Notice RulingCal. Super. - 6th Dist.August 13, 202010 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 200V369368 Santa Clara - Civil LARS T. FULLER (No. 141270) JOYCE K. LAU (No. 267839) THE FULLER LAW FIRM, P.C. 60 N0. Keeble Ave. San Jose, CA 95126 Telephone: (408)295-5595 Facsimile: (408) 295-9852 HARRIS L. COHEN (No. 119600) HARRIS L. COHEN, APC 5305 Andasol Avenue Encino, CA 913 16 Telephone: (818) 905-5599 Facsimile: (818) 905-5660 Attorneys for Defendant, Milestone Financial, LLC dba MERS FundI Electronically Filed by Superior Court of CA, County of Santa Clara, on 1l21/2021 12:50 PM Reviewed By: A. Floresca Case #20CV369368 Envelope: 5684920 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA Rabindra Chakraborty; Ruma Chakraborty, Plaintiffs, V. Mortgage Lender Servicers, Inc., Milestone Financial, LLC; MERS Fund I; and Does 1-10, inclusive, Defendants. CASE No. 20CV369368 NOTICE OF RULING GRANTING MILESTONE FINANCIAL, LLC’S MOTIONS TO COMPEL Date: January 19, 2021 Time: 9:00 a.m. Dept. 20 A. Flores 3 The hearing 0n Defendant and movant, Milestone Financial, LLC dba MERS Fund I’s (I) Motion to Deem Requests for Admission Admitted and for $1,050.50 0f Monetary Sanctions against Rabindra Chakraborty; (II) Motion to Compel a Written Response Without Objections t0 the Special Interrogatories and for $960.00 of Monetary Sanctions against Rabindra Chakraborty and (III) Motion to Compel a Written Response Without Obj ections and Production of Documents and for $960.00 of Monetary Sanctions against 1 NOTICE OF RULING GRANTING MILESTONE FINANCIAL, LLC’S MOTIONS TO COMPEL 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Rabindra Chakraborty was heard by the Court on January 19, 2021 at 9:00 a.m. Joyce Lau, Esq. 0f The Fuller Law Firm, P.C. appeared for Milestone Financial, LLC. No other appearances were noted on the record. Prior t0 the scheduled hearing the Court issued its tentative ruling, Which is attached to this Notice. N0 party having requested oral argument, the tentative ruling became the final ruling on the matter. Dated: January 21, 2021 The Fuller Law Firm, P.C. Joyce K. Lau, Esq. Attorney for Defendant Milestone Financial, LLC dba MERS FundI 2 NOTICE OF RULING GRANTING MILESTONE FINANCIAL, LLC’S MOTIONS TO COMPEL EXHIBIT 1 ”The Opposing Counsel on the Second-Biggest Case of Your Life Will Be the Trial Judge 0n the Biggest Case of Your Life.” -Common Wisdom. --00000- DATE: Tuesday, 19 January 2021 TIME: 9:00 A.M. All Courts of California celebrate the diversity of the attorneys and the litigants who appear in our Courts. Do not hesitate to correct the Court or Court Staff concerning the pronunciation of any name or how anyone prefers to be addressed. As this Court is fond of saying, “with a name like mine, | try to be careful how | pronounce the names of others.” If your client is with you, please inform the Court how your client would prefer to be introduced. The Court encourages the use of diacritical marks, multiple surnames and the like for the names of attorneys, litigants and in court papers. The Local Civil Rules can be found at this link: https://www.scscourt.org/court_divisions/civi|/civi|_rules/civil_ru|es.shtm| This Court expects all counsel and litigants to comply with the Tentative Rulings Procedures that are outlined in Local Civil Rule 7(E) and California Rules of Court, rule 3.1308. If the Court has not directed argument, oral argument must be permitted only if a party notifies: 1. all other parties by 4:00 p.m. on the court day before the hearing of the party's intention to appear AND 2. the Court by calling (408) 808-6856 before 4:00 pm on the court day before the hearing of the party's intention to appear . A party must notify all other parties by telephone or in person. A failure to timely notify this Court and/or the opposing parties may result in the tentative ruling being the final order in the matter. Join Zoom Meeting Join by phone: One tap mobile httpszllscu.zoom.us/i/96144427712?p +1 (669) 900-6833 +16699006833,,961 4442 7712# wd=cW1Jqu5desc$NKNFBpSiIEam5xUT09 Meeting ID: 961 4442 7712 Meeting ID: 961 4442 7712 Password: 01 7350 VIRTUAL ACCESS INTO THE COURTHOUSE. While the Court will still allow physical appearances, all litigants are encouraged to use the Zoom platform for Law & Motion appearances and Case Management Conferences. Use of other virtual platform devices will make it difficult for all parties fully to participate in the hearings. Please note the requirement of entering a password (highlighted above.) SOCIAL DISTANCING PROTOCOLS In light of COVID-19-related health concerns and due to the Order of the Public Health Department, Department 20 has resumed Law & Motion calendars but with safe-distancing protocols. Please check this tentative rulings page before making any appearance. Any uncontested matter or matters to which stipulations have been reached can be processed through the Clerk in the usual manner. Please include a proposed order. Appearances. Please notify this Court immediately if the matter wi|| not be heard on the scheduled date. California Rules of Court, rule 3.1304(b). If a party fails to appear at a law and motion hearing without having given notice, this Coun may take the matter off calendar, to be reset only upon motion, or may rule on the matter. California Rules of Court, rule 3.1304(d). This Court expects all counsel and litigants to comply with the Tentative Rulings Procedures that are outlined in Local Civil Rule 7(E) and California Rules of Court, rule 3.1308. If the Court has not directed argument, oral argument must be permitted only if a party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party's intention to appear. A party must notify all other parties by telephone or in person. A failure to timely notify this Court and/or the opposing parties may result in the tentative ruling being the final order in the matter. A party may give notice that he or she will not appear at a law and motion hearing and submit the matter without an appearance unless this Court orders otherwise. This Court wi|| rule on the motion as if the party had appeared. California Rules of Court, rule 3.1 304(0). Revised 13 January 2021 Entry into the Courthouse. As for matters which require personal appearances, protocols concerning social distancing and facial coverings in compliance with the directives of the Public Health Officer will be enforced. Individuals who wish to access the Courthouse are advised to bring a plastic bag within which to place any personal items that are to go through the metal detector located at the doorway to the courthouse. Sign-ins will begin at about 8:30 AM. Court staff will assist you when you sign in. It wi|| help if you “rename” yourself as follows: in the upper right corner of the screen with your name you will see a blue box with three horizontal dots. Click on that and then click on the “rename" feature. You may type your name as: Line #lname/party If you are a member of the public who wishes to view the Zoom session and remain anonymous, you may simply sign in as “Public." The Santa Clara County Superior Court has established listen-only telephone Lines to allow remote access to public court proceedings. To listen to a public court proceeding in Department 20, you may dial 888-251-2909. When prompted, enter the access code number 4362730 when prompted, followed by the pound or hashtag (#) sign. Court Reporters. This Court no longer provides for Court Reporters in civil actions except in limited circumstances. If you wish to arrange for a court reporter, please use Local Form #CV-5100. A|| reporters are encouraged to work from a remote location. Please inform this Court if any reporter wishes to work in the courtroom. This session will not be recorded. No electronic recordings, video, still photography or audio capture of this live stream is allowed without the expressed, written permission of the Superior Court of California, County of Santa Clara. State and Local Court rules prohibit photographing or recording of court proceedings whether in the courtroom or while listening on the Public Access Line or other virtual platform, without a Court Order. See Local General Rule 2(A) and 2(B); California Rules of Court, rule 1.150. Protocols during the Hearings. During the calling of any hearing, this Court has found that the Zoom video platform works very well. But whether using Zoom or any telephone, it is preferable to use a landline if possible. IT IS ABSOLUTELY NECESSARY FOR ALL INDIVIDUALS TO SPEAK SLOWLY. Plaintiff should speak first, followed by any other person. A|| persons should spell their names for the benefit of Court Staff. Please do not use any hands-free mode if at all possible. Headsets or earbuds wi|| be of great assistance to minimize feedback. The Court will prepare the Final Order unless stated otherwise below or at the hearing. Counsel are to comply with California Rules of Court, rule 3.1312. TROUBLESHOOTING TENTATIVE RULINGS If you see last week’s tentative rulings, you have checked prior to the posting of the current week’s tentative rulings. You will need to either “REFRESH” or “QUIT” your browser and reopen it. If you fail to do either of these, your browser wi|| pull up old information from old cookies even after the tentative rulings have been posted. Tentative Rulings Are Continued Below. Full Orders Are 0n The Following Pages. LINE # CASE # CASE TITLE RULING LINE 1 17CV306836 Jason Flickinger vs Robert Pendergrast Order of Examination. SEE ATTACHED ORDER. LINE 2 18CV327605 Georgina Mendoza vs Doe 3, owner et aI The motion forjudgment on the pleadings is MOOT as a stipulation has been reached concerning the filing of an amended pleading. LINE 3 20CV368793 Adrian Lopez et al vs Gilroy Unified School SEE ATTACHED ORDER. District LINE 4 200V369499 Eric Kutcher, et al. v. Ahmad Javid, et al. SEE ATTACHED ORDER. LINE 5 18CV335946 Paul Elias v. International Insurance Company Defendant/ cross-complainant CIC’s motion for summaryjudgment on its of Hannover SE et al cross-complaint for rescission is DENIED. SEE ATTACHED ORDER. LINE# CASE # CASE TITLE RULING LINE 6 20CV369368 Rabindra Chakrabony et al v. Mortgage Lender Servicers, |nc., et al The motion of Tony Cara, Esq. and CDLG, PC to be relieved as counsel for plaintiffs is GRANTED. The Order will take effect upon the filing and service of the executed order of this Court and an order that complies with the Rules of Court. SEE ATTACHED ORDER. LINE 7 200V369368 Rabindra Chakraborty et al v. Mortgage Lender Servicers, Inc. Et al SEE LINE 6. LINE 8 20CV369368 Rabindra Chakraborty et al v. Mortgage Lender Servicers, Inc. Et al The motion of Milestone Financial LLC to compel plaintiffs to respond to special interrogatories and request for production of documents is GRANTED. Plaintiffs are to provide code compliant responses within 30 days of the date of the filing and service of this Order. The motion of Milestone Financial LLC to deem requests for admissions served upon both plaintiffs to be admitted is GRANTED. The request of Milestone Financial LLC for monetary sanctions is code compliant and GRANTED. Plaintiffs shall jointly pay the sum of $3,060.00 to counsel for Milestone Financial LLC within 30 days of the date of the filing of service 0f this Order. SEE ATTACHED ORDER. LINE 9 20CV369368 Rabindra Chakraborty et al v. Mortgage Lender Servicers, Inc. Et al SEE LINE 8. LINE 10 20CV369368 Rabindra Chakraborty et al v. Mortgage Lender Servicers, Inc. Et al SEE LINE 8. LINE 11 1 QCV34491 8 Arvind Agarwal et al vs David Herrera et al NO TENTATIVE RULING. The parties are to advise this Court via the tentative ruling protocol if they wish to argue the matter on the merits or submit on the papers. LINE 12 ZOCV368963 Elsa Morales De Lopez vs Rasier LLC et al The petition is GRANTED. Neither side will be entitled to sanctions. Both sides are reminded to read the banner at the top of this Court’s Tentative Ruling page. The matter will be continued for an ADR review on 29 July 2021 at 10:30 AM in this Department. This Court wi|| rule on the matter on the basis of the papers and supporting affidavits and without oral argument. (Ensher, Alexander & Barsoom v. Ensher(1964) 225 Cal.App.2d 318, 325, 327; Wilburn v. Oakland Hospital (1989) 21 3 Cal.App.3d 1107, 1111; 6 Witkin, California Procedure (5th Ed. 2020), Proceedings Without Trial, § 36.) The parties should follow the tentative ruling protocol if they wish to contest the foregoing. SEE ATTACHED ORDER. LINE 13 20CV368963 Elsa Morales De Lopez vs Rasier LLC et aI SEE LINE 12. LINE 14 17CV3071 52 State Farm Mutual Automobile Insurance Company vs Sergio-Aarron Medina-Milan et al SEE ATTACHED ORDER. LINE 15 20CV368533 Noushin Moghbel v. Rajiv Salhotra et al. NO TENTATIVE RULING. The parties are to advise this Court via the tentative ruling protocol if they wish to argue the matter on the merits or submit on the papers. LINE 16 LINE 17 UNE# CASE# CASETWLE RUUNG UNE18 UNE19 UNE20 UNE21 UNE22 UNE23 UNE24 UNE25 UNE26 UNE27 UNE28 UNE29 UNE30 - 00000 - Calendar Line 1 - 00000 - Calendar Line 2 - 00000 - 19 January 2021 Order On Demurrer to Cross-Complaint. Page 1 of 43 Calendar Line 3 SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA DEPARTMENT 20 161 North First Street, San Jose, CA 95113 408.882.2320 ' 408.882.2296 (fax) smanoukian@scscourt.org http://www.scscourt.org (PorClerk's UseOnly) CASE NO.: 20CV368793 Adrian Lopez, et a1. v. Gilroy Unified School Dist. DATE: 19 January 2021 TIME: 9:00 am LINE NUMBER: 3 This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 20 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 20 at 408.808.6856 and the opposing party no later than 4:00 PM on 15 January 2021. Please specify the issue to be contested when calling the Court and Counsel. Order on the Demurrer of Defendant Gilroy Unified School District to Plaintifis’ First Amended Complaint. |. Statement of Facts. Plaintiffs Adrian Lopez (“Adrian”) and Esther Brambila Lopez (“Esther”) (collectively, “Plaintiffs”)1 filed this complaint against defendant Gilroy Unified School District (“the District”) on 28 July 2020.2 Plaintiffs allege they entered into written contracts with the District in 1996 and 2004. (First Amended Complaint [“FAC”] at 11 5, Exs. A-B.) Under these contracts, the District agreed to allow Plaintiffs to live at a Mobile Home owned by Plaintiffs (the “Mobile Home”) on the District’s property indefinitely under the District’s Vandal Watch Program. (Id. atfl 6.) In order for Plaintiffs to be treated as homeowners, the 2004 Contract provides that if the District should elect to terminate the Contract so it could put the land upon which Plaintiffs’ Mobile was placed for another use (the “change of use”), then the District would offer to pay Plaintiffs the fair market value of the Mobile Home (less 50% of the demolition or relocation costs) without considering the effect of the change of use on the value of the Mobile Home (the “Agreed Price”). (FAC at 11 7.) As a consequence, Plaintiffs and the District intended to treat Plaintiffs’ Mobile Home as a permanent residence, similarly situated to other mobile homes located on land owned by the mobile home resident. (Id. atfl 8.) In late 2019 or early 2020, the District decided to exercise its rights under the 2004 Contract’s Change of use clause to move out of their Mobile Home so the District could devote the land on which the Mobile Home is situated to another purpose. (FAC at 1] 9.) 