HON. JAMOA ATHENA MOBERLY

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1 HON. JAMOA ATHENA MOBERLY Superior Court of Orange County Born: 1952, Tucson, Arizona Undergraduate: UC San Diego, 1972 Law School: Hastings, 1976 Admitted to Practice: 1976 Appointed to the Bench: 1996 Appointed by: Pete Wilson, Republican Career as an Attorney Legal Intern, Sacramento District Attorney s Office, 1974 Associate, Fleming Anderson McClung & Finch, Pasadena, California, Associate, Greenberg Bernhard Weiss & Karma, Los Angeles, California, Associate/Partner, Schell & Delamer, Los Angeles & Santa Ana, California, Other Employment International Field Representative, Phi Alpha Delta, Granada Hills, California, Relevant Organizational Affiliations Member: Phi Alpha Delta Law Fraternity International, Orange County Women Lawyers, (life member) William P. Gray/Lex Legion Inn of Court, (Board Member, 2009) National Association of Women Judges, Mock Trial Judge, CRF, California Women Lawyers, CJA: Civil Law and Procedure Committee & ADR Subcommittee, National Charity League, Irvine Chapter, Former Member: University of California, San Diego, Representative to University of California Student Lobby at California State Legislature, January- June, 1973 Southern California Defense Counsel, Board of Governors, Wilshire Bar Association, Los Angeles, California, Los Angeles County Bar Association, Delegate, State Bar Conference, Arbitrator, Orange County Superior Court,

2 Orange County Bar Association, Delegate, State Bar Conference, Judge, pro tempore, Orange County Superior Court, California, Lincoln Club, Orange County, Judge, pro tempore, Orange County Municipal Court, California, Youth Employment Services, Costa Mesa, California, (Board Member) Hastings College of Law Alumni Chapter (Board of Governors, 1983 & President, Hastings Alumni Association, Board of Governors, 1988 & President, & Executive Board, Teaching/Lecture/Panelist Speaker: ABA, (Nonprofit Corporation Section), Francis T. v. Village Green, 1987 Panelist: Orange County Trial Lawyers, NBI, Celtic Bar & OCBA Other Information Political/Religious Affiliation: Republican/Roman Catholic (Lectern Ministry, St. Elizabeth Ann Seton Catholic Church, Other Education: University of Florida/University of California, Davis Law Schools, Summer Program, Mexico City at Escuela Libra de Derecho, 1975 Sarah Lawrence College, Summer Program, Florence, Italy University of Arizona, Tucson, Arizona, (Summer 1971) Admissions: U.S. District Court, 1978

3 JUDGE JAMOA A. MOBERLY LAW & MOTION DEPARTMENT C-12 FRIDAY Dates: February 22, 2013 at 2:00 PM Tentative Rulings will be posted on the Internet by 5:00 pm on the day before the scheduled hearing, whenever possible. The rulings will also be posted outside the courtroom on the bulletin board by noon on the day of the scheduled hearing. The court will hear oral argument on all matters at the time noticed for the hearing. If you prefer to submit the matter on your papers without oral argument, advise all counsel first and then telephone the clerk at (657) If the moving party has submitted the matter and there are no appearances by any party at the hearing, the tentative ruling will be the final ruling. Unless otherwise indicated, the moving party shall provide written notice of all rulings or prepare an Order for the court s signature per CRC If no one has telephoned the clerk to submit and there are no appearances by any party, the tentative will become the final order of the court. Once the tentative ruling has been posted on the Internet, no supplemental papers may be filed and no continuances will be permitted. # Case Name Tentative Noory vs. Sorensen Consolidated: ; IRA Resources, Inc. vs. Noory Sistani vs. DeSantis 1) Defendants IRA Resources, Inc.,FBO Barbara Barsky IRA and Pacific Coast Title s Demurrer to the Plaintiff Frishta Noory and Management Resources Group, Inc. s Complaint 1) Defendants Stephen A. DeSantis and Saddleback Valley Surgical Medical Group s Motion to Compel Plaintiff Solmaz Sistani to Arbitrate the Controversy and for an Order Dismissing or Staying the Superior Court Action between the Arbitrating Parties Grant. The motion to compel arbitration is GRANTED. The action is stayed pending completion of arbitration. A review hearing is set for June 24, 2013 at 10:00 am. The jury trial set for said date is hereby vacated. Defendants are to give notice. Plaintiff does not dispute that an arbitration agreement exists. The factors of Sobremonte v. Superior Court (1998) 61 Cal.App.4th 980, 992, weigh in favor of arbitration. Defendants have taken no action inconsistent with an intention to arbitrate. In answering, conducting discovery, and posting jury fees, they have consistently informed Plaintiff of their intention to arbitrate. See Defendants answer and McColgan declaration in Reply, Ex. B1-B6 & C. They also announced their intent at the 10/1/12 CMC. Although there has been some delay in moving to compel arbitration, there has been no advantage taken of the judicial discovery rules because the arbitration agreement, article 4, provides for the same discovery. Thus, there has been no prejudice to the Plaintiff from the delay. In addition, the Court notes that there is no declaration from Plaintiff s attorney attesting to any prejudice ) Plaintiff Pauline Suarez s Motion to Compel Defendant Bank

