Motion were served on Elena Khaziri,
who claims an interest in the subject property.
LINE 12 1113CV245445 Price Law Firm vs. RFP Realty, Inc., Parties to appear to report on status of matter.
et al
LINE 13 113CV256045 C. Costa, et al vs. S. Kewal, et al
Ctrl/click on Line 13 for tentative ruling
LINE 14 114CV266812 Businesses 4 Sale By Owner, Inc. vs.
Petition to compel arbitration by Defendants Montgomery
Montgomery Professional Services
Professional Services Corporation and Rick Giorgetti
Corporation, et al
(“Montgomery Defendants”) was timely served, is
unopposed, has merit, and is GRANTED. Counsel for the
Montgomery Defendants to appear to advise the Court if
Defendant Global Upside, Inc. will be a party to the
arbitration.
SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 9, Honorable Mary E. Arand
Henry Keniston, Courtroom Clerk
Tina White, Court Reporter
191 North First Street, San Jose, CA 95113
Telephone: 408.882.2200
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW AND MOTION TENTATIVE RULINGS
LINE 15 114CV270226 West San Carlos Street, LLC vs.
Green Valley Corporation
Petitioner 1091-1099 West San Carlos Street LLC
(“Petitioner”) filed its petition for release of mechanics lien
recorded against the subject property, originally set for
hearing on October 21, 2014. The Court at that time
questioned the statutory authority for payment of attorney
fees, and directed Petitioner to file an amended notice of
hearing.
The Petition was personally served on Respondent Green
Valley Corporation dba Barry Swenson Builder
(“Respondent”) on September 19, 2014. On that same date,
Respondent recorded a Release of Mechanics Lien. The
Petition to release the property from the mechanic’s lien is
moot. However, it was necessary for Petitioner to file its
Petition to obtain the release of the mechanics lien.
The Amended Petition for Release of Real Property from
Lien and to Establish Basis for Attorney Fees was served on
October 27, 2014 and filed on October 28, 2014. The
Petition and Amended Petition were timely and properly
served and are unopposed.
Petitioner is seeking an award of attorney fees as
prevailing party pursuant to Civil Code section 8488(c) in
the amount of $1,725 plus costs of $488.79. The Court finds
that these amounts are reasonable and GRANTS Petitioner’s
request for attorney fees of $1,725, plus costs of $488.79,
for a combined total of $2,213.79. Petitioner shall prepare
the order.
LINE 16 112CV229129 E. Qarmout vs. JP Morgan Chase
Bank
Off calendar. No moving papers filed.
LINE 17 112CV230899 S. Maciel vs. Jensen Landscape
Services, Inc., et al
Off calendar.
LINE 18 113CV240052 Pride Acquisitions, LLC vs. H.
Goodman, et al
Off calendar. No moving papers filed.
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Case Name: Zayo Group, LLC v. Media Defender, Inc., et al.
Case No.:
1-13-CV-253310
Currently before the Court is the demurrer by defendant SafeNet, Inc. (“SafeNet”) to
the first amended complaint (“FAC”) of plaintiff Zayo Group, LLC (“Plaintiff”). SafeNet
demurs to the FAC in its entirety on the grounds that: “Plaintiff has failed to plead facts
demonstrating it has standing to sue;” and “Plaintiff has failed to state facts sufficient to
constitute a cause of action against [SafeNet] because Plaintiff has failed to plead the terms of
the contract or attach a legible copy of the contract to the [FAC] and incorporate it by
reference.” (Notice of Demurrer, p. 2:16-20; see also Code Civ. Proc., § 430.10, subd. (e).) In
addition, SafeNet demurs to the second, fifth, and sixth causes of action of the FAC on the
grounds of failure to allege sufficient facts to state a cause of action and uncertainty. (See
Code Civ. Proc., § 430.10, subds. (e), (f).)
Plaintiff’s request for judicial notice of the FAC is GRANTED. (See Evid. Code,
§ 452, subd. (d).) Plaintiff’s request for judicial notice of the Judicial Council of California
Pleading Form PLD-C-001(2) entitled “Cause of Action---Common Counts” is DENIED. (See
People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [only relevant
matters are subject to judicial notice].)
Plaintiff filed a response to SafeNet’s reply on November 24, 2014. No statutory
provision permits Plaintiff to file a response to SafeNet’s reply and the Court has not
considered the “response” to the reply.
SafeNet’s demurrer to the entire FAC on the ground of failure to allege sufficient facts
to state a cause of action is OVERRULED.
The FAC adequately pleads facts demonstrating that Plaintiff has standing to sue
because it states that Plaintiff “has succeeded to all right, title and interest in and to the claims
sued upon herein by virtue of a merger with AboveNet.” (FAC, ¶ 1.)