1 The court refers separately to Plaintiffs by their first names at times for purposes of clarity. No disrespect is intended. (See Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1.) 2 This Department intends to comply with the time requirements of the Trial Court Delay Reduction Act (Government Code, §§ 68600-68620). The California Rules of Court state that the goal of each trial court should be to manage limited and unlimited civil cases from filing so that 100 percent are disposed of within 24 months. (Ca. St. Civil Rules of Court, Rule 3.714(b)(1)(C) and (b)(2)(C). 19 January 2021 Order On Demurrer to Cross-Complaint. Page 2 of 43 In or about February 2020, the District retained an appraiser to evaluate the fair market value of Plaintiffs’ Mobile Home. (FAC atfl 10.) In March 2020, the appraiser hired by the District properly appraised the fair market value of Plaintiffs’ Mobile Home at $262,000. (FAC at 11 11.) In April 2020, the District gave Plaintiffs formal notice that it had decided to exercise its right to change the use of the property upon which the Mobile Home was located, effective 1 June 2021. (FAC at1] 12.) In May 2020, the District breached the 2004 Contract, both by anticipatory breach and by actual breach, by failing to offer to purchase Plaintiffs’ Mobile Home for the Agreed Price (i.e., $262,000 less one-half of the demolition costs); instead, the District offered to purchase Plaintiffs’ Mobile Home for its alleged fair market value after a change of use (allegedly, $41 ,774) less one-half of the demolition costs. (FAC at1] 13.) As a result of the breach, Plaintiffs seek damages in an amount not less than $256,000. (FAC at 1] 14.) On 28 July 2020, Plaintiffs filed their initial complaint against the District alleging causes of action for breach of contract and unpaid back wages. On 16 October 2020, Plaintiffs filed the operative FAC alleging claims for breach of contract and unpaid minimum and overtime wages. On 13 November 2020, the District filed its answer to the complaint alleging various affirmative defenses only as to plaintiff Esther. Currently before the Court is a demurrer by the District to the FAC on the ground that plaintiff Adrian fails to state any valid cause of action. (Code of Civil Procedure, §430.10, subd. (e).) Plaintiffs filed written opposition. The District filed reply papers. ||. Demurrers to Complaints. A complaint must contain substantive factual allegations sufficiently apprising the defendant of the issues to be addressed. (See Williams V. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) A demurrer tests the legal sufficiency of a complaint. It is properly sustained where the complaint or an individual cause of action fails to "state facts sufficient to constitute a cause of action." (Code of Civil Procedure, §430.10(e).) "Conclusionary allegations . . .without facts to support them" are insufficient on demurrer.” (Ankeny v. Lockheed Missiles and Space Co. (1979) 88 Cal.App.3d 531, 537.) “It is fundamental that a demurrer is an attack against the complaint on its face, it should not be sustained unless the complaint shows that the action may not be pursued.” (YoIo County Dept. of Social Services v. Municipal Court (1980) 107 Cal.App.3d 842, 846- 847.) “In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed.”’ (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “It is not the ordinary function of a demurrer to test the truth of the plaintiff's allegations or the accuracy with which he describes the defendant's conduct. A demurrer tests only the legal sufficiency of the pleading. (Whitcombe v. County of YoIo (1977) 73 Cal.App.3d 698, 702.) It ‘admits the truth of all material factual allegations in the complaint . . .; the question of plaintiff‘s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214; see Cook v. De La Guerra (1864) 24 Cal. 237, 239: “[|]t is not the office of a demurrer to state facts, but to raise an issue of law upon the facts stated in the pleading demurred to.”) 19 January 2021 Order On Demurrer to Cross-Complaint. Page 3 of 43 “The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. The court does not, however, assume the truth of contentions, deductions or conclusions of law.” (Gregory v. Albertson’s, Inc. (2002) 104 Cal.App.4th 845, 850.) |||. Analysis. A. First Cause of Action: Breach of Contract. “[T]he elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Ca|.4th 81 1, 821 .) The District persuasively argues that plaintiff Adrian is not a party to the 2004 Contract and thus fails to state any claim for relief. The first cause of action is based on the District’s alleged breach of the 2004 Contract. (See FAC at 1T1] 4-14.) A copy of the contract, attached to the pleading at Exhibit B, shows the agreement was entered into by plaintiff Esther and the District. (Id. at Ex. B.) Nothing on the face of the agreement demonstrates that plaintiff Adrian was a party to the 2004 Contract. Plaintiffs concede as much in opposition by admitting that plaintiff Adrian is not named as a party to the contract. (See OPP at p. 2:18-19.) The demurrer is therefore sustainable on that basis. In reply, the District asserts that leave to amend is not appropriate under the circumstances. In general, if under substantive law no liability exists, a demurrer is proper, and it is not an abuse of discretion for a judge to deny leave to amend. (Lawrence v. Bank ofAmerica (1985) 163 Cal.App.3d 431, 437.) However, “it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.” (Gregory v. Albertson’s, Inc. (2002) 104 Cal.App.4th 845, 850.) As this is the first demurrer to the operative pleading, the Court wi|| provide Plaintiffs with an opportunity for leave to amend. (See City of Stockton V. Superior Court (2007) 42 Cal.4th 730, 747) [if the plaintiff has not had an opportunity to amend the pleading in response to a motion challenging the sufficiency of the allegations, leave to amend is liberally allowed as a matter of fairness, unless the pleading shows on its face that it is incapable of amendment].) Accordingly, the demurrer to the first cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND for failure to state a claim. B. Second Cause of Action: Unpaid Minimum and Overtime Wages. The second cause of action is a claim for unpaid minimum and overtime wages in violation of 29 U.S.C. §§ 206, 207 and 216. The District argues that, since plaintiff Adrian is not a party to the 2004 Contract, that he fails to allege any claim for unpaid wages. The District however fails to demonstrate that the existence of the 2004 Contract is a necessary element to state a claim for unpaid wages. Indeed, Plaintiffs allege they have been employees of the District since the parties entered into the 1996 Contract. (See FAC at 1] 16.) Plaintiffs further allege they worked at least 6.5 to 8.0 hours perweek inspecting the District’s grounds and the District failed to pay wages for such work. (Id. at 111117- 23.) Such allegations are sufficient to state a claim for unpaid wages and overcome a challenge on demurrer. Accordingly, the demurrer to the second cause of action on the ground that it fails to state a claim is OVERRULED. IV. Tentative Ruling. The tentative ruling was duly posted. 19 January 2021 Order On Demurrer to Cross-Complaint. Page 4 of 43 V. Conclusion and Order. The demurrer to the first cause of action against plaintiff Adrian is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND for failure to state a claim. The demurrer to the second cause of action against plaintiff Adrian for failure to state a claim is OVERRULED. DATED: HON. SOCRATES PETER MANOUKIAN fudge 0f the Superior Court County 0f Santa Clam - 00000 - 19 January 2021 Order On Demurrer to Cross-Complaint. Page 5 of 43 Calendar Line 4 SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA DEPARTMENT 20 161 North First Street, San Jose, CA 95113 408.882.2320 ' 408.882.2296 (fax) smanoukian@scscourt.org http://www.scscourt.org (For Clerk's Use Only) CASE NO. 20CV369499 Eric Kutcher, et a1. v. Ahmad Javid, et a1. DATE: 19 January 2021 TIME: 9:00 am LINE NUMBER: 4 This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 20 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 20 at 408.808.6856 and the opposing party no later than 4:00 PM on 15 January 2021. Please specify the issue to be contested when calling the Court and Counsel. Order 0n Demurrer to Cross-Complaint. |. Statement of Facts.3 Complaint On 28 November 2018, defendants Ahmad Javid and Safoora Javid (collectively “Javids”), trustees of the Javid Family Trust dated June 24, 1981 (“Javid Trust”), recorded a deed of trust (“2018 Javid Lien”) as an approximate $2.7 million encumbrance against real property located at 24926 Oneonta Drive in Los Altos Hills (“Property”). (Complaint, 11111, 2, 16, 38 and Exh. 3.) On 8 April 2019, the Javid Trust voluntarily released the Javid Lien by voluntarily signing and recording a Substitution of Trustee and Full Reconveyance (“2019 Javid Reconveyance”). (Complaint, 11112, 17, and Exh. 2.) A new lender, Presidio Mortgage Holdings LP (“Presidio”), recorded a new lien (“Presidio Lien”) securing its $7,050,000 loan against the Property. (Complaint, 1117.) On 29 June 2020, plaintiffs Eric Kutcher and Lauren Kutcher (“Plaintiffs” or “Kutchers”) entered into a purchase contract with defendant 24925 Oneonta Drive, LLC (“Seller”) to purchase the Property for $9,450,000 with $1 ,300,000 of Sellerfinancing (“Seller Carryback Loan”) and the balance in cash. (Complaint, 1121 .) Plaintiffs were buying the Property on the express and implied condition that Seller would deliver title free and clear of any unknown liens. (Complaint, 111122 - 25.) In reliance, Plaintiffs executed the Seller Financing Addendum relating to the $1 .3 million Seller Carryback Loan which was secured by a deed of trust recorded on 10 July 2020. (Complaint, 1126 and Exh. 6.) 3 Ajudge must disclose on the record information the judge believes the parties or their attorneys might consider relevant to the question of disqualification, even if the judge believes there is no actual basis for disqualification. (Rules of Court, Code of Judicial Ethics, Canon 3E(2); Rules of Court, rule 2.817 [temporaryjudge]. The parties should have an opportunity to weigh this information when considering whether to challenge the judge. Many judges invite the parties to comment on the disclosed information. This Judge discloses that he lives within a quarter-mile of this residence and has known the property in question here since 1960. He passes this property twice a day. 19 January 2021 Order On Demurrer to Cross-Complaint. Page 6 of 43 On 1O July 2020, at close of escrow, a Grant Deed conveying the Property from Seller to Plaintiffs was recorded. (Complaint, 1128 and Exh. 7.) Among other things, the Plaintiffs’ purchase funds were used to pay off Seller’s loan from Presidio. (Complaint, 1129.) The Javid Trust learned of the sale of the Property from Seller on the same day that Plaintiffs signed the purchase contract, 29 June 2020. (Complaint, 1136.) That same day, the Javid Trust recorded a document entitled Rescission of Reconveyance (“2020 Javid Rescission”) without notice to Plaintiffs and purporting to rescind the 2019 Javid Reconveyance with the intent to resurrect the 2018 Javid Lien. (Complaint, 11112, 37, and Exh. 1.) If Plaintiffs had known of the Javid Trust’s actions, Plaintiffs would not have entered into the purchase contract. (Complaint, 1138.) Prior to closing, Plaintiffs had no knowledge that the Javid Trust was attempting to revive the 2018 Javid Lien or that there was any claim that Seller had failed to meet its debt obligations to the Javid Trust. (Complaint, 1127.) Seller was aware of the 2018 Javid Lien and was aware the 2020 Javid Rescission had been recorded prior to closing of the purchase transaction, but intentionally concealed this information from Plaintiffs. (Complaint, 111139 and 42.) On 14 August 20204, Plaintiffs filed a complaint against defendant Javids, trustees of the Javid Trust, Seller, and others asserting causes of action for: 4 This Department intends to comply with the time requirements of the Trial Court Delay Reduction Act (Government Code, §§ 68600-68620). The California Rules of Court state that the goal of each trial court should be to manage limited and unlimited civil cases from filing so that 100 percent are disposed of within 24 months. (Ca. St. Civil Rules of Court, Rule 3.714(b)(1)(C) and (b)(2)(C). 