4 Suarez vs. Bank of New York Mellon MD Juice Bar vs. Miranda Allen vs. Superstars, Inc Quickle vs. One West Bank Of New York Mellon to Respond to Requests for Production of Documents, Set One and Request for Sanctions against Defendant and their counsel of Record in the amount of $1, Grant. The Motion to Compel Further Responses is GRANTED. Plaintiff corrected the error concerning the failure to file a Separate Statement. Defendant had an opportunity to respond. The disputed Requests are either relevant or could lead to admissible evidence. (C.C.P ). Because of the liberal policies underlying discovery, doubts as to relevance should generally be resolved in favor of permitting discovery. Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790. The fact that this information may be inadmissible at trial does not bar its discovery. Within fifteen (15) days, Defendant shall produce responses without objection to Requests for Production Nos. Set One, Nos. 7, 8, 11, 12, 19, 21, 22, and 26. Plaintiff is awarded sanctions of $ ($ x 4 hours) + $90.00 filing and court reporter fee as against defendant and defendant s attorney of record, joint and several, payable within 30 days. Plaintiff to give notice. 1) Defendant Samara Miranda s Motion to Compel Plaintiff MD Juice Bar to Respond to Requests for Discovery Deny without prejudice. Defendant s motion to compel discovery is DENIED without prejudice to file a motion that specifies in the notice just what discovery is sought. Defendant cannot avoid paying filing fees for three motions by failing to disclose that the motion is actually three motions in one. In addition, there is no proof of service. If Defendant s counsel appears at the hearing and testifies under oath that three filing fees were paid for this motion and that it was timely served, the Court will take the motion under submission to allow Defendant to file a proof of service. 1) Defendant Philip Romero s Motion for Award of Attorney Fees in the amount of $19, and Award of Costs in the amount of $1, ) Defendant Award, Inc. s Motion for Award of Attorney Fees in the amount of $14, and Award of Costs in the amount of $ ) Plaintiffs Gail Lynn Quickle and James Howard Quickle s Order to Show Cause re: Preliminary Injunction against One West Bank Deny. The general purpose of a preliminary injunction is to preserve the status quo until the merits of the action are determined, and in doing so, the court considers who will bear the greater injury should the preliminary injunction be granted and whether a reasonable probability exists the Plaintiff will prevail. State Bd. Of Barber Examiners v. Star (1970) 8 Cal.App.3d 736. A trial court s determination must be guided by a mix of the