Moreover, the anti-assignment provision in the Agreement does not prohibit Plaintiff
from bringing this action because under both New York and California law, when a contract,
such as this one, prohibits the assignment of the contract, the anti-assignment clause does not
preclude the assignment of money due or claims for the money due under the contract. (See
FAC, Ex. D, p. 5, ¶¶ 10 [providing that “[neither] Party will assign or [sic] the Agreement
without the other Party’s prior written consent, except that either Party may assign this
Agreement upon notice and without the other Party’s consent” under certain conditions], 13.1
[stating that New York law governs the Agreement’s terms]; see also Trubowitch v. Riverbank
Canning Co. (1947) 30 Cal. 2d 335, 339-340 [“It is established that a provision in a contract or
a rule of law against assignment does not preclude the assignment of money due or to become
due under the contract … or of money damages for the breach of the contract”]; see also Sacks
v. Neptune Meter Co., 144 Misc. 70, 78-79 (N.Y. App. Term 1932) [“There is an important
difference between an assignment of a contract itself and an assignment of a claim for moneys
due under the contract.”]; see also Snyder v. City of New York, 74 App. Div. 421, 425-426
(N.Y. App. Div. 1902) [“there was a wide distinction between the assignment of a contract and
the assignment of moneys falling due thereunder after performance. For the purpose of
disposition of this question, we assume that there was a breach of the contract upon the part of
the city, and, if so, the contractor became entitled to have and receive the sums of money
which had been earned thereunder and for such damages as might have been occasioned by the
breach. An assignment, therefore, of these claims would not be an assignment of the contract
but of a cause of action against the city for the recovery of moneys which it was obligated to
pay, and in this view of the question there would be no violation of that clause of the contract
which prohibited its assignment without the consent of the commissioner of public works. The
clause in question is a restriction solely upon the assignment of the contract as such and not of
the moneys earned thereunder which the city is bound to pay.”].)
Furthermore, while it is true that the text of the “Additional Terms” of the April 30,
2009 amendment to the Agreement, attached to the FAC as exhibit G, are very small and
difficult to read, they are not illegible. (See FAC, Ex. G.) Moreover, by attaching exhibit G-1
to the FAC Plaintiff is not seeking to hold SafeNet liable based on an unrelated contract, but
merely attempting to assist the reader of exhibit G as the text of the “Additional Terms” in
exhibit G is admittedly very small and the quality of the copy is not ideal.
Additionally, SafeNet’s argument that it cannot be held liable for the alleged breach of
the Agreement because it assigned its obligations under the Agreement to Media Defender on
April 15, 2009, lacks merit. First, it is not readily apparent that the SafeNet’s attempt to assign
the Agreement to Media Defender pursuant to the Assignment and Assent to Consignment was
valid because the Assignment and Assent to Consignment is not signed by AboveNet and the
Agreement contains an anti-assignment provision that provides that the contract cannot be
assigned without the consent of all parties to the contract. (See FAC, Exs. D, F.) Second, even
assuming arguendo that the April 15, 2009 Assignment and Assent to Consignment is valid, it
states only that SafeNet will remain liable for all obligations under the Agreement prior to the
“Effective Date” of the assignment. Since the “Effective Date” of the assignment is defined by
the Assignment and Assent to Consignment as the date on which the last party to the
Assignment and Assent to Consignment signs the document and AboveNet did not sign the
Assignment and Assent to Consignment, there is no way for the Court to determine the
“Effective Date” of the assignment. Moreover, the Assignment and Assent to Consignment
does not state that SafeNet shall only remain liable for obligations arising under the Agreement
that occurred prior to the date of assignment or that SafeNet shall not be liable for any
obligations arising under the Agreement after the date of assignment.
SafeNet’s demurrer to the second cause of action of the FAC on the grounds of failure
to allege sufficient facts to state a cause of action and uncertainty is OVERRULED.
While SafeNet states in its demurrer that it demurs to the second cause of action of the
FAC on the ground of failure to allege sufficient facts to state a cause of action, it offers no
argument in support thereof in its memorandum of points and authorities. (See Cal. Rules of
Court, rules 3.1112(a) and 3.1113(a)-(b) [motion must be supported by a memorandum stating,
inter alia, “the law, evidence and arguments relied on”; court “may construe the absence of a
memorandum …, in the case of a demurrer, as a waiver of all grounds not supported”]; see also
Golden Day Schools, Inc. v. Department of Education (1999) 69 Cal.App.4th 681, 695, fn. 9
[“An issue merely raised by a party without any argument or authority is deemed to be without
foundation and requires no discussion.”].)
Additionally, SafeNet’s arguments regarding uncertainty lack merit as the FAC is not
so unintelligible as a result of the purported omissions that SafeNet cannot reasonably respond.
(See Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616 [“A demurrer for
uncertainty is strictly construed, even where a complaint is in some respects uncertain, because
ambiguities can be clarified under modern discovery procedures.”].) Moreover, Plaintiff
indicates that the February 27, 2007 order form attached to the FAC as exhibit E is complete
and there is no fourth page missing. Plaintiff points out that the numbers reference by SafeNet
appear to be page numbers assigned by a fax machine and not page number designations in the
order form itself. (See FAC, Ex. E.) Additionally, Plaintiff persuasively argues that SafeNet
misreads page 3 of the Assignment and Assent to Consignment as it merely refers to the order
that is to be assigned by describing the order and the order number, but does not purport to
attach the order to the document. (See FAC, Ex. F.)
SafeNet’s demurrer to the fifth cause of action of the FAC on the grounds of failure to
allege sufficient facts to state a cause of action and uncertainty is OVERRULED.
While SafeNet states in its demurrer that it demurs to the fifth cause of action of the
FAC on the ground of uncertainty, it offers no argument in support thereof in its memorandum
of points and authorities. (See Cal. Rules of Court, rules 3.1112(a) and 3.1113(a)-(b) [motion
must be supported by a memorandum stating, inter alia, “the law, evidence and arguments
relied on”; court “may construe the absence of a memorandum …, in the case of a demurrer, as
a waiver of all grounds not supported”]; see also Golden Day Schools, Inc. v. Department of
Education (1999) 69 Cal.App.4th 681, 695, fn. 9 [“An issue merely raised by a party without
any argument or authority is deemed to be without foundation and requires no discussion.”].)