19 January 2021 Order On Demurrer to Cross-Complaint. Page 7 of 43 8 9 Fraud Equitable Estoppel Quiet Title ) Declaratory Relief ) 10 Equitable Lien by Subrogation Slander of Title Intentional Interference with Contract 12 13 Injunctive Relief ) ( ) ( ) Cancellation oflnstrument ( ( ) ) ( UnjustEnrichment ( ) ) 11) Cancellation of Instrument ) )Breach of Contract 7) Breach of Implied Covenants On 11 September 2020, defendant Javids, trustees of the Javid Trust, filed an answer to Plaintiffs’ complaint and, along with Roya Javid (the Javids’ adult daughter), also filed a cross-complaint. Cross-Complaint The cross-complaint by the Javids alleges that beginning in 201 7, cross-defendant Vahe Setrak Tashjian (“Tashjian”) solicited the Javid Trust and their family members to invest in one or more of his real estate development ventures by acquiring membership in a limited liability company. (Cross-Complaint, 1129.) Given their age (both over 80 years old), the Javids did not wish to undertake such risk. (Id.) Instead, Tashjian convinced the Javids and their family members to lend money in exchange for promissory notes Tashjian would personally guarantee were backed by well secured deeds of trust with substantial equity. (Id.) In reliance, the Javid Trust, on 12 November 2018, made a $2.7 million loan evidenced by a promissory note bearing interest at 18% with quarterly payments and a maturity date of 12 November 2020 secured by a deed of trust (“Oneonta DOT”) executed by 24925 Oneonta Drive, LLC (identified in complaint, above, as “Seller”) against the Property. Roya Javid, on 12 November 2018, made a $1 .8 million loan evidenced by a promissory note bearing interest at 18% with quarterly payments and a maturity date of 12 April 2020 secured by a deed of trust (“Grant DOT”) executed by 1575 Grant Road, LLC against real property located at 1575 Grant Road in Mountain View. (Cross-Complaint, 111130 - 31 .) During the early part of 2019, Tashjian solicited from the Javid Trust and Roya Javid a temporary short term, no risk release of both the Oneonta DOT and Grant DOT. (Cross-Complaint, 1133.) Tashjian explained that he was simply trying to take advantage of lower interest rates for the purpose of refinancing senior loans. (Id.) By refinancing senior loans to lower interest rates, there would be a savings of cash flow that would inure to the benefit of assuring payments to the Javid Trust and Roya Javid. (Id.) Tashjian assured the Javid Trust and Roya Javid that the refinances would be for the same principal loan amounts so the junior deeds of trust held by the Javid Trust and Roya Javid would not see their security rights impaired. (Id.) Tashjian represented to the Javid Trust that the only senior loan obligation to the Oneonta DOT was a construction loan in the approximate amount of $4.8 million and upon completion of the refinance, Tashjian would cause Seller to re-record a replacement deed of trust for the benefit of the Javid Trust. (Cross-Complaint, 1134.) In reliance, prior to 8 April 2019, the Javid Trust executed a deed of reconveyance of the Oneonta DOT which cross- defendants caused to be recorded. (Cross-Complaint, 1136.) Tashjian represented to Roya Javid that the only senior loan obligation to the Grant DOT was a construction loan in the approximate amount of $1 .8 million and upon completion of the refinance, Tashjian would cause 1575 Grant Road, LLC to re-record a replacement deed of trust for the benefit of Roya Javid. (Cross-Complaint, 1137.) In reliance, on or about 5 August 2019, Roya Javid executed a deed of reconveyance of the Grant DOT which cross- defendants caused to be recorded. (Cross-Complaint, 1139.) Unknown to the Javid Trust and Roya Javid, the refinances on the Oneonta Property and Grant property were in much larger dollar amounts than the pre-existing senior financial obligations. (Cross-Complaint, 1140.) As to the Oneonta Property, Tashjian and other cross-defendants caused to be recorded a new deed of trust in favor of Presidio in the amount of $7,050,000 recorded on 8 April 2019. (Cross-Complaint, 1141 .) As to the Grant property, 19 January 2021 Order On Demurrer to Cross-Complaint. Page 8 of 43 Tashjian and other cross-defendants caused to be recorded a new deed of trust in favor of Goldman Sachs Bank, USA, in the amount of $5,1 10,000 recorded on 9 September 2019. (Cross-Complaint, 1144.) Following recordation of their reconveyances of the Oneonta DOT and Grant DOT, the Javid Trust and Roya Javid have repeatedly sought to obtain and record replacement deeds of trust from cross-defendants Tashjian, Seller, 1575 Grant Road, LLC, and others, but have been stonewalled in their requests. (Cross-Complaint, 1147.) With regard to the Grant property, Tashjian and other cross-defendants issued three subsequent deeds of trusts to third parties and then sold the Grant property to a third party with a grant deed recorded on 28 May 2020. (Cross-Complaint, 111148 - 49.) Despite a maturity date of 12 April 2020 in the promissory note, at no time at or after 28 May 2020 did Tashjian and/or the other cross-defendants pay Roya Javid the outstanding balance of principal and interest. (Cross-Complaint, 1150.) Upon learning of the sale of the Grant property, Roya Javid realized she had lost any opportunity to receive replacement security let alone repayment so Roya Javid conferred with her parents on the need to act to preserve and protect their opportunity to receive replacement security as well as payment from the sale of the Oneonta Property. (Cross-Complaint, 1151 .) Upon realizing cross-defendants Tashjian and others acted in complete disregard of financial obligations to Roya Javid, the Javid Trust knew that it was constrained to cancel, rescind, unwind or otherwise negate the previous reconveyance of the Oneonta DOT so as to reinstate the Oneonta DOT. (Cross- Complaint, 1153.) Consequently, on 29 June 2020, the Javid Trust caused to be recorded a Rescission of Reconveyance. (Id.) Upon recording the Rescission of Reconveyance, the Javid Trust advised Tashjian and other cross- defendants of the same. (Cross-Complaint, 1154.) Unknown to the Javid Trust, cross-defendants Tashjian and Seller had a then-pending escrow transaction for the sale of the Property to the Kutchers. (Cross-Complaint, 1156.) When Tashjian, the title company (cross-defendant Orange Coast Title Company of Northern California (“OCTC”)), and OCTC escrow officer (cross-defendant Susan Trujillo (“Truji||o”)) learned that the Javid Trust recorded the Rescission of Reconveyance, Tashjian convinced the Kutchers to switch title companies in an effort to avoid the Seller’s obligation to repay the Javid Trust the $2.7 million owed under the promissory note. (Cross-Complaint, 1157.) By agreeing to switch title companies, the Kutchers participated in the effort to avoid repayment of the Javid Trust. (Id.) On information and belief, the Javid Trust alleges the Kutchers purchased the Property with actual and/or constructive notice of the financial rights and obligations of the Oneonta DOT. (Cross-Complaint, 1158.) As a result of the Kutchers’ actual and/or constructive notice of the Javid Trust’s rights, the Kutchers are not bona fide purchasers and their rights and title to the Property as well as the Sellers’ rights as beneficiary of the deed of trust given by the Kutchers, is subordinate to the rights of the Javid Trust. (Cross-Complaint, 1162.) At no time did Tashjian or Seller ever pay the outstanding balance of principal and interest due to the Javid Trust under the promissory note. (Cross- Complaint, 1159.) The Javid Trust and Roya Javid’s cross-complaint asserts causes of action for: A V Quiet Title and Judicial Foreclosure (1 1) Unfair Business Practices N Intentional Misrepresentation (JO Negligent Misrepresentation VVVVVVVV Conversion O‘l Declaratory Relief O3 Rescission N Conspiracy m Breach of Contract CO Negligence AAAAAAAAAA 10) Equitable and Injunctive Relief 19 January 2021 Order On Demurrer to Cross-Complaint. Page 9 of 43 On 13 October 2020, the Kutchers filed the motion now before the court, a demurrer to the first, fifth, and sixth causes of action asserted against them in the Javid Trust and Roya Javid’s cross-complaint. ||. Demurrer to the Cross-Complaint. A complaint or cross-complaint must contain substantive factual allegations sufficiently apprising the defendant of the issues to be addressed. (See Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) A demurrer tests the legal sufficiency of a complaint. It is properly sustained where the complaint or an individual cause of action fails to "state facts sufficient to constitute a cause of action." (Code of Civil Procedure, §430.10(e).) "Conclusionary allegations . . .without facts to support them" are insufficient on demurrer.” (Ankeny v. Lockheed Missiles and Space Co. (1979) 88 Cal.App.3d 531, 537.) “It is fundamental that a demurrer is an attack against the complaint on its face, it should not be sustained unless the complaint shows that the action may not be pursued.” (YoIo County Dept. of Social Services v. Municipal Court (1980) 107 Cal.App.3d 842, 846- 847.) “It is not the ordinary function of a demurrer to test the truth of the plaintiff's allegations or the accuracy with which he describes the defendant's conduct. A demurrer tests only the legal sufficiency of the pleading. (Whitcombe v. County of YoIo (1977) 73 Cal.App.3d 698, 702.) It ‘admits the truth of all material factual allegations in the complaint . . .; the question of plaintiff‘s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Ca|.3d 197, 213-214; see Cook v. De La Guerra (1864) 24 Cal. 237, 239: “[|]t is not the office of a demurrer to state facts, but t0 raise an issue of law upon the facts stated in the pleading demurred to.”) |||. Analysis. A. Cross-defendant Kutchers’ demurrer to the first [quiet title], fifth [declaratory relief], and sixth [rescission] causes of action of cross-complainants Javid Trust and Roya Javid’s cross-complaint is OVERRULED. The Kutchers demur to the first, fifth, and sixth causes of action of the cross-complaint by arguing that they are all based on an the Javid Trust’s erroneous assertion that the “Rescission of Reconveyance” operates to rescind the full reconveyance executed and recorded 14 months earlier. The Kutchers contend such an assertion is incorrect, as a matter of law, for six reasons. The Kutchers first argue that when the Javid Trust executed (and Tashjian, Seller, or some other cross- defendant recorded) the deed of reconveyance of the Oneonta DOT, that reconveyance is conclusive and the Oneonta DOT is fully, unconditionally, and permanently extinguished. However, that does not mean the Javid Trust is left without a remedy when, as alleged here, the Javid Trust’s execution of the deed of reconveyance was procured by fraud and the Kutchers have actual and/or constructive notice of such fraud. “That a court of equity has power in a proper case to revive a discharged mortgage, even one which has been released of record, is not questioned.” (Simon Newman Co. v. Fink (1928) 206 Cal. 143, 147.) On the facts pleaded in the cross-complaint, the court believes this to be a proper case for a court, acting in equity, to revive a reconveyed deed of trust. The Kutchers’ citation to Civil Code section 11075 is essentially recognition of the race-notice system of recording adopted in California. Under this race-notice system, a bona fide purchaser or encumbrancer who first 5 Civil Code section 1107 states, “Every grant of an estate in real property is conclusive against the grantor, also against every one subsequently claiming under him, except a purchaser or incumbrancer who in good faith and for a valuable consideration acquires a title or lien by an instrument that is first duly recorded.” See also Civil Code section 1214 which states, “Every conveyance of real property or an estate for years therein, other than a lease for a term not exceeding one year, is void as duly records his interest in a piece of real property is protected by the recording laws. “To become a bona fide purchaser one must have acquired title without notice, actual or constructive, of another's rights and also must have paid value for the same.” (Sieger v. Standard Oil Co. (1957) 155 Cal.App.2d 649, 656.) Here, as the Javid Trust emphasizes in opposition, the cross-complaint alleges the Kutchers purchased the Property with actual and/or constructive notice of the financial rights and obligations of the Oneonta DOT. (Cross-Complaint, 1158.) “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 21 3 - 214.) The Kutchers paint themselves as innocent (bona fide) purchasers in this scenario and while that may ultimately be proven true, the court accepts the allegations that the opposite is true for purposes of demurrer. The Kutchers next argue the purported Rescission of Reconveyance instrument is void because it violates the statute of frauds and is invalid because the Javid Trust no longer had any interest in the Property at the time the Rescission of Reconveyance was recorded. However, in this court’s opinion, the issue is not whether the document was void or invalid or even whether it had the legal effect to rescinding the Javid Trust’s reconveyance of the Oneonta DOT; the issue is what effect did recording that document/instrument have in imparting notice, constructive or otherwise, to the Kutchers. “Every conveyance of real property or an estate for years therein acknowledged or proved and certified and recorded as prescribed by law from the time it is filed with the recorder for record is constructive notice of the contents thereof to subsequent purchasers and mortgagees.” (Civ. Code, §1213.) However, An instrument that is void ab initio is comparable to a blank piece of paper and so necessarily derives no validity from the mere fact that it is recorded. (Cf. New England Bond & Mortgage Co. v. Brock, 270 Mass. 107 [169 N.E. 803, 68 A.L.R. 371].) As a consequence the record thereof is not constructive notice of its contents or of the fact that it is actually recorded. The purpose of our recording statutes (Civ. Code, §§ 1213-1215) is to give notice to prospective purchasers or mortgagees of land of all existing and outstanding estates, titles, or interests in it whether valid or invalid, which may affect their rights as bona fide purchasers and so as to protect them before they part with their money. Accordingly, it is obvious that invalid documents are not entitled to be recorded, but if they are recorded, they do not give constructive notice. (45 Am.Jur. 481; cf. Meley v. Collins, 41 Cal. 663 [10 Am.Rep. 279] (forged deed).) (Los Angeles v. Morgan (1951) 105 Cal.App.2d 726, 733 [234 P.2d 319].) “The] mere fact that an instrument has been recorded does not give constructive notice thereof unless there is some statute authorizing or permitting such instrument to be placed of record and at the same time making the effect of such recording constructive notice." (Stearns v. Title Ins. & Trust Co. (1971) 18 Cal.App.3d 162, 169.) Nevertheless, if an instrument not entitled to be recorded is recorded, its recordation will constitute actual notice to one who has seen it in the record. “[|]t makes no difference whether the writings were in a technical sense such as might properly be recorded. The reading of the instruments was actual notice to the intending purchasers, whether the documents were lawfully of record or not.” (Parkside Realty Co. v. MacDonald (1913) 166 Cal. 426, 431 .) Again, the court is constrained by the allegations of the cross-complaint. Here, the Javid Trust has alleged, “Defendants ERIC KUTCHER and LAUREN KUTCHER, bought with either actual and/or constructive notice (provided by recorded information and/or information conveyed through the real estate companies involved in their transaction) of the financial rights and obligations of the JAVID TRUST’S ONEONTA DOT.” (Cross-Complaint, 1158.) The mere recording of an invalid or void document may not suffice to impart constructive notice, but the cross-complaint alleges not only constructive notice, but actual noticefi against any subsequent purchaser or mortgagee of the same property, or any part thereof, in good faith and for a valuable consideration, whose conveyance is first duly recorded, and as against any judgment affecting the title, unless the conveyance shall have been duly recorded prior to the record of notice of action.” 