5 Hinman vs. Chang Orange County Transportation Authority vs. Yorba potential-merit and interim-harm factors; the greater the plaintiff s showing on one, the less must be shown on the other to support an injunction. Butt v. State of California (1992) 4 Cal.4 th 668, 678. Of course, the scope of available preliminary relief is necessarily limited by the scope of the relief likely to be obtained at trial on the merits. Id. A trial court may not grant a preliminary injunction, regardless of the balance of interim harm, unless there is some possibility that the Plaintiff would ultimately prevail on the merits of the claim. Id. In this instance, Plaintiffs assert they are likely to prevail on their claim under Civil Code Plaintiffs present the Declaration of Mr. Quickle, who asserts, generally, that Defendant did not contact him or explore options to avoid foreclosure, prior to recording the Notice of Default. ( 5 of Mr. Quickle Dec.). In contrast, Defendant submits the Declaration of Mr. Charles Boyle, the Vice President of Default Risk Management for One West Bank, who declares that One West engaged in numerous contacts and discussions with Plaintiffs, in compliance with this section. ( 8-15 of Boyle Dec.). Additionally, Mr. Boyle attaches several letters sent to Plaintiffs, discussing options to avoid foreclosure. (Exhibits 5-13). Further, Mr. Boyle indicates that, prior to recording the Notice of Default, Plaintiffs were offered the following: A Repayment Plan on November 9, ( 12 of Boyle Dec.; Exhibit 15 ); A Forbearance Plan on April 15, ( 14 of Boyle Dec.; Exhibit 16 ); and A Trial Period Plan on June 29, ( 15 of Boyle Dec.; Exhibit 17). Finally, Mr. Boyle declares that Plaintiffs were reviewed for a HAMP modification in June of 2010, but did not qualify. ( 11 of Boyle Dec.). The subject Notice of Default was recorded on July 17, ( 18 of Boyle Dec.; Exhibit 4 ). Based on all of the above, the evidence demonstrates that Defendant complied with Civil Code , as Defendant engaged in numerous attempts to discuss Plaintiffs options, prior to recording the Notice of Default. Thus, this Court cannot find that Plaintiffs have a probability of prevailing on their claim and the instant Application must be denied. Defendant to give notice. 1) Plaintiff Marilyn Hinman s Motion for Judgment Not Withstanding the Verdict and Set Aside the Judgment entered on December 31, ) Plaintiff Marilyn Hinman s Motion for New Trial 1) Defendant and Cross-Complainant Yorba Linda Water District s Motion for Automatic Stay of Proceedings Pending Appeal or alternatively, Discretionary Stay Off Calendar per telephonic request of moving party.

6 Linda Water District Igo vs. Little 10 07CC11998 Willis vs. Cissna 1) Plaintiffs The Clelah Mae Little 2012 Separate Property Trust, Estate of Clelah Mae Litte and Jodi S. Igo s Motion to Compel Defendant Sidney Bernard Little s to Provide Responses to Special Interrogatories, 1,2,3,5,6,7,9,10,11,13,14,15,17,18,19,21,22,23 and 24 and Request for Monetary Sanctions in the amount of $4, ) Assignor of Record Acclaim Credit Technologies for Plaintiff Raymond E. Willis Motion for Order Compelling Defendant Robert Lee Cissna to Serve on it a Response to First Set of Requests for Admission and Request for Monetary Sanctions

7 JUDGE JAMOA A. MOBERLY LAW & MOTION DEPARTMENT C-12 FRIDAY Dates: March 1, 2013 at 2:00 PM Tentative Rulings will be posted on the Internet by 5:00 pm on the day before the scheduled hearing, whenever possible. The rulings will also be posted outside the courtroom on the bulletin board by noon on the day of the scheduled hearing. The court will hear oral argument on all matters at the time noticed for the hearing. If you prefer to submit the matter on your papers without oral argument, advise all counsel first and then telephone the clerk at (657) If the moving party has submitted the matter and there are no appearances by any party at the hearing, the tentative ruling will be the final ruling. Unless otherwise indicated, the moving party shall provide written notice of all rulings or prepare an Order for the court s signature per CRC If no one has telephoned the clerk to submit and there are no appearances by any party, the tentative will become the final order of the court. Once the tentative ruling has been posted on the Internet, no supplemental papers may be filed and no continuances will be permitted. # Case Name Tentative Bryon vs. Wells Fargo Bank Flores vs. The Irvine Land Company, LLC Igo vs. Sidney 1) Defendant Wells Fargo Bank s Demurrer to Plaintiffs Gary T. Byron and Jami L. Byron s First Amended Complaint Sustain. Defendant s request for judicial notice is GRANTED. The demurrer to the entire complaint is SUSTAINED without leave to amend for the following reasons. All claims based on events surrounding the loan origination are barred because they belong to the estate of the Plaintiffs first bankruptcy in 2011; only the bankruptcy trustee has the ability to pursue them. Per In re Magana-Lopez (Bankr. CD Cal. Apr.18, 2012) 2012 WL , *3-*4. In addition, the statutes of limitation bar all such claims. Plaintiffs knew no later than 2007 that their loan was adjustable. Complaint, 14. If there were any claims based on the terms of the loan, they had a duty to investigate them at that time. Fuller v. Tucker (2000) 84 Cal.App.4th 1163, They have no claims based on failure to modify the loan in 2011 because there is no such duty under California law. Mabry v. Superior Court (2010) 185 Cal.App.4th 208, Plaintiffs have given up their claim of any such right under federal law. There is no opposition to the demurrer to the 4th and 5th causes of action for bad faith. Hertzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20. Defendant is to give notice. 1) Defendant The Irvine Land Company, LLC. s Demurrer to Plaintiffs Complaint 2) Defendant The Irvine Land Company, LLC. s Motion to Strike Portions of Plaintiff s Complaint Off Calendar; First Amended Complaint filed on 2/20/2013 1) Defendant Sidney Bernard Little s Demurrer to Plaintiffs First Amended Complaint