Furthermore, the following allegations in the FAC are sufficient to state a claim for an
open book account: “[w]ithin four (4) years last past, Defendants and each of them have
become indebted to Plaintiff in the sum of $139,049, on a book account for services rendered
by Plaintiff to defendants at defendants’ special request;” Plaintiff performed all of its
obligations under the Agreement; “[n]o part of said sum has been paid, although demand
therefore has been made;” “there is now due, owing and unpaid the sum of $139,049.21, plus
interest thereon at the rate of 7% per annum from May 7, 2010.” (FAC, ¶¶ 26, 32-34; see Code
Civ. Proc., § 337a; see also Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460
[“The only essential allegations of a common count are ‘(1) the statement of indebtedness in a
certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment.’”];
see also Interstate Group Administrators, Inc. v. Cravens, Dargan & Co. (1985) 174
Cal.App.3d 700, 708 ; see also HSBC Bank Nevada, N.A. v. Aguilar (2012) 205 Cal. App. 4th
Supp. 6, 11-12; see also Weil & Brown, Cal. Practice Guide: Civ. Proc. Before Trial (The
Rutter Group 2013) ¶ 6:126, at p. 6-33 [noting that an open book account is a common count,
which is a notable exception to the fact pleading requirement].)
SafeNet’s demurrer to the sixth cause of action of the FAC on the grounds of failure to
allege sufficient facts to state a cause of action and uncertainty is OVERRULED.
While SafeNet states in its demurrer that it demurs to the sixth cause of action of the
FAC on the ground of uncertainty, it offers no argument in support thereof in its memorandum
of points and authorities. (See Cal. Rules of Court, rules 3.1112(a) and 3.1113(a)-(b) [motion
must be supported by a memorandum stating, inter alia, “the law, evidence and arguments
relied on”; court “may construe the absence of a memorandum …, in the case of a demurrer, as
a waiver of all grounds not supported”]; see also Golden Day Schools, Inc. v. Department of
Education (1999) 69 Cal.App.4th 681, 695, fn. 9 [“An issue merely raised by a party without
any argument or authority is deemed to be without foundation and requires no discussion.”].)
Additionally, the following allegations in the FAC are sufficient to state a claim for an
account stated: “[w]ithin four (4) years last past, an account was stated in writing between
Plaintiff and defendants by which it was agreed that defendants were indebted to Plaintiff, in
the sum of $139,049.21 for services rendered by Plaintiff to and for defendants at defendants’
special request;” “[n]o part of said sum has been paid, although demand therefore has been
made;” and “[t]here is now due, owing and unpaid the sum of $139,049.21, plus interest
thereon at the rate of 7% per annum from May 7, 2010.” (FAC, ¶¶ 34-36; see Farmers Ins.
Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460; see also Gleason v. Klamer (1980) 103
Cal.App.3d 782, 786 [“An account stated is an agreement based on the prior transactions
between the parties, that the items of the account are true and that the balance struck is due and
owing from one party to another.”]; see also Block v. D.W. Nicholson Corp. (1947) 77
Cal.App.2d 739, 746.)
The Court will prepare the order.
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Case Name: Qarmout v. JPMorgan Chase Bank, N.A., et al.
Case No.:
1-14-CV-263862
This is an action regarding statements made in the course of a denial of a loan
modification. On January 27, 2005, plaintiff Elias Qarmout (“Plaintiff”) entered into a loan
agreement with Washington Mutual Bank, FA in the amount of $382,691.00. (See first
amended complaint (“FAC”), ¶ 16, Exh. A.) Defendant JPMorgan Chase Bank, N.A.
(“Chase”) subsequently became the servicer of the loan, and on November 12, 2009, Chase
recorded a notice of default. (See FAC, ¶¶ 17-18.) Plaintiff believes that the declaration
regarding default is void because Plaintiff believes that Chase was not the mortgagee,
beneficiary or authorized agent, and the declaration “does not set forth which ‘necessary
requirement’ was met by the alleged beneficiary.” (FAC, ¶ 18.) On January 10, 2010, Plaintiff
received an email from Karen White of Chase indicating that she was “waiting for QU to
approve the trial plan,” but subsequently notified Plaintiff via a phone call that the loan
modification was denied. (See complaint, ¶ 20.) Plaintiff believes that the stated reason for the
loan modification—that Plaintiff had a prior trial period loan modification—was false. (Id.)
Plaintiff resubmitted for another loan modification, but was again rejected on May 5,
2011, based on net present value—a value that Plaintiffs contend was miscalculated. (Id.)
Plaintiffs responded to the May 5, 2011 correspondence, and on December 27, 2011, Plaintiff
received a letter stating that he was not eligible for a loan modification under HAMP and could
not verify his income, employment, assets and/or property occupancy. (Id.) In February 2012,
Plaintiff went to a Chase branch to again obtain a loan modification. (Id.) In March 2012,
after being told that he was approved for a loan modification, he was then told that the
application for a loan modification was denied. (Id.) On April 19, 2012, Plaintiff received a
letter stating that his loan modification request was denied, indicating that he did not complete
the terms of the trial period plan. (Id.)