6 This also addresses the Kutchers’ fifth argument that the Javid Trust’s recording of the Rescission of Reconveyance did not give it any legal effect. The Kutchers contend next that the full reconveyance by the Javid Trust cannot be rescinded. The Kutchers cite Wooster v. Department of Fish & Game (2012) 211 Cal.App.4th 1020, 1030 (Wooster) which, in turn, cites to Lavely v. Nonemaker (1931) 212 Cal. 380, 383 (Lavely) where the California Supreme court stated: “It is settled that a deed without fraud in its inception conveys the title, and is not void for any failure of consideration, either in whole or in part. [Citation] Acts done subsequent to the execution and delivery of a deed cannot affect its integrity, and a subsequent failure of consideration or breach of a personal covenant not amounting to a condition, will not avoid the deed, if there was no fraud or false representation.” (Lavely v. Nonemaker (1931) 212 Cal. 380, 383 [298 P. 976].) “To hold that a vendor of real property could, for a failure to pay the purchase money or other consideration, repudiate his deed and recover the land, would render real estate titles dangerously uncertain, and would result in the most serious consequences.” (Id. at p. 385.) The Kutchers apparently focus on the language above regarding fraud in the inception7 and argue that there is no allegation of fraud in the inception here and so the reconveyance executed by the Javid Trust is entirely unassailable. The court disagrees with the Kutchers’ interpretation of this language. While the court would agree that, without fraud in the inception, the full reconveyance is not void. However, that does not mean the reconveyance cannot be subsequently rescinded or that there is no subsequent remedy. The court instead focuses on the following language from Lavely and Wooster. “Acts done subsequent to the execution and delivery of a deed cannot affect its integrity if there was no fraud or false representation.” (Emphasis added.) Here, cross- complainants specifically allege fraud. Finally, the Kutchers contend the Javid Trust’s agreement with Tashjian/Seller to temporarily extinguish the Oneonta DOT amounts to a novation and Tashjian/Seller’s failure to perform under the new agreement does not support rescission or revivor of the earlier obligation, including the Oneonta DOT. In support, the Kutchers cite Beckwith v. Sheldon (1913) 165 Cal. 319, 323 (Beckwith) where the court wrote: ...by the substitution of the contract of April, 1903, for the contract of September, 1902, the latter determining all rights and covering the whole subject matter of the former, a novation resulted, and that through this novation, by the very terms of the 1903 contract declaring the agreement of 1902 to be rescinded, canceled and annulled, as well as by operation of law (Civ. Code, sec. 1531, subd. 1), the earlier agreement was extinguished. And this extinguishment does not mean that the earlier contract was held in abeyance or in suspense. It does not mean that it could be revived upon a mere failure to perform the new obligation. It means that it was canceled and obliterated as completely as though it had never had existence. However, the Kutchers omit a portion of the Beckwith that this court finds significant. The courts have felt themselves compelled to look no further than to determine whether a novation has taken place, or, in other words, whether the new contract was entered into without fraud and with an agreement of minds that it was to be substituted for the existing obligation. When that point has been reached they have found no difficulty in declaring that the rights of parties to the agreement are to be governed by the new contract alone, and that a failure to perform does not, under any theory of rescission or revivor, operate to breathe new life into the dead and extinguished obligation. 7 “California law distinguishes between fraud in the ‘inducement’ of a contract and fraud in the ‘execution or ‘inception’ of a contract. The more usual case of fraud in the inducement occurs when the promisor knows what he is signing but his consent is induced by fraud, mutual assent is present and a contract is formed, which, by reason of the fraud, is voidable...Fraud in the execution, on the other hand, occurs when the promisor is deceived as to the nature of his act, and actually does not know what he is signing, or does not intend to enter into a contract at all, mutual assent is lacking, and it is void. In such a case it may be disregarded without the necessity of rescission.” (Hotels Nevada v. L.A. Pacific Center, Inc. (2006) 144 Cal.App.4th 754, 763-764; internal quotations and citations omitted). To be clear, fraud in the execution or inception occurs where the a person believes he is executing a particular instrument (i.e. a lease) but another (i.e. a deed) is fraudulently substituted in its place; in contrast, fraud in the inducement arises where a person realizes that he is executing a particular instrument (i.e. a deed) but the contents of the instrument differ in detail from that which he intended. (Erickson v. Bohne (1955) 130 Cal.App.2d 553, 555-556; see also Schiavon v. Arnaudo Brothers (2000) 84 Cal.App.4th 374, 378.) (Id. at p. 324; emphasis added.) As noted earlier, the Javid Trust alleges fraud. This alone distinguishes Beckwith. Moreover, as the Kutchers acknowledge, novation is made “[b]y the substitution of a new obligation between the same parties, with intent to extinguish the old obligation.” (Civ. Code, §1531 .) The court cannot state, as a matter of law, that such intent to extinguish is unequivocally disclosed from the allegations of the cross-complaint, particularly where it can reasonably be inferred that the Javid Trust had no intent to extinguish the underlying promissory note obligation (repayment of $2.7 million) and Tashjian/Seller did not seek to extinguish the Oneonta DOT but rather sought a “ ‘temporary short term, no risk’ release of the Oneonta DOT.” (Cross-Complaint, 1133.) For all the reasons discussed above, cross-defendant Kutchers’ demurrer to the first, fifth, and sixth causes of action of cross-complainant Javid Trust and Roya Javid’s cross-complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] is OVERRULED. IV. Tentative Ruling. The tentative ruling in this matter was duly posted. V. Conclusion and Order. Cross-defendant Kutchers’ demurrer to the first, fifth, and sixth causes of action of cross-complainant Javid Trust and Roya Javid’s cross-complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] is OVERRULED. DATED: HON. SOCRATES PETER MANOUKIAN fudge of the Superior Court County of Santa Clam - 00000 - Calendar Line 5 SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA DEPARTMENT 20 161 North First Street, San Jose, CA 95113 408.882.2320 ’ 408.882.2296 (fax) smanoukian@scscourt.org http://www.scscourt.org (PorClerk's UseOnly) CASE NO. 18CV335946 Paul Elias, etc. V. International Insurance Company of Hannover SE, et a1. DATE: 19 January 2021 TIME: 9:00 am LINE NUMBER: 6 This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 20 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 20 at 408.808.6856 and the opposing party no later than 4:00 PM on 18 January 2021. Please specify the issue to be contested when calling the Court and Counsel. Order On Motion of Defendanthross-Complainant Colony Insurance Company For Summary Judgment 0n Its Cross-Complaint For Rescission. |. Statement of Facts. On 17 January 2017, Jo Ann Brassfield and Shann Brassfield (collectively, “Brassfields”), in their capacities as co-trustees of the Jo Ann Brassfield Living Trust D/T/D 1/07/1992, as owners of property located at 177 Loma Alta Avenue, Los Gatos, California (“Property"), filed a complaint in Santa Clara County Superior Court against Paul S. S. Elias (“Elias”) dba Apec Construction (“Apec”) and others for damages arising out of work of construction of a residence and improvements located at the Property ("Underlying Action"). (First Amended Complaint (“FAC”), 119 and Exh. A.) Elias and Apec tendered defense and indemnity of the Underlying Action to HDI Global Specialty SE formerly known as International Insurance Company of Hannover SE (“Hannover”). (FAC, 11116 and 10.) Hannover, through its third party administrator Premier Claims Management, Inc. (“Premier”) repeatedly denied coverage of the Underlying Action. (FAC, 111111 - 16.) Apec tendered defense and immunity of the Underlying Action to Colony Insurance Company (“CIC”) on 19 September 2017. (FAC, 11117 and 17.) CIC repeatedly denied coverage of the Underlying Action. (FAC, 111118 - 21 .) On 4 October 20188, plaintiffs Elias, individually and dba Apec (collectively, “Elias”), filed a complaint against defendants Hannover, CIC (erroneously sued as Colony Specialty Insurance Company), and Premier asserting causes of action for: 14) Declaratory Relief on the Duty to Defend 15) Declaratory Relief on the Duty to Indemnify 16) Breach of Contract ) ( ( ( (17 Breach of the Implied Covenant of Good Faith and Fair Dealing 8 This Department intends to comply with the time requirements of the Trial Court Delay Reduction Act (Government Code, §§ 68600-68620). The California Rules of Court state that the goal of each trial court should be to manage limited and unlimited civil cases from filing so that 100 percent are disposed of within 24 months. (Ca. St. Civil Rules of Court, Rule 3.714(b)(1)(C) and (b)(2)(C). On 6 March 2019, Elias filed the operative FAC asserting the same causes of action in the original complaint and adding a fifth cause of action for negligent misrepresentation directed against Premier. On 15 March 2019, defendant CIC filed an answer to plaintiffs’ FAC. On 8 April 2019, defendant Hannoverfiled an answer to plaintiffs’ FAC. On 2 July 2019, plaintiffs dismissed defendant Premier with prejudice. On 26 November 2019, pursuant to a joint stipulation and order, CIC filed a cross-complaint against Elias. CIC’s cross-complaint alleges, generally, that Elias made various misrepresentations and/or concealed and/or failed to disclose material facts in applying for commercial general liability insurance from CIC for the policy periods from 17 March 2016 through 17 March 2020. In reliance thereon, CIC issued four (4) commercial general liability insurance policies (“Policies”) to Elias. Among other things, Elias misrepresented, concealed, and/or did not disclose the fact that the Brassfields filed two complaints against Elias and/or Apec prior to the Underlying Action; the fact that Elias performed work constructing basements; and the fact that Elias completed significant remodel projects for more than $575,000. (Cross- Complaint, 1133.) CIC would not have issued the Policies of insurance had it been aware of the true facts. (Id.) CIC seeks rescission of the Policies of insurance. CIC’s cross-complaint asserts causes of action for: (1) Rescission (2) Declaratory Relief9 On 19 March 2020, Elias filed an answer to CIC’s cross-complaint. Also on 19 March 2020, CIC filed two motions for summaryjudgment: (1) a motion for summaryjudgment of Elias’s FAC; and (2) a motion for summaryjudgment of CIC’s cross-complaint (the motion now presently before the court). On 8 May 2020, Hannover filed a motion for summaryjudgment of Elias’s FAC. On 18 June 2020, the court granted CIC’s motion for summaryjudgment of Elias’s FAC. The court continued hearing of CIC’s motion for summaryjudgment of CIC’s cross-complaint to 18 August 2020. Of relevance to the present motion for summary judgment of CIC’s cross-complaint, the court’s order stated, “[Elias] may file a revised or amended opposition per code which will completely supersede his original opposition papers.”1° On 5 August 2020, pursuant to joint stipulation, the court issued an order continuing the hearing on CIC’s motion for summary judgment of CIC’s cross-complaint from 18 August 2020 to 29 September 2020. On 18 September 2020, the court granted Hannover’s motion for summaryjudgment of Elias’s FAC. On 4 November 2020, pursuant to joint stipulation, the court issued an order continuing the hearing on CIC’s motion for summaryjudgment of CIC’s cross-complaint to 15 December 2020 and setting deadlines for opposition and reply papers. On its own motion, the court further continued the hearing on CIC’s motion for summaryjudgment of CIC’s cross-complaint to 19 January 2020. /// 9 The second cause of action is asserted “in the alternative to the first cause of action for Rescission should the Court for any reason not order the Policies rescinded.” (Cross-Complaint, 1137.) 