8 Bernard Little Iwamoto Family Trust vs. The Heathers Senior Care, Inc. Demurrer ONLY continued to 3/8/2013, per the request of the court 2) Defendant Sidney Bernard Little s Motion to Consolidate this Action with Case No ) Plaintiffs Iwamoto Family Trust by and through Trustee Wayne Iwamoto, Gilbert S. Iwamoto Survivor s Trust by and through Trustee Wayne Iwamoto, Wayne Iwamoto, David Iwamoto and Carol Brack s Motion to Quash Subpoenas for the Personal Records of Decedent Gilbert Iwamoto Off Calendar per telephonic request of moving party. 5 07CC08589 Cervantes vs. Shop 4 Tech Ambrosio vs. Italgres Italian Ceramic Tile, Inc. 1) Plaintiff Jose Cervantes Motion to Enforce Settlement Agreement --- Counsel for Plaintiff is to attend the hearing and explain to the Court why he has not complied with the following portion of the Court s 2/1/13 order: At the last hearing the Court noted the revised settlement agreement required WCAB approval and there had been no showing that such approval had been obtained. Rather than deny this motion without prejudice, the Court is continuing this motion for plaintiff to address this issue. A proposed judgment should also be submitted with the supplemental motion papers all to be filed by [Emphasis added.] Should counsel fail to appear, the motion will be denied without prejudice. 2) OSC re: Dismissal 1) Defendant Seaward RE, LP s Motion to Compel Plaintiff Faustino Ambrosio to Respond to Form Interrogatories, 1 & 3 and Request for Monetary Sanctions against Plaintiff and his Counsel of Record in the amount of $1,750.00, plus costs of Motion Grant. Regarding Form Interrogatory No. 17.1, the Motion is GRANTED as to Request for Admissions Nos. 3, 4, 12 & 13. Responses without objection shall be served within 20 days. For Nos. 3 & 4, Plaintiff was vague. He did not state the dates or percipient witnesses. For Nos. 12 & 13, Plaintiff is required to respond to contention interrogatories. Burke v. Sup.Ct. (1969) 71 C2d 276, ; Weil & Brown, Civil Procedure Before Trial (Rutter Group) 8:78. Regarding Form Interrogatory No. 17.1, the Motion is DENIED as to Request for Admissions Nos. 1, 7 & 8. For No. 1, Plaintiff shall provide a letter from a treating doctor. For Nos. 7 & 8, the responses were adequate. 2) Defendant Seaward RE, LP s Motion to Compel Plaintiff Faustino Ambrosio Further Responses to Special Interrogatories, 1 & 3 and Request for Monetary Sanctions