On July 25, 2012, Plaintiff filed an action against Chase for wrongful foreclosure. (See
FAC, ¶ 21.) During the prior litigation, Chase represented to Plaintiff that they would review
his mortgage loan for purposes of a loan modification, but indicated that they could not review
his request while the case was pending, and on December 21, 2013, Plaintiff dismissed the
prior action, and proceeded to negotiate a loan modification with Chase as promised. (See
FAC, ¶¶ 22-23.) On April 11, 2014, a substitution of trustee was recorded by ALAW, and
ALAW also recorded a notice of trustee sale. (See complaint, ¶¶ 24-25.) On May 30, 2014,
defendant California Reconveyance Company (“CRC”) conducted a trustee sale on the subject
property, and then, on June 6, 2014, Khanh N. Haynh purchased the subject property. (See
FAC, ¶ 28.)
On August 4, 2014, Plaintiff filed the FAC against Chase, CRC and ALAW, asserting
causes of action for: wrongful foreclosure, quiet title, slander of title, cancellation of
instruments, negligence, unfair business practices, and declaratory relief. 1 Chase and CRC
demur to each cause of action of the FAC.
1
On August 11, 2014, Plaintiff filed another complaint against Chase, CRC, ALAW and Huynh in case number 114-CV-269239. That case has been dismissed.
Demurring defendants’ request for judicial notice is GRANTED. (See Alfaro v.
Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356,
1382, quoting Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.
App. 4th 1106, 1117; see also Evans v. California Trailer Court, Inc. (1994) 28 Cal.App.4th
540, 549; see also Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265
(stating that “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 a 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”); see also Stormedia Inc. v.
Super. Ct. (Werczberger) (1999) 20 Cal.4th 449, 457, fn.9; see also Evid. Code § 452, subds.
(c), (d), (h).)
First cause of action for wrongful foreclosure
The first cause of action alleges that “none of the Defendants in this action had the right
to declare default, cause notices of default to be issued or recorded, or foreclose on Plaintiff’s
interest in the Subject Property… [because] JPMorgan Chase… did not own the loans or the
corresponding notes at the time of the foreclosure sale.” (FAC, ¶ 35.) The possession of the
note argument is without merit. (See Pagtalunan v. Reunion Mortgage Inc. (N.D.Cal. 2009)
2009 U.S. Dist. LEXIS 34811*1, *6., quoting Putkkuri v. Recontrust Co. (S.D. Cal. 2009)
2009 U.S. Dist. LEXIS 32 *1, *5 (stating that “[p]roduction of the original note is not required
to proceed with a non-judicial foreclosure”); see also Neal v. Juarez (S.D.Cal. July 23, 2007
No. 06CV0055) 2007 U.S. Dist. LEXIS 98068 *1, *25 (stating that “the allegation that the
trustee did not have the original note or had not received it is insufficient to render the
foreclosure proceeding invalid”); see also Kennedy v. Lehman Bros. Bank (S.D.Cal. 2010)
2010 U.S. Dist. LEXIS 116415 *1, *10 (stating that “it is well established that a lender need
not produce the original note to initiate non-judicial foreclosure proceedings”); see also
Nguyen v. Wells Fargo Bank, N.A. (N.D.Cal. 2010) 2010 U.S. Dist. LEXIS 113246 *1, 35-36;
see also Castaneda v. Saxon Mortgage Services, Inc. (E.D.Cal. 2009) 687 F. Supp. 2d 1191,
1201 (stating that “[u]nder California law, there is no requirement for the production of the
original note to initiate a non-judicial foreclosure”); see also Benham v. Aurora Loan Services
(N.D.Cal. 2009) 2009 U.S. Dist. LEXIS 91287 *1, *3, fn.3 (rejecting argument that loan
servicer Aurora was a “stranger” or “unrelated third party” to the loan transaction); see also
CWCapital Asset Mgmt., LLC v. Chicago Properties, LLC (7th Cir. 2010) 610 F.3d 497, 501
(stating that the servicer has the equitable ownership of a claim, as delegated by the Pooling
and Servicing Agreement); see also Greer v. O’Dell (11th Cir. 2002) 305 F.3d 1297, 1302
(stating that “[a] servicer is a party in interest in proceedings involving loans which it services);
see also Hafiz v. Greenpoint Mortgage Funding, Inc. (N.D.Cal. 2009) 652 F. Supp. 2d 1039,
1043 (stating that “California law does not require possession of the note as a precondition to
non-judicial foreclosure under a deed of trust”).)
As demurring defendants argue, it appears that Plaintiff alleges that the defendants
lacked authority to institute foreclosure proceedings based on the securitization of the loan.
(See complaint, ¶¶ 35-36.) However, Plaintiff lacks standing to challenge the securitization.
(See Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 515 (stating that as
“an unrelated third party to the alleged securitization, and any other subsequent transfers of the
beneficial interest under [a] promissory note, [a plaintiff] lacks standing to enforce any
agreements, including the investment trust’s pooling and servicing agreement, relating to such
transactions… [f]urthermore, even if any subsequent transfers of the promissory note were
invalid, [plaintiff] is not the victim of such invalid transfers because [his] obligations under the
note remained unchanged”); see also Siliga v. Mortgage Electronic Registration Systems, Inc.
(2013) 219 Cal.App.4th 75, 85 (stating that “[t]he assignment of the deed of trust and the note
did not change the [plaintiffs’] obligations under the note, and there is no reason to believe that
Accredited as the original lender would have refrained from foreclosure in these
circumstances… [and thus] the [plaintiffs] have no standing to complain about any alleged lack
of authority or defective assignment”); see also Armeni v. America’s Wholesale Lender
(C.D.Cal. 2012) 2012 U.S. Dist. LEXIS 24004 *1, *7-*8 (stating that “plaintiff lacks standing
to challenge the process by which his mortgage was (or was not) securitized because he is not a
party to the PSA”), citing Bascos v. Fed. Home Loan Mortgage Corp. (C.D.Cal. 2011) 2011
U.S. Dist. LEXIS 86248 *1, *4-*6; see also Deerinck v. Heritage Plaza Mortgage, Inc.