10 In view of this directive, the court deems the opposition papers filed by Elias on 19 May 2020 to be completely superseded by the opposition papers filed by Elias on 1 December 2020. ||. Motion For Summary Judgment. “A [party] has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the [party] has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The [opposing party] may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.” (Code of Civil Procedure, §437c(o)(2).) “The motion for summaryjudgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summaryjudgment shall not be granted by the court based on inferences reasonably deducible from the evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact.” (Code of Civil Procedure, §437c(c).) |||. Analysis. B. ClC’s motion for summary judgment of ClC’s cross-complaint is DENIED. In moving for summaryjudgment of its cross-complaint against Elias for rescission, CIC relies principally upon LA Sound USA, Inc. v. St. Paul Fire & Marine Ins. Co. (2007) 156 Cal.App.4th 1259, 1266-1267 (LA Sound) where the court explained: When a policyholder conceals or misrepresents a material fact on an insurance application, the insurer is entitled to rescind the policy. “Each party to a contract of insurance shall communicate to the other, in good faith, all facts within his knowledge which are or which he believes to be material to the contract (Ins. Code, § 332.) Concealment, which is the “[n]eglect to communicate that which a party knows, and ought to communicate” (§ 330), “entitles the injured party to rescind insurance” (§ 331). Similarly, “[i]f a representation is false“ in a material point the injured party is entitled to rescind the contract from the time the representation becomes false.” (§ 359.) “[A] rescission effectively renders the policy totally unenforceable from the outset so that there was never any coverage and no benefits are payable.” (Imperial Casualty, supra, 198 Cal. App. 3d at p. 182.) Substantial evidence shows LA Sound concealed and misrepresented its involvement with Hollywood Sound on the insurance application. The application asked whether LA Sound had been or was currently involved in a joint venture, and whether it had a labor interchange with any other business. In fact, LA Sound had been involved in the joint venture with Hollywood Sound for six months at the time of the application, sharing employees with LSY in the process. Nonetheless, the application indicated the answer to each question was, “NO.” These false answers entitled St. Paul to rescind the policy, rendering it void ab initio. (§§ 331, 359; Imperial Casualty, supra, 198 Cal. App. 3d at p. 182.) CIC proffers evidence of multiple concealments/ misrepresentations by Elias, but the court considers one to be sufficient for CIC to meet its initial burden. In particular, CIC proffers evidence that Elias, as a representative of Apec, signed and had submitted commercial insurance applications to CIC for four insurance policies with proposed inception dates of March 2016 through 2019, respectively.” In each of those applications is a question regarding Loss History requesting the applicant to “ENTER ALL CLAIMS OR LOSSES (REGARDLESS OF FAULT 11 “A representation is false when the facts fail to correspond with its assertions or stipulations.” (Ins. Code, §358.) 12 See Defendant/ Cross-Complainant Colony Insurance Company’s Separate Statement in Support of Motion for Summary Judgment Re: Cross-Complaint for Rescission (“CIC’s Separate Statement”), Fact Nos, 13, 25, 32, and 40. AND WHETHER OR NOT INSURED) OR OCCURRENCES THAT MAY GIVE RISE TO CLAIMS FOR THE PRIOR 5 YEARS (3 YEARS IN KS & NY).”13 Only in the 2016 application did Apec answer, “2 years ago paid by Insurance Company?” In applications for the subsequent three years, Apec checked the box, “Check here if none” and did not identify either of the complaints filed by the Brassfields prior to the Underlying Action.“ In 2016, CIC was not informed by Apec that the 2015 Brassfield complaint was pending against Apec.“ Throughout the 2018 application process, Apec concealed from CIC the existence of the 2015 and 2016 Brassfield complaints.” Elias/Apec filed responsive pleadings to the 2015 and 2016 Brassfield complaints.“ Apec did not provide notice of the 2015 Brassfield Complaint or the 2016 Brassfield Complaint to CIC in any of Apec’s insurance applications and supplemental applications submitted to CIC for the procurement of CIC’s four insurance policies in 2016, 2017, 2018, and 2019.19 In opposition, EIias/Apec contends the failure to identify the 2015 and 2016 Brassfield complaints do not constitute concealment or misrepresentations by arguing that the supplemental applications sought only “three years of loss history information” and the two earlier Brassfield complaints do not constitute losses as they do not reflect the payment of any claims. EIias/Apec note that the application language asking the applicant to enter all claims and losses is preceded by a heading entitled, “LOSS HISTORY” and argue the heading should be used to interpret the provision to mean that only losses must be identified. Even EIias/Apec’s own authority undermines their argument. That heading is not an operative term or provision itself. (Coit v. Jefferson Standard Life Ins. Co. (1946) 28 Cal.2d 1, 11 [168 P.2d 163] [caption in an insurance rider not the operative provision]; Westrec Marina Management, Inc. v. Arrowood Indemnity Co. (2008) 163 Cal.App.4th 1387, 1395 [78 Cal. Rptr. 3d 264] [“[a]|though the heading does not describe the effect of the provision the absence of a fully descriptive heading does not restrict the plain meaning of the provision”].) (Hervey v. Mercury Casualty Co. (201 0) 185 Cal.App.4th 954, 965 (Hervey); emphasis added.) It is true, as plaintiff contends, that the policy of insurance is to be read and construed as a whole and, more particularly, that the caption of the rider is to be read and construed with the language of the rider itself. (Ogburn v. Travelers Ins. Co., 207 Cal. 50, 52 [276 P. 1004]; Narver v. California State Life Ins. C0,, 211 Cal. 176 [294 P. 393].) But this argument makes obvious the antistrophe which defeats it: the language of the rider is explicit and clear; reading that language with the caption effectually resolves any ambiguity in the latter. (Coit v. Jefferson Standard Life Ins. Co. (1946) 28 Cal.2d 1, 11; emphasis added.) Likewise, any ambiguity of the heading, “Loss History,” is made explicit and clear by asking the applicant to “enter all claims or losses or occurrences,” notjust losses. Moreover, EIias/Apec’s own authority undermines the assertion that Elias understood the term loss does not include the 2015 or 2016 Brassfield complaints. (See Hervey, supra, 185 Cal.App.4th at p. 965-“to the extent Hervey's understanding of the policy is contrary to its 13 See CIC’s Separate Statement, Fact Nos. 15, 27, 34, and 42. 14 See CIC’s Separate Statement, Fact No. 15. 15 See CIC’s Separate Statement, Fact Nos. 27, 34, and 42. 16 See CIC’s Separate Statement, Fact No. 22. 17 See CIC’s Separate Statement, Fact No. 37. 18 See CIC’s Separate Statement, Fact Nos. 1 - 6. Defendant/ Cross-Complainant Colony Insurance Company’s Request for Judicial Notice in Support, etc. is GRANTED. (Evid. Code, §452, subd. (d); see also People v. Woodell (1998) 17 Ca|.4th 448, 455-- Evidence Code section 452 and 453 permit the trial court to “take judicial notice of the existence ofjudicial opinions and court documents, along with the truth of the results reached-in the documents such as orders, statements of decision, and judgments-but [the court] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.”.) 19 See CIC’s Separate Statement, Fact No. 7. explicit language, her subjective intent is not relevant.”) The applications for the various Policies each plainly request Elias/Apec to identify all claims and Elias/Apec’s failure to do so is concealment. Just as in LA Sound, Elias/Apec argues further that any concealment and/or misrepresentation was immaterial. “Materiality is to be determined not by the event, but solely by the probable and reasonable influence of the facts upon the party to whom the communication is due, in forming his estimate of the disadvantages of the proposed contract, or in making his inquiries.” (Ins. Code, §334.) “The fact that the insurer has demanded answers to specific questions in an application for insurance is in itself usually sufficient to establish materiality as a matter of law.” (LA Sound, supra, 156 Cal.App.4th at pp. 1268-1269 citing Thompson v. Occidental Life Ins. Co. (1973) 9 Cal.3d 904, 916.) Elias/Apec’s own authority is in accord: The general rules applicable to a determination of such materiality were well summarized by the Supreme Court in Thompson v. Occidental Life Ins. Co. (1973) 9 Cal.3d 904, 915-916 [109 Cal.Rptr. 473, 513 P.2d 353]. "It is generally held that an insurer has a right to know all that the applicant for insurance knows regarding the state of his health and medical history. [Citations.] Material misrepresentation or concealment of such facts are grounds for rescission of the policy, and an actual intent to deceive need not be shown. [Citations.] Materiality is determined solely by the probable and reasonable effect which truthful answers would have had upon the insurer. (Ins. Code, § 334; [citation].) The fact that the insurer has demanded answers to specific questions in an application for insurance is in itself usually sufficient to establish materiality as a matter of law. [Citations.]" These rules also find support in the express provisions of the Insurance Code where heavy burdens of disclosure are placed upon both parties to a contract of insurance and any material misrepresentation or the failure, whether intentional or unintentional, to provide requested information permits rescission of the policy by the injured party. (Imperial Casualty & Indem. Co. v. Sogomonian (1988) 198 Cal.App.3d 169, 179-180 (Imperial).) That is not to say, however, that a mere incorrect answer on an insurance application will give rise to a defense of fraud, where the true facts, if known, would not have made the contract less desirable to the insurer. Moreover, the trier of fact is not required to believe the "post mortem" testimony of an insurer's agents that insurance would have been refused had the true facts been disclosed. (Thompson v. Occidental Life Ins. Co., supra, 9 Cal.3d at p. 916.) Defendants, relying on this caveat, argue that the issue of materiality should not be resolved summarily but rather the trier of fact should determine if the omissions and false representations were material. However, that materiality, as Insurance Code section 334 tells us, must be determined "solely by the probable and reasonable influence" which the admittedly undisclosed information would have had upon Imperial's decision to issue the policy. This is a subjective test; the critical question is the effect truthful answers would have had on Imperial, not on some "average reasonable" insurer. (Burns v. Prudential Ins. Co. (1962) 201 Cal.App.2d 868, 871 [20 Cal.Rptr. 535].) Given this rule and the nature of the renewal, cancellation, litigation and loss history which defendants admittedly kept from Imperial, especially when such facts are viewed in light of their cumulative impact, it is difficult to understand what triable issues remain with respect to this question. Defendants offer us no evidentiary assistance on this point, but content themselves with the naked argument that since a jury might "disbelieve" all of the uncontradicted evidence presented by Imperial, they are entitled to a trial on the question of materiality. We disagree. We cannot review the application submitted by the defendants in this case without concluding that the information sought by Imperial and denied to it by the false negative answers and omissions of defendants were material to Imperial's decision to provide insurance coverage. That conclusion is the only one that reasonably can be drawn from the undisputed evidence presented. (Code Civ. Proc., § 437c, subd. (c); Hirsch v. Blish (1977) 76 Cal.App.3d 163, 166 [142 Cal.Rptr. 646].) It is supported by the nature of the insurance coverage which defendant sought, the quality and quantity of the information which was not disclosed and the fact that Imperial specifically requested the information on its application and thereafter relied upon it in issuing the policy. The uncontradicted evidence of Imperial's underwriter confirms the importance which Imperial attached to the information. Under these circumstances, the materiality of defendants' concealment is established as a matter of law. (Burns v. Prudential Ins. Co., supra, 201 Cal.App.2d 868, 871-872.) (Imperial, supra, 198 Cal.App.3d at pp. 181-182.) To support its motion for summary judgment, CIC proffers the declaration of Traci Byrum (“Byrum”), Assistant Vice President in Underwriting for CIC who states, in relevant part, “Had Apec provided truthful, accurate and complete answers in the application materials, CIC would not have issued the Policies to Apec Construction.”20 Just as in LA Sound, the concealment is “material because it affected [CIC’s] evaluation of risk and the amount of the premium charged.” (LA Sound, supra, 156 Cal.App.4th at p. 1269.) EIias/Apec take issue with the fact that Byrum is not the specific underwriter who reviewed the applications at issue here. The court in LA Sound rejected a similar argument and so will this court.“ Contrary to plaintiffs' claim, St. Paul had no obligation to produce the specific underwriter who reviewed the application. Materiality may be shown by the effect of the misrepresentation on the “ ‘Iikely practice of the insurance company’ ”-“ ‘[t]he test is the effect which truthful answers would have had upon the insurer.’ ” (Ibid., italics added.) The senior underwriter's testimony regarding St. Paul's practices for insuring joint ventures sufficiently shows the material effect that truthful answers about the joint venture would have had upon St. Paul. (Ibid) In spite of Byrum’s declaration, Elias/ Apec contend a triable issue of material fact exists with regard to the materiality of the concealment/ misrepresentation. Elias/ Apec contend an inference can be drawn that CIC did not find the concealment/ misrepresentations to be material based on the fact that on or about 17 March 2020 (subsequent to CIC’s 26 November 2019 cross-complaint alleging Elias/ Apec’s concealment/ misrepresentations), CIC renewed Apec’s commercial general liability coverage providing the same terms and conditions as before for no increased premium.22 Since materiality under Insurance Code section 334 is a subjective test viewed from the insurer’s perspective, Elias/ Apec will, in all likelihood, only be able to challenge the materiality of any concealment/ misrepresentation through circumstantial evidence and inferences drawn therefrom. Unlike Imperial where the underwriter’s statement of materiality was undisputed, Elias/ Apec’s evidence in reply at least creates a triable issue with regard to whether CIC deemed the concealment/ misrepresentations to be material. In reply, CIC contends Elias/ Apec’s assertion that CIC renewed the policy is deliberately false and that CIC rescinded this latest policy on 10 September 2020 by issuing a letter of rescission and returning Apec’s premium of $1 ,657.45.23 However, the court cannot resolve this conflict on a motion for summaryjudgment as this would require the court to weigh the evidence and “[t]he trial court may not weigh the evidence in the manner of a 20 See 119 to the Declaration of Traci Byrum in Support of Colony Insurance Company’s Motion for Summary Judgment, etc. 21 Plaintiff, Paul Elias, Individually and dba Apec Construction’s Objections to Colony’s Evidence, etc., Objection Nos. 1 - 3 to the Declaration of Traci Byrum, are OVERRULED. 