9 Prospect Medical Holdings, Inc. vs. Torgerson California Bank & Trust vs. Fralin against Plaintiff and his Counsel of Record in the amount of $2,100.00, plus costs of Motion Grant. Regarding Special Interrogatories Nos. 1 & 3, the Motion is GRANTED. Responses without objection shall be served within 20 days. For No. 1, Plaintiff claims to lack personal knowledge and that he did not maintain records. Plaintiff should at least consult his attorneys, who would have the information. For No. 3, Plaintiff is required to provide a straightforward response. Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits. (C.C.P (a)). 3) Defendant Seaward RE, LP s Motion to Compel Plaintiff Faustino Ambrosio to Respond to Requests for Production, 6,11,25,27,28 and 29 and Request for Monetary Sanctions against Plaintiff and his Counsel of Record in the amount $1, Grant. Regarding Requests for Production, Nos. 6, 1, 25, 27, 28 & 29, the Motion is GRANTED. As designated in the Request, the place of production shall be the Newport Beach office of Defendants attorney. Plaintiff may submit a privileged log as appropriate. Within twenty (20) days, Plaintiff shall respond and produce without objection. Within twenty (20) days, Plaintiff and his attorney shall pay sanctions in the sum of 1, [($ per hour x 4 hours) + $ for filing and court reporter fees ($90.00 x 3 motions).] M/p to give notice. 1 & 2) Plaintiffs Prospect Medical Holdings, Inc. and Prospect Medical Systems, Inc. s Motion to Compel Defendant Jasmine Torgerson to Further Respond to Form Interrogatories, Set One and Requests for Admission, Set One and Requests for Monetary Sanctions against Defendant and her Attorney of Record in the amount of $2, ) Plaintiffs Prospect Medical Holdings, Inc. and Prospect Medical Systems, Inc. s Motion to Compel Defendant Jasmine Torgerson to Further Respond to Special Interrogatories, Set One and Request for Monetary Sanctions against Defendant and her Attorney of Record in the amount of $1, ) Plaintiffs Prospect Medical Holdings, Inc. and Prospect Medical Systems, Inc. s Motion to Compel Defendant Jasmine Torgerson to Further Respond to Requests for Production, Set One and Request for Monetary Sanctions against Defendant and her Attorney of Record in the amount of $1, Off Calendar per 2/25/13 telephonic request of moving party. 1) Plaintiff California Bank & Trust s Motion to Compel Defendants Curtis Fralin and K. Joseph Shabani Deposition and to Respond to Requests for Production of Documents and Request for Monetary Sanctions against Defendants in the amount of $3, Continued to 4/5/2013 per telephonic request of

10 Villmer vs. Schonherz Moftakhar vs. Orange County Housing Authority Family Investment Company, Inc. vs. Mach-1 Autogroup Teamsters District Counsel No.2 vs. Grabhorn moving party. 1) Defendants and Cross-Complainants Silver Oak Real Estate of Orange County and Karen Schonherz s Motion for New Trial Deny. The Motion for New Trial is DENIED. Pursuant to C.C.P , all parties signed the settlement agreement. The court had authority to enforce the agreement, because the parties entered into a valid and binding settlement. Hines v. Lukes (2008) 167 Cal.App.4th 1174, Great American was not a party to the settlement agreement. Pursuant to Paragraphs 4 and 15 of the Settlement Agreement, the court was justified in awarding $2, in attorney fees and $69.95 in costs for the enforcement motion. R/p to give notice. 1) Petitioner Cyrus Moftakhar s Motion for Reconsideration of Novemeber 30, 2012 Order Granting in part and Denying in part Petitioner Cyrus Moftakhar s Writ 1) Judgment Creditors Mach-1 Autogroup, Mach-1 RSMH, LLC and Craig Baptiste s Motion for Charging Order and Related Relief Grant. Judgment Creditors Motion for a Charging Order is granted. 2) Judgment Creditors Mach-1 Autogroup, Mach-1 RSMH, LLC and Craig Baptiste s Order to Show Cause re: Preliminary Injunction Grant. The Court issues a preliminary injunction enjoining judgment debtor Marc Spizzirri and his agents, assigns, employees, partners and all those action in concert with him, from assigning, encumbering, transferring, or in any way disposing of his interest in monies from the sale of commercial property located at 1211 North Batavia, Orange, which has been sold by Auto Orange II, LLC ( AOII ), until such time as the judgment has been paid in full. This injunction only includes funds paid to Mr. Spizzirri as a member of AOII and as a member of El Camino Real LLC from the sale of the property, and any funds paid to Mr. Spizzirri s attorney Frank Battaile from the sale of the property. M/p to give notice. 1) Cross-Defendant Teamsters District Council No.2 s Motion for Summary Judgment, or alternatively, Summary Adjudication on Cross-Complaint of Fred Correll and Ryan Sherard Off calendar. Case stayed on 02/25/13.