(E.D.Cal. 2012) 2012 U.S. Dist. LEXIS 45728 *1, *15-*16 (stating that “Plaintiffs lack
standing to challenge the process in which their mortgage was securitized because they are not
a party to the PSA”); see also Junger v. Bank of America, N.A. (C.D.Cal. 2012) 2012 U.S. Dist.
LEXIS 23917 *1, *7-*9 (same); see also Cleveland v. Aurora Loan Servs., LLC (N.D. Cal.
May 24, 2011) 2011 U.S. Dist. LEXIS 55168 *1, *11-13 (stating that “[s]ince plaintiff has no
right of action under HAMP to challenge the denial of his request for loan modification, the
court would have no basis upon which to make a judicial determination… [in accordance with
the plaintiff’s] cause of action for declaratory relief… [and s]imilarly, plaintiff has no standing
to assert a claim of breach of contract or promissory estoppel based on alleged HAMP
violations, as he is not (contrary to what he alleges) a third-party beneficiary of any HAMP
contract between a servicer or lender and the government… [and f]inally, the alleged HAMP
violations are not actionable, and thus cannot be used to support a claim under § 17200”).)
In opposition, Plaintiff does not dispute those assertions. Rather, Plaintiff argues that
the first cause of action states facts sufficient to constitute a violation of Civil Code § 2923.5.
The obvious problem is that the FAC alleges that the trustee sale has already occurred, and
after a sale, section 2923.5 provides no relief. (See Stebley v. Litton Loan Servicing, LLP
(2011) 202 Cal.App.4th 522, 526 (stating that “Civil Code section 2923.5 does not provide for
damages, or for setting aside a foreclosure sale, nor could it do so without running afoul of
federal law, that is, the Home Owners’ Loan Act; also stating that “the sole available remedy is
‘more time’ before a foreclosure sale occurs… [a]fter the sale, the statute provides no relief”;
also stating that “the statute does not—and legally could not—require the lender to modify the
loan”); see also Hamilton v. Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4th 1602,
1616 (stating that “the right of action ‘is limited to obtaining a postponement of an impending
foreclosure to permit the lender to comply with section 2923.5’”); see also Phat Ngoc Nguyen
v. Wells Fargo Bank, N.A. (N.D.Cal. 2010) 749 F. Supp. 2d 1022, 1033 (stating that “relief
under § 2923.5 is limited to a postponement of foreclosure”); see also Rockridge Trust v. Wells
Fargo, N.A. (N.D.Cal. 2013) 985 F. Supp. 2d 1110, 1153 (stating that “the remedy for a §
2923.5 violation is limited to postponement of the foreclosure sale to allow compliance…
[s]ection 2923.5 does not create a right to a loan modification, nor does it have any effect on a
completed foreclosure sale”); see also Adesokan v. United States Bank, N.A. (E.D.Cal. 2011)
2011 U.S. Dist. LEXIS 125591 *1, *10-*11 (stating that “the only remedy available
under Section 2923.5 is a postponement of the sale before it happens”); see also Morrison v.
Wachovia Mortg. Corp. (C.D.Cal. 2012) 2012 U.S. Dist. LEXIS 38847 *1, *27; see also
Forsythe v. Wells Fargo Bank, N.A. (C.D.Cal. 2012) 2012 U.S. Dist. LEXIS 44031 *1, *10.)
Plaintiff fails to show how he might possibly amend his first cause of action. (See
Goodman v. Kennedy (1976)18 Cal. 3d 335, 349 (stating that “Plaintiff must show in what
manner he can amend his complaint and how that amendment will change the legal effect of
his pleading”), quoting Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636; see also Hendy v.
Losse (1991) 54 Cal. 3d 723, 742 (stating that “the burden is on the plaintiff… to demonstrate
the manner in which the complaint might be amended”).) The demurrer to the first cause of
action is SUSTAINED without leave to amend.
Second cause of action for quiet title
Plaintiff does not oppose the demurrer to the second cause of action. (See Pl.’s
opposition to demurrer, p.4:11-12 (stating that “Plaintiff is no longer seeking title to the
Subject Property”).) The California Supreme Court has stated that “[i]t is settled in California
that a mortgagor cannot quiet his title against the mortgagee without paying the debt
secured.” (Shimpones v. Stickney (1934) 219 Cal. 637, 649.) Plaintiff does not assert that he is
able to tender the full amount of debt owed. The demurrer to the second cause of action for
quiet title is SUSTAINED without leave to amend.
Third cause of action for slander of title
Plaintiff’s opposition also does not address the demurrer to the third cause of action for
slander of title. (See Goodman v. Kennedy (1976)18 Cal. 3d 335, 349 (stating that “Plaintiff
must show in what manner he can amend his complaint and how that amendment will change
the legal effect of his pleading”), quoting Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636;
see also Hendy v. Losse (1991) 54 Cal. 3d 723, 742 (stating that “the burden is on the
plaintiff… to demonstrate the manner in which the complaint might be amended”).)