22 See Plaintiff’s Separate Statement of Additional Facts in Dispute in Support of Revised Opposition, etc., Fact No. 9. Cross- Complainant Colony Insurance Company’s Objections to Plaintiffs Evidence in its Supplemental Opposition, etc., Objection No. 8 is OVERRULED. CIC objects pursuant to Evidence Code section 1523, subdivision (a) states, in part, “oral testimony is not admissible to prove the content of a writing.” Paragraph 9 of the Elias Declaration is not being offered to prove the content of a writing. CIC also objects pursuant to Evidence Code sections 350 and 352 which states, respectively, “No evidence is admissible except relevant evidence,” and “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission wi|| (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” The court finds the evidence to be relevant and its probative value is not substantially outweighed by the probability that its admission will necessitate undue consumption of time or create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. 23 See 113 and Exh. 26 to the Declaration of Traci Byrum in Support of Colony Insurance Company’s Reply, etc. fact finder to determine whose version is more likely true.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832,840) Accordingly, defendant/ cross-complainant CIC’s motion for summaryjudgment on its cross-complaint for rescission is DENIED. IV. Tentative Ruling. The tentative ruling was duly posted. V. Conclusion and Order. Defendant/ cross-complainant CIC’s motion for summary judgment on its cross-complaint for rescission is DENIED. DATED: HON. SOCRATES PETER MANOUKIAN Iudge 0f the Superior Court County 0f Santa Clara - 00000 - Calendar Line 6 SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA DEPARTMENT 20 161 North First Street, San Jose, CA 95113 408.882.2320 - 408.882.2296 (fax) smanoukian@scscourt.org http://www.scscourt.org (For Clerk's Use Only) CASE NO.: 20CV369368 Rabindra Chakraborty et a1. V. Mortgage Lender Services, Inc. DATE: 19 January 2021 TIME: 9:00 am LINE NUMBER: 6, 7 This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 20 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 20 at 408.808.6856 and the opposing party no later than 4:00 PM on 15 January 2021. Please specify the issue to be contested when calling the Court and Counsel. Order on Motion of Tony Cara, Esq. and CDLG, PC to be Relieved As Counsel for Plaintiffs. |. Statement of Facts. The motion of Tony Cara, Esq. and CDLG, PC to withdraw as counsel for plaintiffs Rabindra Chakraborty and Ruma Chakraborty complies with Rule of Court 3.1362 and is GRANTED for good cause shown as follows. Counsel declares generally declares that the attorney-client relationship has been compromised. The clients have been non-responsive and uncooperative regarding the continuation of the case. There have been several attempts to communicate with the clients; specifically, multiple phone calls have been made and voice messages have been left. However the clients fail to return phone calls. Moreover, the clients are in breach of the retainer agreement due to nonpayment of attorney fees. Plaintiff’s counsel’s papers state that he brings this motion pursuant to Rules ofProfessionaI Conduct, rule 3-700. That rule was renumbered effective 1 November 2018 as Rule 1.16 “Declining or Terminating Representation.” As change of counsel for a party in a case is a serious matter, and the purpose of Code of Civil Procedure, § 284 and associated procedures regarding substitution of counsel “is to have the record of representation clear so the parties may be certain with whom they are authorized to deal” (McMillan v. Shadow Ridge at Oak Park Homeowner’s Ass’n (2008) 165 Cal.App.4th 960, 965), service of a motion effecting change of counsel must be conducted and certified in accordance with the basic procedural stipulations of rule 3.1632(d). California Rules of Court, rule 3.1362 lays out the procedure for an attorney to be relieved as counsel under Code of Civil Procedure § 284(2). In relevant part, rule 3.1362 has four requirements. First, subsection (a) provides that the notice of motion and motion “must be directed to the client made on the Notice of Motion and Motion to Be Relieved as CounseI--Civil (form MC-051 ).” (Rules of Court, rule 3.1 362(a).) Second, subsection (c) provides that the motion “must be accompanied by a declaration on the Declaration in Support ofAttorney’s Motion to Be Relieved as Counsel--Civil (form MC-052),” in which the attorney “must state in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284(2) is brought instead of filing a consent under Code of Civil Procedure, § 284(1 ).” (Rules of Court, rule 3.1 362(c).) Third, subsection (e) provides that the proposed order relieving counsel “must be prepared on the Order Granting Attorney’s Motion to Be Relieved as Counsel--Civil (form MC-053),” including specifying “all hearing dates scheduled in the action or proceeding . . . if known.” (Rules of Court, rule 3.1362(9).) Fourth, subsection (d) provides that the “notice of motion and motion, the declaration, and the proposed order must be served on the client and on all other parties who have appeared in the case,” with a declaration stating facts showing the service address for the client is the current residence or business address of the client. (Rules of Court, rule 3.1362(d).) A proposed order is included in the moving papers. The proposed order states that the next court date is 15 December 2020 at 3:00 PM in Department 20. That time has come and gone. The Court will assign a future date on 13 April 2021 at 10:00 AM in Department 20 for a Case Management Conference. The Order will take effect upon the filing and service of the executed order of this Court and an order that complies with the Rules of Court. ||. Tentative Ruling. The tentative ruling in this matter was duly posted. |||. Conclusion and Order. The motion of Tony Cara, Esq. and CDLG, PC to be relieved as counsel for plaintiffs is GRANTED. The Order will take effect upon the filing and service of the executed order of this Court and an order that complies with the Rules of Court. DATED: HON. SOCRATES PETER MANOUKIAN Iudge 0f the Superior Court County of Santa Clam - 00000 - Calendar Line 7 - 00000 - Calendar Line 8 SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA DEPARTMENT 20 161 North First Street, San Jose, CA 95113 408.882.2320 - 408.882.2296 (fax) smanoukian@scscourt.org http://www.scscourt.org (For Clerk's Use Only) CASE NO.: 20CV369368 Rabindra Chakraborty, Ruma Chakraborty V. Mortgage Lender Services, Inc. DATE: 19 January 2021 TIME: 9:00 am LINE NUMBER: 8, 9, 10 This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 20 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 20 at 408.808.6856 and the opposing party no later than 4:00 PM on 15 January 2021. Please specify the issue to be contested when calling the Court and Counsel. Orders on Motions of Defendant Milestone Financial, LLC to Compel Plaintiffs to Respond to Special Interrogatories, Request for Admissions of Documents, and to Deem Requests for Admissions to Be Admitted; Request for Monetary Sanctions. |. Statement of Facts. Plaintiff filed this complaint on 13 August 2020.24 Plaintiffs allege that they are the rightful owners of real property known as 1298 Pumpkin Terrace, Sunnyvale. It was their personal residence. They claim that a foreclosure sale of the property for which a trustee’s deed upon sale was issued to a third-party was wrongful and asserted several causes of action for the violations of Civil Code, §§ 2924, 2924.9, Business & Professions Code, § 17200, wrongful foreclosure, negligence and cancellation of written instruments. On 9 September 2020 moving party Milestone served request for admissions, request for production of documents, and special interrogatories. Responses were due on or before 12 October 2020 but none were forthcoming. On 25 October 2020, Milestone sent an email confirming that all objections were waived and requested responses to the discovery requests. Counsel for plaintiffs responded that the clients were not cooperating and that he was going to file a motion to withdraw. ||. Motion to Compel Responses to Discovery Requests. Milestone has now filed motions to compel responses to the foregoing discovery and seeks monetary sanctions. |||. Analysis. 24 This Department intends to comply with the time requirements of the Trial Court Delay Reduction Act (Government Code, §§ 68600-68620). The California Rules of Court state that the goal of each trial court should be to manage limited and unlimited civil cases from filing so that 100 percent are disposed of within 24 months. (Ca. St. Civil Rules of Court, Rule 3.714(b)(1)(C) and (b)(2)(C). A. Introduction. The purpose of the civil discovery act was to do away with the sporting theory of litigation, to take the game element out of trial preparation, and eliminate surprise at trial by enabling the parties to obtain the evidence necessary to evaluate and solve their disputes beforehand. Each of these purposes was generally expressed in the case of Hickman v. Taylor, 329 U.S., which interpreted the federal rules of discovery in 1947, and of which the California Legislature is deemed to have been cognizant when adopting those rules. (Greyhound Corp. v. Superior Court (1961) 56 Ca|.2d 355, 376.)25 B. Interrogatories. 1. Service of Interrogatories. The rules and procedures governing interrogatories is set forth in Code of Civil Procedure, § 2030.010 et seq. Interrogatories may be served without leave of court any time during the action, with a few exceptions which include: (1) during the first 10 days after service of summons or defendant’s appearance in the action (whichever is first); and (2) cutoff on discovery before trial (Code of Civil Procedure, § 203020).) Interrogatories may be sent to any other party to the action (Code of Civil Procedure, § 2030.010(a).) The party to whom interrogatories are directed may promptly move for a protective order (Code of Civil Procedure, § 2030.090(a).) 2. Responses To Interrogatories. Unless excused by protective order, the party to whom the interrogatories are directed is under a duty to respond to each question separately, under oath, and within the time limits. (Code of Civil Procedure, § 2030.210(a).) The response may be: (1) an answer; (2) an objection; or (3) an election to allow inspection and copying of records. (Id.) A response that indicates an inability to respond is insufficient. If the responding party lacks personal knowledge sufficient to respond, he or she may state such only after making a reasonable good faith effort to obtain the information through other persons or organizations (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal App 4th 390, 406).) The response to the interrogatories is due within 30 days from the date the interrogatories were served. (Code of Civil Procedure, § 2030.260(a).) The court may shorten or extend time for response by motion from one of the parties Id. Similarly, the parties may stipulate to an extension of time for responding, which must be in writing. (Code of Civil Procedure, § 2030.270). 3. Waiver of Privilege if not Timely. Failing to respond within the time limit described above waives most objections to the interrogatories, which includes claims of privilege and work product. (Code of Civil Procedure, § §2030.290(a); (see Leach v. Superior Court (Markum) (1980) 111 Cal App 3d 902, 905-906).) The delay in responding also waives the option to produce writings in under Code of Civil Procedure, § 2030.230 in lieu of the information contained within them (Code of Civil Procedure, § 2030.290(a).) 4. Motion to Compel ResponsesIFurther Responses. If a party fails to respond at all or responds with objections or incomplete answers, the propounding party’s remedy is to seek a court order compelling answers or further answers (Code of Civil Procedure, § 2030290).) The burden to enforce discovery is on the propounding party, otherwise no penalty attaches to the responding failures inadequate responses. (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 334).) The motion of Milestone to compel responses to the special interrogatories is GRANTED. Plaintiffs are to provide code compliant responses within 30 days of the date of the filing and service of this Order. 25 Absent contrary precedent under state law, California courts have found federal decisions “persuasive” in interpreting similar provisions of the California Act. (See Greyhound Corp. v. Superior Court of Merced County (1961) 56 Ca|.2d 355, 401; Nagle v. Superior Court (1 994) 28 Cal.App.4th 1465, 1468; Vasquez v. California School of Culinary Arts, Inc. (2014) 230 Cal.App.4th 35, 42-43; Weil & Brown, Civil Procedure Before Trial (The Rutter Group 2019) § 8:19, p. 8A-10.) C. Requests for Admissions 1. Service of Requests for Admissions. The rules and procedures governing requests for admissions is set forth in Code of Civil Procedure, § 2033.010 et seq. The primary purpose of RFAs is to set at rest triable issues so that they will not have to be tried, and the trial may be expedited. (Orange County Water District. v. The Arnold Eng. Co. (2018) 31 Cal App.5th 96, 115). RFAs may be served at any time during the lawsuit with a few exceptions including: (1) the first 10 days after service of summons or defendant’s appearance in the action (whichever is first); and (2) cutoff on discovery before trial (Code of Civil Procedure, § 2033.20). RFAs may be served on any other party to the action (Code of Civil Procedure, 2033.010). Instead of responding to the RFAs, the party whom was served may promptly move for a protective order (Code of Civil Procedure, § 2033.080). 2. Responses to Requests for Admissions. The time limit for responding to Requests for Admissions (“RFAs”) is 30 days from the date the RFAs were served. (Code of Civil Procedure, § 2033.250). The Court has the power to extend or shorten the time allowed for response. Id. Additionally, the parties may agree to extend the time allowed to respond to some or all of the RFAs, but it must be confirmed in writing. (Code of Civil Procedure, § 2033.260.) The response to the RFAS must contain either an answer or an objection to the particular RFA (Code of Civil Procedure, § 2033.210(b).) If there is no objection to a particular RFA, the response must be one of the following: (1) an admission; (2) a denial; or (3) a statement claiming an inability to admit or deny. (Code of Civil Procedure, § 2033.220(b).) 