11 JUDGE JAMOA A. MOBERLY LAW & MOTION DEPARTMENT C-12 FRIDAY May 10, 2013 at 2:00 PM Tentative Rulings will be posted on the Internet by 5:00 pm on the day before the scheduled hearing, whenever possible. The rulings will also be posted outside the courtroom on the bulletin board by noon on the day of the scheduled hearing. The court will hear oral argument on all matters at the time noticed for the hearing. If you prefer to submit the matter on your papers without oral argument, advise all counsel first and then telephone the clerk at (657) If the moving party has submitted the matter and there are no appearances by any party at the hearing, the tentative ruling will be the final ruling. Unless otherwise indicated, the moving party shall provide written notice of all rulings or prepare an Order for the court s signature per CRC If no one has telephoned the clerk to submit and there are no appearances by any party, the tentative will become the final order of the court. Department C12 has an assigned court reporter for all Law & Motion matters. Once the tentative ruling has been posted on the Internet, no supplemental papers may be filed and no continuances will be permitted. # Case Name Tentative Pacific Mercantile Bank vs. NP Gas, Inc. 1) Defendants Naresh Patel, Jayshree Patel, NP Gas, Inc. and US Gasup, Inc. s Attorney of Record, Red Hill Law Group, PC and Steven D Braunstein s Motion to be Relieved as Counsel of Record Grant. Defendants Naresh Patel, Jayshree Patel, NP Gas, Inc. and US Gasup, Inc. s Attorney of Record, Red Hill Law Group, PC and Steven D Braunstein s Motion to be Relieved as Counsel of Record is granted subject to submission and service of the proper order. Defense counsel will need to submit a proposed order on the required Judicial Council Form and the withdrawal shall not be effective until filing of a proof of service of this order of withdrawal on all defendants. M/p to give notice Galerie H.O.A vs. National Union Fire Ins. Co. of Pittsburgh Dessoliers vs. C & C, LLC 1) Defendants Bickley Nguyen and Labarre/Oksnee Insurance Agency, Inc. s Demurrer to Plaintiff Galerie Homeowners Association s Second Amended Complaint 1) Defendant C & C, LLC s Demurrer to Plaintiff Denis Dessoliers Second Amended Complaint

12 Vista Flare H.O.A. vs. Lester 1) Cross-Defendant Vista Filare Homeowners Association s Demurrer to Cross-Complainant Linda J. Lester s First Amended Cross-Complaint Flores vs. The Irvine Land Company, LLC 1) Defendant The Irvine Land Company, LLC s Demurrer to Plaintiffs Ilene Flores, Johnny Flores, Jessica Flores a minor, Maurilia Rivera, Jose Rivera, Jesus Barron and Estate of Juan Flores and Estate of Thomas Rivera s First Amended Complaint 2) Defendant The Irvine Land Company, LLC s Motion to Strike Portions of Plaintiffs Ilene Flores, Johnny Flores, Jessica Flores a minor, Maurilia Rivera, Jose Rivera, Jesus Barron and Estate of Juan Flores and Estate of Thomas Rivera s First Amended Complaint Raygoza vs. Arroyo Real Partners, LLC 1) Defendants Arroyo Real Partners, LLC, Arroyo Real Partners, LP, Jose Rosales and Jose Gallegos Demurrer to Plaintiff Eric Raygoza s First Amended Complaint 2) Defendants Arroyo Real Partners, LLC, Arroyo Real Partners, LP, Jose Rosales and Jose Gallegos Motion to Strike Portions of Plaintiff Eric Raygoza s First Amended Complaint Nguyen vs. Nguyen 1) Plaintiff Chris Nguyen s Motion to Compel Defendant Kim Nguyen to Respond to Request for Admission, Set One and Request for Sanctions against Defendant and her Attorney of Record in the amount of $1, Marquardt vs. Thune 1-3) Defendant Wallace Thune, D.D.S. s Motion to Compel Plaintiff Michelle Marquardt for Responses to Interrogatories, Requests for Production of Documents and Request to Deem Admissions as Admitted and Request for Sanctions against Plaintiff and her Counsel of Record in the amount of $1, Moot in part and grant in part. Defendant Dr. Thune s consolidated motion to compel responses to defendant s initial special interrogatories,