Plaintiff has not alleged facts that are unprivileged. (See Civ. Code § 2924, subd. (d)
(stating that “[t]he mailing, publication and delivery of notices as required by [the foreclosure
statutes], [p]erformance of the procedures set forth in [the foreclosure statutes, and
p]erformance of the functions and procedures set forth in [the foreclosure statutes if those
functions and procedures are necessary to carry out the duties described…shall constitute
privileged communications pursuant to Section 47”); see also Kachlon v. Markowitz (2008)
168 Cal.App.4th 316, 333 (stating that “[w]e hold that section 2924 deems the statutorily
required mailing, publication, and delivery of notices in nonjudicial foreclosure, and the
performance of statutory nonjudicial foreclosure procedures, to be privileged communications
under the qualified common interest privilege of section 47, subdivision (c)(1)”); see also
Carswell v. JPMorgan Chase Bank N.A. (9th Cir. 2012) 500 Fed. Appx. 580, 583 (dismissing
slander of title claim, stating that “[s]tatements made by Defendants in connection with the
statutory nonjudicial foreclosure proceedings were privileged and cannot support a claim for
slander of title”); see also Ananiev v. Aurora Loan Servs., LLC (N.D.Cal. July 10, 2012) 2012
U.S. Dist. LEXIS 95441 *1, *19-*20 (stating that “any notice or communication that is issued
in the course of performing duties related to the non-judicial foreclosure sale is privileged and
not actionable”), quoting Richards v. Bank of America, N.A. (N.D.Cal. Aug. 13, 2010) 2010
U.S. Dist. LEXIS 92389 *1, *10-*11.) The demurrer to the third cause of action is
SUSTAINED without leave to amend.
Fourth cause of action for cancellation of instruments and seventh cause of action for
declaratory relief
Plaintiff does not oppose the demurrer to the fourth and seventh causes of action. (See
Pl.’s opposition to demurrer, p.4:11-12 (stating that “Plaintiff is no longer seeking title to the
Subject Property”).) The demurrer to the fourth and seventh causes of action is SUSTAINED
without leave to amend.
Fifth cause of action for negligence
The fifth cause of action alleges that Chase “acting as Plaintiff’s lenders and/or
servicers, had a duty to exercise reasonable care and skill to maintain proper and accurate loan
records and to discharge and fulfill the other incidents attendant to the maintenance, account
and servicing of loan records … [and that Chase] breached their duty of care and skill to
Plaintiff in the servicing of Plaintiff’s loans by… failing to disclose to Plaintiff that it was
foreclosing on Plaintiff’s Subject Property while telling him the opposite, treating Defendant
JPMorgan Chase as a separate entity to confuse and mislead Plaintiff, preparing and recording
false documents, and foreclosing on the Subject Property without having the legal authority to
do so.” (FAC, ¶¶ 61-62.)
“Liability to a borrower for negligence arises only when the lender ‘actively
participates’ in the financed enterprise ‘beyond the domain of the usual money lender.”
(Wagner v. Benson (1980) 101 Cal.App.3d 27, 35, quoting Connor v. Great Western Savings &
Loan Assn. (1968) 69 Cal.2d 850, 864; see also Nymark v. Heart Fed. Savings & Loan Assn.
(1991) 231 Cal.App.3d 1089, 1096 (stating that “as a general rule, a financial institution owes
no duty of care to a borrower when the institution’s involvement in the loan transaction does
not exceed the scope of its conventional role as a mere lender of money”); see also Rufini v.
CitiMortgage, Inc. (2014) 227 Cal.App.4th 299, 312 (quoting Nymark); see also Ragland v.
U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 206 (same).) Certainly, the
maintenance of proper and accurate loan records and the discharge and fulfillment of duties of
those loan records are within the ambit of a usual money lender.
In opposition, Plaintiff makes arguments regarding a breach of duty with regards to the
loan modification process, rather than the alleged breach that was alleged in the fifth cause of
action, now asserting that “Defendants carelessly and negligently denied Plaintiff’s
applications for loan modifications several times based on factual fabrications and faulty
calculations.” (See Pl.’s opposition to demurrer, pp.7:4-26, 8:1-26, 9:1-4.) Plaintiff primarily
relies on two recent California cases: Lueras v. BAC Home Loans Servicing, LP (2013) 221
Cal.App.4th 49 (“Lueras”) and Alvarez v. BAC Home Loans Servicing, L.P. (2014) 228
Cal.App.4th 941 (“Alvarez”). Curiously, Lueras plainly states that “a loan modification is the
renegotiation of loan terms, which falls squarely within the scope of a lending institution’s
conventional role as a lender of money… [and] the Biakanja factors do not support imposition
of a common law duty to offer or approve a loan modification.” (Lueras, supra, 221
Cal.App.4th at p.67.) Lueras also notes that “[i]f the modification was necessary due to the
borrower’s inability to repay the loan, the borrower’s harm, suffered from denial of a loan
modification, would not be closely connected to the lender’s conduct. If the lender did not
place the borrower in a position creating a need for a loan modification, then no moral blame
would be attached to the lender’s conduct.” (Id.)
The FAC does not allege and the opposition does not argue that Defendants placed the
borrower in a place that created a need for a loan modification. (See Goodman v. Kennedy
(1976)18 Cal. 3d 335, 349 (stating that “Plaintiff must show in what manner he can amend his
complaint and how that amendment will change the legal effect of his pleading”), quoting
Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636; see also Hendy v. Losse (1991) 54 Cal. 3d
723, 742 (stating that “the burden is on the plaintiff… to demonstrate the manner in which the
complaint might be amended”).) The FAC does not allege and the opposition does not argue,
for example, that Defendants made material misrepresentations upon which Plaintiff relied and
caused damages to Plaintiff, or that Defendants did anything wrongful that made him unable to
make his original monthly payments. Rather, the FAC appears to allege that Defendants
breached the duty to “determine modification approvals [and] exercise reasonable care and
skill in timely and accurately responding to customer requests and inquiries”—a purported
duty that Lueras plainly rejected. (Lueras, supra, 221 Cal.App.4th at pp.62-69.) As demurring
defendants argue, Lueras also does not support Plaintiff’s position.