3. Waiver of Privilege if not Timely. Failure to timely respond to RFAs results in a waiver of all objections to the requests, including claims of privilege or work product protection (Code of Civil Procedure, § 2033.280(a).) The court may relieve a party who fails to file a timely response before ordering the matters to be “deemed admitted” if the court finds: (1) the party failed to serve timely responses due to mistake, inadvertence or excusable neglect; and (2) the party has subsequently served a response with is substantially compliant. (Code of Civil Procedure, § 2033.280(a).) Relief may even be granted by the court if no responses were served. (Wilcox v. Birtwhistle (1999) 21 Cal.App.4th 973, 983). Once the court orders the RFAs “deemed admitted” the party in default may file a motion to withdraw the deemed admission (Code of Civil Procedure, § 2033.300). 4. Motion to Deem RFAs to Be Admitted. Code of Civil Procedure, § 2033.280(a) provides that if a party to whom requests for admissions have been directed fails to serve a timely response, that party thereby waives any objection to the requests, including one based on privilege or on the protection for work product under Code of Civil Procedure, § 2018.010 et seq. Code of Civil Procedure, § 2033.280(b) provides that the requesting party may move for an order that the truth of any facts specified in the requests be deemed admitted. The Court shall make this order unless it finds that the party to whom the requests for admission have been direct and has served, before the hearing on the motion, a proposed response to the request for admissions that is in substantial compliance with Code of Civil Procedure, §§ Sections 2033.210, 2033.220, and 2033.230. (Code of Civil Procedure, § 2033.280(c).) Failing to timely respond to RFAs does not result in automatic admissions. The propounder of the RFAs must move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted. (Code of Civil Procedure, § 2033.280(b).) There is no time limit on a motion to have matters deemed admitted, however if the motion is delayed too long, the responding party may object or seek a protective order. (Brigante v. Huang (1993) 20 Cal.App.4th 1569, 1584). There are no specific timing restrictions in Code of Civil Procedure, § 2033.280(b) for the bringing of a motion deeming matters admitted, unlike the 45-day limitation for compelling further responses under Code of Civil Procedure, § 2033.290. Generally a party must make a reasonable and good faith attempt at an informal resolution of any discovery dispute before bringing a motion to compel responses. However, this provision does not apply if the propounding party has received no responses whatsoever to the discovery requests. (Leach v. Superior Court of Shasta County (1980) 111 Cal.App.3d 902, 905-906.) 5. Effect of Serving Responses. The Court shall grant the motion unless it finds that the party to whom the requests for admissions have been directed has served, before the hearing on the motion, a proposed response in substantial compliance with Code of Civil Procedure, § 2033.220. (See Code of Civil Procedure, § 2033.280(c); St. Mary v. Superior Court (Schellenberger) (2014) 223 Cal.App.4th 762, 778; see Weil & Brown, California Practice Guide, Civil Procedure before Trial, § 8:1374 (2019).) The request of Milestone to deem the requests for admissions to be admitted is GRANTED. D. Requests for Production. 1. Service of Requests for Production/Inspection. The rules and procedures governing requests for production (also referred to as inspection demands) are governed by Code of Civil Procedure, § 2031.010 et. seq. A demand may be served on any other party to the action (Code of Civil Procedure, § 2031.010). A demand may be used to obtain inspection, copying, testing or sampling of: (1) documents, (2) tangible things, (3) land, and (4) electronically stored information in the possession, custody or control of another party. (Id.) These demands are limited to matters within the permissible scope of discovery. (Id.) A demand may be served at any time during the lawsuit with a few exceptions including: (1) the first 10 days after service of summons or defendant’s appearance in the action (whichever is first); and (2) cutoff on discovery before trial (Code of Civil Procedure, § 2031.020). The party seeking discovery serves a demand for inspection on the party believed to be in possession, custody or control of the documents or property to be inspected (Code of Civil Procedure, § 2031.040).) Unlike interrogatories and RFAs, there is no limit on the number of demands that can be served. Instead of responding to the demand, the party to whom it is directed, or a third party whose privacy would be infringed by disclosure of the documents, may seek a protective order (Code of Civil Procedure, § 2031.060). 2. Responses to Requests for Production/Inspection. The party to whom a demand is served must respond within 30 days after service, unless excused by protective order. (Code of Civil Procedure, § 2031.260.) The court has the power to extend or shorten the time allowed for response. Id. Additionally, the parties may agree to extend the time allowed to respond, but it must be confirmed in writing. (Code of Civil Procedure, § 2031.270.) 3. Waiver of Privilege If Responses Are Not Timely. Failure to timely respond to a demand results in a waiver of all objections to the requests, including claims of privilege or work product protection (Code of Civil Procedure, § 2031.300(a).) The court has the authority to grant relief from such waiver if (1) the party belatedly served a response that is in substantial compliance; and (2) the party filed a noticed motion supported by declaration showing that the delay resulted from mistake, inadvertence or excusable neglect. (Code of Civil Procedure, § 2031.300(a).) 4. Motion to Compel Responses/Further Responses. A motion to compel may be made if: (1) there is no response at all; (2) the responses have been made but they are not satisfactory to the demanding party; or (3) where an agreement to comply has been, but compliance is not forthcoming. (CCP § 2031.300-2031.320). In ruling on a motion to compel, the court may require the party who objects to a request, on the ground of privilege, to prepare and serve a privilege log. (Best Products, Inc. v. Superior Court (Granatelli Motorsports, Inc.) (2004) 119 Cal.App.4th 1181, 1188-1189).) The motion of Milestone to compel responses to the request for production is GRANTED. Plaintiffs are to provide code compliant responses within 30 days of the date of the filing and service of this Order. E. Waiver of Privilege if Responses Are Not Timely. Failing to respond within the time limit described above waives most objections to the interrogatories, which includes claims of privilege and work product. (Code of Civil Procedure, § 2030.290(a); (see Leach v. Superior Court (Markum) (1980) 111 Cal.App.3d 902, 905-906).) The delay in responding also waives the option to produce writings in under Code of Civil Procedure, § 2030.230 in lieu of the information contained within them (Code of Civil Procedure, § 2030.290(a).) There are some case law exceptions to waiver. One case holds that a party may obtain a protective order limiting discovery of objectionable information even after they have waived their right to object. (Stadish v. Superior Court (Southern Calif. Gas Co.) (1999) 71 Cal.App.4th 1130,1144). Further, courts seem reluctant to find waiver where privacy rights are at issue. (Heda v. Superior Court (Davis) (1990) 225 Cal.App.3d 525, 530). F. Sanctions. Code of Civil Procedure, § 2023.040 states: “A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.” It is mandatory that a monetary sanction be imposed on the party, or attorney, or both, whose failure to serve a timely response necessitated the filing of the deemed-admitted motion unless the court finds “substantial justification” for that party's position or other circumstances making the sanction “unjust.” (Code of Civil Procedure, §§ 2030.290(c); 2031.300(c); 2033.280(c).) Sanctions can be avoided by serving responses before the motion is filed, which eliminates the ground for the motion. (St. Mary v. Superior Court (Schellenberg) (2014) 223 Cal.App.4th 762, 784). The costs and expenses award is limited to reasonable expenses incurred which includes reasonable attorney's fees in proving matters unreasonably denied. If the motion to compel responses to proper discovery requests is granted, the court shall order the party to whom the discovery was directed to pay the propounding party's reasonable expenses, including attorney fees, in enforcing discovery “unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code of Civil Procedure, §§ 2030.300(d); 2031.300(c); 2023.010(d); 2023.030(a).) Further, Code of Civil Procedure, § 2023.050, effective January 1, 2020, imposes mandatory sanctions on motions involving request for production of documents. Sanctions under this provision are mandatory should the court find, in relevant part, that the party, person, or attorney did not respond in good faith to a request for production of documents. The request of Milestone Financial LLC for monetary sanctions is code compliant and GRANTED. Plaintiffs shall jointly pay the sum of $3,060.00 to counsel for Milestone Financial LLC within 30 days of the date of the filing of service of this Order. IV. Tentative Ruling. The tentative ruling in this matter was duly posted. V. Conclusion and Order. The motion of Milestone Financial LLC to compel plaintiffs to respond to special interrogatories and request for production of documents is GRANTED. Plaintiffs are to provide code compliant responses within 30 days of the date of the filing and service of this Order. The motion of Milestone Financial LLC to deem requests for admissions served upon both plaintiffs to be admitted is GRANTED. The request of Milestone Financial LLC for monetary sanctions is code compliant and GRANTED. Plaintiffs shall jointly pay the sum of $3,060.00 to counsel for Milestone Financial LLC within 30 days of the date of the filing of service of this Order. DATED: HON. SOCRATES PETER MANOUKIAN Judge 0f the Superior Court County 0f Santa Clara - 00000 - Calendar Line 9 - 00000 - Calendar Line 10 - 00000 - Calendar Line 11 - 00000 - Calendar Line 12 SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA DEPARTMENT 20 161 North First Street, San Jose, CA 95113 408.882.2320 - 408.882.2296 (fax) smanoukian@scscourt.org http://www.scscourt.org (For Clerk's Use Only) CASE NO.: 20CV368963 Elsa Lily Morales De Lopez vs Rasier LLC et a1 DATE: 19 January 2021 TIME: 9:00 am LINE NUMBER: 12, 13 This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 20 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 20 at 408.808.6856 and the opposing party no later than 4:00 PM on 15 January 2021. Please specify the issue to be contested when calling the Court and Counsel. Orders on Motions of: 1. Plaintiff for Attorneys Fees, Costs and Monetary Sanctions; and 2. Plaintiff to Compel Arbitration and Set Date for Arbitration Completion. |. Statement of Facts. Petitioner Elsa Lily Morales De Lopez filed this petition to compel arbitration on 24 July 2020.26 Petitioner was involved in an automobile accident on 7 January 2019 when the vehicle in which she was a passenger collided with a third-party. She resolved the matter with the third-party on 4 April 2020 for a policy-Iimit settlement. Ms. Morales De Lopez now is seeking an opportunity for additional compensation pursuant to the underinsured provision of the automobile insurance policy with James River insurance Company, the policy covering the car in which she was a passenger. Despite providing all of the information required by the carrier and herself demanding arbitration, respondent has not agreed to arbitration nor has it responded to overtures of the petitioner. Respondent opposes the motion. A chronology is useful: 30 June 2020: Petitioner, through her counsel, sent a letter to respondent demanding arbitration. The carrier contacted current defense counsel. 16 July 2020: Defense Counsel responded via email to Counsel for Petitioner. He acknowledged receipt of the claim and documentation of petitioner’s damages pursuant to Insurance Code, § 11580.2(0).) 17 July 2020: Petitioner served a notice of motion and motion to compel arbitration etc. 17 July 2020: Two hours after the motion was electronically served, defense counsel contacted all three attorneys listed for petitioner introducing himself. Defense counsel asked for withdrawal of the motion and asked 26 This Department intends to comply with the time requirements of the Trial Court Delay Reduction Act (Government Code, §§ 68600-68620). The California Rules of Court state that the goal of each trial court should be to manage limited and unlimited civil cases from filing so that 100 percent are disposed of within 24 months. (Ca. St. Civil Rules of Court, Rule 3.714(b)(1)(C) and (b)(2)(C). for four items that would be needed prior to agreeing to an arbitrator. 21 July 2020: As that solicitation went unrequited, defense counsel followed up again with a second email seeking withdrawal of the motion. 21 July 2020: Counsel for petitioner responded, pointing out that medical records had been provided to the carrier and that a settlement offer had been made by the carrier. “I can not [sic] agreed to take the motion to compel arbitration off calendar at this point.”27 3 August 2020:23 Defense Counsel wrote to Counsel for Petitioner again, asking to take the motion off calendar is premature. Defense counsel reiterated that pursuant to Insurance Code, § 11580.2(0), the requested information is to be provided within 15 days. Defense Counsel memorialized in indication of $45,000 in medical specials and a policy limit demand of $1 ,000,000.00. 