13 RFPD, and to deem requests for admission admitted, by plaintiff Marquardt is MOOT because plaintiff Marquardt has now served verified responses to defendant s initial discovery. Sanctions are granted as defendant granted an extension to respond to this discovery and no evidence of a request for a further extension when plaintiff s counsel was requested to participate as second chair in a trial is shown. Defendant Dr. Thune is thus awarded sanctions for $ payable by plaintiff Marquardt and her counsel of record in 30 days. See, C.C.P (c), (c) and (c). Moving party to give notice Young vs. Bhakta 1 & 2) Plaintiffs and Cross-Defendants David Young and Elizabeth Young s Motion to Compel Defendants and Cross-Complainants to Respond to Form and Special Interrogatories, Set One and Request for Sanctions in the amount of $1, CC11160 Affan vs. Portofino Cove Homeowners Association Kim vs. N.R.L.L. East, LLC 1) Defendants Portofino Cove Homeowners Association and Portofino Cove Condominium Association s Motion for New Trial 1) Defendant Auction.com, Inc. s Motion for Attorney s Fees incurred to Release Property from a Writ of Execution obtained through Erroneous Affidavit of Identity Citizens Business Bank vs. Seldin 1) Defendants George R. Seldin and Dianne C. Seldin s Demurrer to Plaintiff Citizen Business Bank s Complaint Overrule. The demurrer by the Seldin defendants to plaintiff CBB s complaint is OVERRULED. Without evidence of the governing trust document the court cannot determine whether the Seldin defendants are primary beneficiaries or secondary beneficiaries of the trust. This makes a difference as to enforceability of the guaranty for the reasons discussed in Talbott v. Hustwit (4th Dist. 2008) 164 Cal.App.4 th 148, 159. Also, whether Probate Code is applicable to the Seldin defendants trust can affect the applicability of the rules set forth in Torrey Pines Bank. A demurrer challenges the defects appearing on the face of the pleading or from other matters properly subject to judicial notice. See, Blank v. Kirwan (1985) 39 Cal.3d 311, 318. Whether the Seldin plaintiffs can establish that the rules set forth in Torrey Pines Bank v. Hoffman (1991) 231 Cal.App.3d 308 are applicable in their case by way of a dispositive motion is not pending before this court at this time. Next, the guaranties attached and incorporated into plaintiff CBB s complaint evidence that the Seldin defendants waived their rights under C.C.P. 580d and 726. In addition, the Talbott court explained that C.C.P. 580d is not applicable to guarantors. The Seldin defendants are ordered to answer plaintiff CBB s complaint within 10 days.

14 Moving parties to give notice.

15 JUDGE JAMOA A. MOBERLY LAW & MOTION DEPARTMENT C-12 FRIDAY May 17, 2013 at 2:00 PM Tentative Rulings will be posted on the Internet by 5:00 pm on the day before the scheduled hearing, whenever possible. The rulings will also be posted outside the courtroom on the bulletin board by noon on the day of the scheduled hearing. The court will hear oral argument on all matters at the time noticed for the hearing. If you prefer to submit the matter on your papers without oral argument, advise all counsel first and then telephone the clerk at (657) If the moving party has submitted the matter and there are no appearances by any party at the hearing, the tentative ruling will be the final ruling. Unless otherwise indicated, the moving party shall provide written notice of all rulings or prepare an Order for the court s signature per CRC If no one has telephoned the clerk to submit and there are no appearances by any party, the tentative will become the final order of the court. Department C12 has an assigned court reporter for all Law & Motion matters. Once the tentative ruling has been posted on the Internet, no supplemental papers may be filed and no continuances will be permitted. # Case Name Tentative McFerson vs. Zenni 1) Defendant Rami M. Zenni s Motion to Strike Portions of Plaintiff Alison A. McFerson s Complaint Grant. The motion to strike is GRANTED with 20 days leave to amend. Plaintiff must allege more than that Defendant voluntarily ingested an intoxicating substance and drove afterwards. He must allege also that at the time he ingested the substance, he knew that it would impair his ability to drive, he knew he would be driving, and he knew of the hazards of driving while intoxicated with the substance. Taylor v. Superior Court (1979) 24 Cal.3d 890, 896. In addition, Plaintiff must allege that Defendant ran a red light. Per Dawes v. Superior Court (1980) 111 Cal.App.3d 82, (cited with approval in Peterson v. Superior Court (1982) 31 Cal.3d 147), Plaintiff must allege that Defendant s driving made injury probable, not merely possible. This requirement is satisfied if Plaintiff alleges that Defendant ran a red light while Plaintiff was in the intersection. The Court will not consider whether these authorities apply to prescription drug intoxication because this issue was raised for the first time in the Reply. Nor will the Court consider Defendant s version of the facts in ruling on the sufficiency of a pleading. His remedy, if any, is likely to be a motion for summary adjudication. Defendant is to give notice California Bank & Trust vs. Fralin 1) Cross-Defendant Sherry Sharona Zarneigan s Demurrer to Cross- Complainant K. Joseph Shabani s Cross-Complaint Overrule. The demurrer by Cross defendant Shery Sharona Zarnegin to the 1 st c/a for declaratory relief in the Cross-Complaint on grounds of