Alvarez, cites to Lueras, and also analyzes the Biakanja factors with regards to a
common law duty. As already stated, Lueras suggests that there is no duty; thus, to the extent
that Alvarez intends to contradict Lueras, it would create a split of authority. Nevertheless,
Alvarez is factually distinguishable. Here, unlike Alvarez, there are no facts that suggest the
closeness of the connection between the defendant’s conduct and the injury suffered, or the
moral blame attached to the defendant’s conduct—the factors cited by Lueras in determining
the non-existence of a duty to “determine modification approvals [and] exercise reasonable
care and skill in timely and accurately responding to customer requests and inquiries.”
Plaintiff also does not show how he might possibly amend his claim. (See Goodman v.
Kennedy (1976)18 Cal. 3d 335, 349 (stating that “Plaintiff must show in what manner he can
amend his complaint and how that amendment will change the legal effect of his pleading”),
quoting Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636; see also Hendy v. Losse (1991)
54 Cal. 3d 723, 742 (stating that “the burden is on the plaintiff… to demonstrate the manner in
which the complaint might be amended”).) Accordingly, the demurrer to the fifth cause of
action is SUSTAINED without leave to amend.
Sixth cause of action for unfair business practices
For reasons stated above, Plaintiff fails to allege facts showing unlawful, unfair or
fraudulent business practices. Accordingly, the demurrer to the dependent sixth cause of action
is SUSTAINED without leave to amend.
The Court will prepare the Order.
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Case Name: Institute of Med. Ed., Inc. v. Western Assn. of Schools and Colleges, et al.
Case No.:
1-13-CV-253698
After full consideration of the evidence, the separate statements submitted by each party, and
the authorities submitted by each party, the court makes the following rulings:
On August 20, 2014, the Court denied plaintiff Institute of Medical Education, Inc.’s
(“IME” or “Plaintiff”) motion for summary judgment, stating:
Plaintiffs, who bear the burden of proof at trial by
preponderance of evidence, therefore “must present evidence that
would require a reasonable trier of fact to find the underlying
material fact more likely than not—otherwise he would not be
entitled to judgment as a matter of law, but would have to present
his evidence to a trier of fact.” (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 851.) To prevail on its motion for
summary judgment, or summary adjudication on any of its
claims, Plaintiff must demonstrate the amount of damages
sustained as a result of the breach of contract. (See Acoustics,
Inc. v. Trepte Construction Co. (1971) 14 Cal.App.3d 887, 913
(stating that resulting damages is an element for a breach of
contract claim); see also Quelimane Co. v. Stewart Title
Guarantee Co. (1998) 19 Cal.4th 26, 55 (stating that resulting
damages is an element for an intentional interference with
contractual relations cause of action); see also Venhaus v. Shultz
(2007) 155 Cal.App.4th 1072, 1078 (stating that resulting
damages is an element for a negligent interference with
prospective economic advantage cause of action).)
Plaintiff’s memorandum of points and authorities
contains very little argument or analysis whatsoever. Rather,
Plaintiff’s sole argument and analysis of the issue of damages is:
Defendants withdrawal of UDSOE status, and
failure to timely notify of the withdraw, caused
Plaintiff to: lose Title IV funding, lose accredit of
courses, lose teachers, lose students, become
unable to pay rent, become unable to pay for
equipment and services provided in the sum of
$21,275,000 (Sunil Decl., Exhibit 8).
(Pl.’s memorandum of points and authorities in support of
motion for summary judgment, or in the alternative, for summary
adjudication (“Pl.’s memo”), p.24:16-22; id. at p.26:27-28
(stating that “Plaintiffs incorporates by reference the evidence
and arguments from elements 4 & 5 from the Breach of Contract
discussion”); id. at p.29:24-25 (in discussion regarding
promissory estoppel claim, stating that “IME suffered substantial
detriment as a result of the false representations (see elements 4
& 5 under the Breach of Contract”).)
Likewise, the separate statement’s undisputed material
fact in support of its damages states the identical language. (See
UMF 17, issue one; UMF 17, issue two; UMF 7, issue three;
UMF 5, issue four; UMF 7, issue five.)
Plaintiff’s lone evidence in support of its motion provides
two different means for determining damages with two different
amounts, and Plaintiff’s motion is seeking the higher of the two
figures. At minimum, Plaintiff’s own evidence has created a
triable issue of material fact. (See Sunil Vethody decl. in support
of motion for summary judgment, exh. 8 (“Keyes report”).)
Accordingly, the motion for summary judgment and motion for
summary adjudication of each cause of action cannot be granted.
Nevertheless, Plaintiff’s evidence also fails to
demonstrate that it is entitled to a judgment on the entire
$21,275,000 claimed. Accordingly, Plaintiff fails to meet its
initial burden and the motion for summary judgment and
alternate motion for summary adjudication of each cause of
action is DENIED.
(August 20, 2014 order re: Pl.’s motion for summary judgment, pp.2:14-27, 3:1-27.)