3 August 2020: Counsel for Petitioner did not change his position. As it turns out, the motion of Petitioner to compel arbitration appears to have been improperly filed without a hearing date. 26 August 2020: Defense Counsel serves discovery requests: 26 October 2020: Petitioner served responses to discovery requests which were received by defense counsel on this date. And on and on and on ..... ||. Petition to Compel Arbitration. Code of Civil Procedure, § 1281 .6 sets out the manner 0f commencing an arbitration proceeding and the manner by which to select an arbitrator. |||. Analysis. It is it interesting if not downright curious that it is not until the reply papers filed by Petitioner does this Court learn that the claimed medical treatment as a current cost of $558,678.09 as well as a claim of a traumatic brain injury. IV. Tentative Ruling. The tentative ruling in this matter was duly posted. V. Conclusion and Order. The petition is GRANTED. Neither side will be entitled to sanctions. Both sides are reminded to read the banner at the top of this Court’s Tentative Ruling page. The matter will be continued for an ADR review 0n 29 July 2021 at 10:30 AM in this Department. 27 Well, in point of fact, he could have and should have. 28 This Court has reason to believe that the date provided on the declaration of Mr. Prager, page 3, line 2 was an honest mistake. DATED: HON. SOCRATES PETER MANOUKIAN Iudge of the Superior Court County 0f Santa Clam - 00000 - Calendar Line 13 SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA DEPARTMENT 20 161 North First Street, San Jose, CA 95113 408.882.2320 - 408.882.2296 (fax) smanoukian@scscourt.org http://www.scscourt.org (For Clerk's Use Only) CASE NO.: 20CV368963 Elsa Lily Morales De Lopez vs Rasier LLC et a1 DATE: 19 January 2021 TIME: 9:00 am LINE NUMBER: 12, 13 This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 20 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 20 at 408.808.6856 and the opposing party no later than 4:00 PM on 15 January 2021. Please specify the issue to be contested when calling the Court and Counsel. Orders on Motions of: 1. Plaintiff for Attorneys Fees, Costs and Monetary Sanctions; and 2. Plaintiff to Compel Arbitration and Set Date for Arbitration Completion. |. Statement of Facts. Petitioner Elsa Lily Morales De Lopez filed this petition to compel arbitration on 24 July 2020.29 Petitioner was involved in an automobile accident on 7 January 2019 when the vehicle in which she was a passenger collided with a third-party. She resolved the matter with the third-party on 4 April 2020 for a policy-Iimit settlement. Ms. Morales De Lopez now is seeking an opportunity for additional compensation pursuant to the underinsured provision of the automobile insurance policy with James River insurance Company, the policy covering the car in which she was a passenger. Despite providing all of the information required by the carrier and herself demanding arbitration, respondent has not agreed to arbitration nor has it responded to overtures of the petitioner. Respondent opposes the motion. A chronology is useful: 30 June 2020: Petitioner, through her counsel, sent a letter to respondent demanding arbitration. The carrier contacted current defense counsel. 16 July 2020: Defense Counsel responded via email to Counsel for Petitioner. He acknowledged receipt of the claim and documentation of petitioner’s damages pursuant to Insurance Code, § 11580.2(0).) 17 July 2020: Petitioner served a notice of motion and motion to compel arbitration etc. 17 July 2020: Two hours after the motion was electronically served, defense counsel contacted all three attorneys listed for petitioner introducing himself. Defense counsel asked for withdrawal of the motion and asked 29 This Department intends to comply with the time requirements of the Trial Court Delay Reduction Act (Government Code, §§ 68600-68620). The California Rules of Court state that the goal of each trial court should be to manage limited and unlimited civil cases from filing so that 100 percent are disposed of within 24 months. (Ca. St. Civil Rules of Court, Rule 3.714(b)(1)(C) and (b)(2)(C). for four items that would be needed prior to agreeing to an arbitrator. 21 July 2020: As that solicitation went unrequited, defense counsel followed up again with a second email seeking withdrawal of the motion. 21 July 2020: Counsel for petitioner responded, pointing out that medical records had been provided to the carrier and that a settlement offer had been made by the carrier. “I can not [sic] agreed to take the motion to compel arbitration off calendar at this point.”30 3 August 2020:31 Defense Counsel wrote to Counsel for Petitioner again, asking to take the motion off calendar is premature. Defense counsel reiterated that pursuant to Insurance Code, § 11580.2(0), the requested information is to be provided within 15 days. Defense Counsel memorialized in indication of $45,000 in medical specials and a policy limit demand of $1 ,000,000.00. 3 August 2020: Counsel for Petitioner did not change his position. As it turns out, the motion of Petitioner to compel arbitration appears to have been improperly filed without a hearing date. 26 August 2020: Defense Counsel serves discovery requests: 26 October 2020: Petitioner served responses to discovery requests which were received by defense counsel on this date. And on and on and on ..... ||. Petition to Compel Arbitration. Code of Civil Procedure, § 1281 .6 sets out the manner 0f commencing an arbitration proceeding and the manner by which to select an arbitrator. |||. Analysis. It is it interesting if not downright curious that it is not until the reply papers filed by Petitioner does this Court learn that the claimed medical treatment as a current cost of $558,678.09 as well as a claim of a traumatic brain injury. IV. Tentative Ruling. The tentative ruling in this matter was duly posted. V. Conclusion and Order. The petition is GRANTED. Neither side will be entitled to sanctions. Both sides are reminded to read the banner at the top of this Court’s Tentative Ruling page. The matter will be continued for an ADR review 0n 29 July 2021 at 10:30 AM in this Department. 30 Well, in point of fact, he could have and should have. 31 This Court has reason to believe that the date provided on the declaration of Mr. Prager, page 3, line 2 was an honest mistake. DATED: HON. SOCRATES PETER MANOUKIAN Iudge of the Superior Court County 0f Santa Clam - 00000 - Calendar Line 14 SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA DEPARTMENT 20 161 North First Street, San Jose, CA 95113 408.882.2320 - 408.882.2296 (fax) smanoukian@scscourt.org http://www.scscourt.org (For Clerk's Use Only) CASE NO.: 17CV307152 State Farm etc. V. Sergio - Aarron Medina-Millan et a1 DATE: 19 January 2021 TIME: 9:00 am LINE NUMBER: 14 This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 20 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 20 at 408.808.6856 and the opposing party no later than 4:00 PM on 15 January 2021. Please specify the issue to be contested when calling the Court and Counsel. Order on Motion of Plaintiff State Farm Mutual Automobile Insurance Company to Enforce Settlement Agreement and Enter Judgment. |. Statement of Facts. Plaintiff filed this complaint on 9 March 2017.32 Defendants answered the complaint on 13 December 2017 On 28 May 2014, plaintiff’s insured was involved in a motor vehicle collision caused by defendants.” Pursuant to its policy with its insured, plaintiff paid $20,01 1 .41 on behalf of its insured. On 9 March 2017, plaintiff filed a subrogation action against defendant seeking that amount. On 5 May 2019, a settlement agreement was achieved wherein the parties agreed to resolve the matter for $17,800 pursuant to a stipulation for settlement and order. Defendant’s insurance carrierwas to pay $10,000 towards the settlement. Defendant was going to pay to plaintiff a total of $7800.00 by a $130 down payment upon the signing of the settlement agreement, no later than 15 June 2018. Defendant was then going to pay $130 on the 15th day of each month until the full amount was paid. The settlement agreement is attached. Provisions for default are included. After notice of defaults, defendant has the opportunity to remedy the default within 1O days. If defendant does not remedy the default, the attorney may, on ex parte motion, submit an order to this Court for entry ofjudgment against defendant without further notice. The judgment would be in the amount of $20,01 1 .41, plus interest at 7% per year from the date of default, costs of suit as well as any additional costs and attorney fees. Defendant would receive credit for payments made by his carrier and by him. Defendant’s insurance carrier paid $10,000.00. However, plaintiff has only paid $1 ,695.00. 32 This Department intends to comply with the time requirements of the Trial Court Delay Reduction Act (Government Code, §§ 68600-68620). The California Rules of Court state that the goal of each trial court should be to manage limited and unlimited civil cases from filing so that 100 percent are disposed of within 24 months. (Ca. St. Civil Rules of Court, Rule 3.714(b)(1)(C) and (b)(2)(C). 33 The two defendants in the case are Sergio-Aaron Medina-Milan and Roberto Ramirez-Gomez. The legacy complaint is not available to this Court who has no idea 0f the relationship to each other. Plaintiff has provided written notices of default to defendant on three occasions but defendant has failed to remedy the default. Plaintiff requests this Court to order enforcement of the settlement agreement and enter judgment in the amount of $11,506.16. Both defendants oppose the motion. Mr. Medina-Milan admits that he entered into the agreement with every intent to comply with the terms. Apparently at some point he was hit by a car and ended up in a hospital. Disabled, he was unable to work to make payments. He was able to return to work in November 2019 as a waiter. Four months later, the Covid crisis hit and he has been living on unemployment benefits for the past 10 months. Mr. Medina-Milan also contends that he never received proper notices of default. Notices were sent to an address in Mountain View at which he no longer resides. No notices were sent to his counsel of record. Finally, his attorney learned that State Farm was communicating with him directly despite the fact that he has been represented by counsel. II. Motion to Enforce Settlement (Code of Civil Procedure, § 664.6). Code of Civil Procedure, §664.6, provides: “If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” III. Analysis. Code of Civil Procedure, § 664.6 requires this Court to determine whether the parties entered into a valid and binding settlement. (Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1360.) “A trial court, when ruling on a section 664.6 motion, acts as a trier of fact.” (Skulnick v. Roberts Express, Inc. (1992) 2 Cal.App.4th 884, 889.) The “express authorization for trial courts to determine whether a settlement has occurred is an implicit authorization for the trial court to interpret the terms and conditions of settlement.” (Fiore v. Alvord (1985) 182 Cal.App.3d 561, 565.) “A settlement agreement, like any other contract, is unenforceable if the parties fail to agree on a material term or if a material term is not reasonably certain.” (Lindsay v. Lewandowski (2006) 139 Cal.App.4th 1618, 1622.) However, this has nothing to do with whether a term of the settlement agreement is ambiguous. Where language of a settlement agreement is ambiguous, the Court “is required to consider extrinsic evidence of the parties’ intent.”) (Stiller v. Sears Roebuck & Co. (2010)189 Cal.App.4th 175,183.) Mr. Medina-Milan argues that by failing to perform a condition precedent, plaintiff cannot require him to perform his obligations pursuant to the settlement agreement. (Civil Code, § 1439; Code Of Civil Procedure, § 457.) Mr. Medina-Milan asks this Court to note that under Code of Civil Procedure, § 664.6, this Court has power to apply “any appropriate equitable remedy. . ..” (Lofton v. Wells Fargo Home Mortgage (2014) 230 Cal.App.4th 1050, 1062-63, citing In re Marriage of Adkins (1982) 137 Cal.App.3d 68, 77.) He asks that this court continue the matter six months so that he may have an opportunity to become gainfully employed and continue making payments pursuant to the settlement agreement. Plaintiff has not filed papers in reply to Mr. Medina-Milan’s opposition. IV. Tentative Ruling. The tentative ruling in this matter was duly posted. V. Conclusion and Order. This Court is inclined to GRANT the relief requested by Mr. Mendoza-Milan. To avoid more work for the Court, it is preferable that this Court deem the matter OFF CALENDAR WITHOUT PREJUDICE. Counsel can agree between themselves to a six month period of time within which to allow the Gentleman to obtain gainful employment. Should a default occur, the matter can always be re-calendared. DATED: HON. SOCRATES PETER MANOUKIAN fudge of the Superior Court County 0f Santa Clam - 00000 - Calendar Line 15 - 00000 - Calendar Line 16 - 00000 - Calendar Line 17 - 00000 - Calendar Line 18 - 00000 - Calendar Line 19 - oo0oo - Calendar Line 20 - oo0oo - Calendar Line 21 - oo0oo - Calendar Line 22 - oo0oo - Calendar Line 23 - oo0oo - Calendar Line 24 - oo0oo - Calendar Line 25 - oo0oo - Calendar Line 26 - oo0oo - Calendar Line 27 - oo0oo - Calendar Line 28 - oo0oo - Calendar Line 29 - oo0oo - Calendar Line 30 - oo0oo - 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I am a citizen ofthe United States, and a resident ofthe County of Santa Clara. I am over the age 0f 18 years and not a party t0 the Within entitled action. My business address is The Fuller Law Firm, P.C. 60 North Keeble Avenue, San Jose, CA 95126. On January 21, 202 1 , I served the within o Notice 0f Ruling Granting Milestone Financial, LLC’s Motions t0 Compel 0n the interested parties in this action by (i) electronic serving Where available and (ii) placing a true copy thereof enclosed in a sealed envelope addressed as follows: CDLG, PC 2973 Harbor Boulevard, Suite 594 Costa Mesa, CA 92626-3912 Fax: 888-660-8874 Litigation.cdlg@gmail.com cdlglawyer@gmail.com aruiz.cdlg@gmail.com peternisson@gmail.com Rabindra and Ruma Chakraborty 1298 Pumpkin Terrace Sunnyvale, CA 94087 I am readily familiar With the firm's practice of collecting and processing correspondence for mailing. Under the practice, it would be deposited With the US Postal Service 0n that same day With postage thereon fi111y prepaid at San Jose, CA in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. I declare under penalty ofperjury under the laws ofthe State 0f California that the foregoing is true and correct. Executed at San Jose, California on January 21, 2021. Joyce K. Lau 3 NOTICE OF RULING GRANTING MILESTONE FINANCIAL, LLC’S MOTIONS TO COMPEL