On September 16, 2014, Plaintiff filed a “renewed motion for summary judgment, or
alternatively, summary adjudication of issues.” In support of this renewed motion, Plaintiff
filed a 25-paged supporting memorandum of points and authorities. Plaintiff did not apply to
the court for permission to exceed the 20 page limit, as required by Rule of Court 3.1113,
subdivisions (d) and (e). Plaintiff’s excessively lengthy memorandum is in addition to its
separate statement of undisputed material facts that contains 1,273 “material facts”. Plaintiff’s
motion is thus treated as a late-filed paper pursuant to Rule of Court 3.1113, subdivision (g).
Plaintiff also filed a reply brief six days before the hearing, and although technically
within the time limits of CCP 437c, the Court received the reply papers a mere two court days
prior to the hearing in light of the Thanksgiving holiday. The reply brief includes a request for
judicial notice and a declaration of Sunil Vethody, which itself attaches a number of documents
as evidence. The request for judicial notice is DENIED. The Court also will not consider the
evidence filed for the first time with their reply papers. (See San Diego Watercrafts, Inc. v.
Wells Fargo, N.A. (2002) 102 Cal.App.4th 308, 316 (stating that considering such evidence
violates due process rights).)
In the supporting memorandum, Plaintiff asserts that “[n]ew information allows
renewal motions under C.C.P. § 1008 and C.C.P. 437c(f)(2).” (Pl.’s memorandum of points
and authorities in support of renewed motion for summary judgment (“Pl.’s memo”), p.15:1-2.)
However, Code of Civil Procedure section 1008 requires that a motion to reconsider the matter
based upon new or different facts to be made “within 10 days after service upon the party of
written notice of entry of the order. Plaintiff’s renewed motion is tardy. (See Wiz Technology,
Inc. v. Coopers & Lybrand LLP (2003) 106 Cal.App.4th 1, 16-17 (stating that a motion for
reconsideration of an order on a motion for summary judgment filed one day late is beyond
statutory 10-day limitation for such a motion); see also Le Francois v. Goel (2005) 35 Cal.4th
1094, 1108 (stating that “[u]nless the requirements of section 437c, subdivision (f)(2),
or 1008 are satisfied, any action to reconsider a prior interim order must formally begin with
the court on its own motion”).)
The Court declines to reconsider the prior order on its own motion. Moreover, the
motion fails to state any explanation as to why Plaintiff failed to produce the “new facts” at an
earlier time. (See New York Times Co. v. Super. Ct. (Wall Street Network, Ltd.) (2005) 135
Cal.App.4th 206, 212 (stating “[a] party seeking reconsideration also must provide a
satisfactory explanation for the failure to produce the evidence at an earlier time”); see also
Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 689 (stating that motions pursuant to section
1008 are “based on newly discovered evidence, ‘not only new evidence but also a satisfactory
explanation for the failure to produce that evidence at an earlier time’”).) The renewed motion
for summary judgment, or in the alternative, for summary adjudication, is DENIED. 2
Defendants’ request for judicial notice is not the basis for this Court’s order and is
DENIED.
The Court will prepare the order.
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2
Even if the Court were to reconsider Plaintiff’s motion, Plaintiff does not meet its initial burden. Plaintiff seeks
to adjudicate 30 purported “issues”; however, these purported issues are not “issues of duty” but rather seek to
adjudicate liability. (See Paramount Petroleum Corp. v. Super. Ct. (Building Materials Corp. of America) (2014)
227 Cal.App.4th 226, 243 (stating that “Code of Civil Procedure section 437c makes no provision for a partial
summary judgment as to liability”).) Plaintiff does not present a stipulation by the parties to summarily adjudicate
issues that do not completely dispose of a cause of action, an affirmative defense, or an issue of duty, pursuant to
Code of Civil Procedure section 437c, subdivision (s). Moreover, most of these issues are not separately
addressed by the supporting memorandum.
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Case Name: Carlos Costa and Nadine M. Costa v. Sejay Kewal, et al.
Case No.:
1-13-CV-256045
Plaintiffs Carlos Costa and Nadine Costa (“Plaintiffs”) filed a motion for leave to file a
verified second amended complaint.
On November 25, 2014, Defendants filed a “Sur Reply” to Plaintiffs reply in support of
the motion. No statutory provision permits Defendants to file a Sur Reply in response to a
reply and the Court has not considered the “Sur Reply.”
To be timely, a motion must be served and filed at least 16 court days before the
hearing. The motion was not filed until November 6, less than 16 court days before the
hearing, and was served on November 3, by mail and “electronic mail,” although there is a
dispute whether Defendants agreed to accept email service of pleadings as required by the
Code. Although Plaintiffs contend that the fact that Defendants served their opposition by
facsimile suggests a prior agreement to serve by facsimile or electronic mail, the Code
expressly requires the service of opposition and reply papers by hand delivery, overnight
delivery, or facsimile, even without an agreement for service by facsimile. See CCP 1005(c).
However, the Court finds it unnecessary to resolve this dispute, as Plaintiffs have failed
to comply with the requirements for a motion to amend a complaint. A motion to amend
“must” state what allegations are to be added or deleted by page, paragraph and line number.
Rules of Court, Rule 3.1324(a). Plaintiffs have not explained what language was added or
deleted, and the motion to amend is DENIED without prejudice.
Neither party has explained if an amended pleading (or denial of this motion) will
affect the pending motion for summary adjudication. Counsel are ordered to appear to address
this issue. If Plaintiffs persuade the Court that the complaint should be amended before the
motion for summary adjudication is heard, the Court will consider whether to continue the
12/4/14 hearing.
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