16 failure to state, uncertainty, and another action pending, is overruled. Cross-defendant failed to establish that another action is pending via the divorce action. Cross-defendant failed to establish that Cross-Complainant s interpretation of the Guaranty is unreasonable and improper, or that the cause of action fails, as a matter of law. Crossdefendant failed to articulate how the cause of action is uncertain. 2) Cross-Defendant Sherry Sharona Zarneigan s Motion to Strike Portions of Cross-Complainant K. Joseph Shabani s Cross-Complaint Deny. The motion by xδ Shery Sharona Zarnegin to strike portions of Cross-Complaint as the following: (1) Page 3, 6:11-16; (2) page 4, 8(c):3-6, is denied. Cross-defendant failed to show that the challenged language in the Cross-Complaint is false or improper. Cross-Defendants' Answer shall be served and filed within 10 days. The objection to the declaration of Shery Sharona Zarnegin is sustained. Counsel for cross-complainant to give notice Gearless Designs & Manufacturing, Inc. vs. Action Broaching, Inc. 1 & 2) Defendant Action Broaching, Inc. s Motion to Compel Plaintiff Gearless Designs and Manufacturing, Inc. to Further Respond to Requests for Production of Documents and Form Interrogatories and Request for Monetary Sanctions against Plaintiff in amount to be Determined by the Court Jensen vs. Nghiem 1) Defendant Darlene Ngheim s Motion to Have the Genuineness of Documents and the Requests for Admissions Propounded by Plaintiff Tyler Nguyen be Deemed Admitted and Request for Sanctions in the amount of $1, GRANT. Defendant Nghiem s motion to deem his requests for admission to plaintiff Nguyen admitted is granted. See, C.C.P (b). Defendant Nghiem s request for sanctions is granted in the amount of $1, payable by plaintiff Nguyen and his counsel of record in 30 days. See, C.C.P (c). Moving party to give notice. 2) Defendant Darlene Ngheim s Motion to Have the Genuineness of Documents and the Requests for Admissions Propounded by Plaintiff Xuyen Jensen be Deemed Admitted and Request for Sanctions in the amount of $ GRANT. Defendant Nghiem s motion to deem his requests for admission to plaintiff Jensen admitted is granted. See, C.C.P (b). Defendant Nghiem s request for sanctions is granted in the amount of $1, payable by plaintiff Jensen and his counsel of record in 30 days. See, C.C.P (c). Moving party to give notice.

17 3) Defendant Vince Lu s Motion to Request for Admissions, Set One Propounded on Plaintiff Tyler Nguyen be Deemed Admitted and Request for Sanctions in the amount of $ GRANT. Defendant Vu s motion to deem his requests for admission to plaintiff Tyler Nguyen is granted and the RFAS s are deemed admitted. See, C.C.P (b). Defendant Vu s request for sanctions is granted. Sanctions are awarded in the amount of $ payable by plaintiff Tyler Nguyen and his counsel of record in 30 days. See, C.C.P (c). Moving party to give notice. 4) Defendant Vince Lu s Motion to Request for Admissions, Set One Propounded on Plaintiff Xuyen Jensen be Deemed Admitted and Request for Sanctions in the amount of $ GRANT. Defendant Vu s motion to deem his requests for admission to plaintiff Jensen is granted and the RFAS s are deemed admitted. See, C.C.P (b). Defendant Vu s request for sanctions is granted. Sanctions are awarded in the amount of $ payable by plaintiff Xuyen Jensen and his counsel of record in 30 days. See, C.C.P (c). Moving party to give notice Sanchez vs. Webb 1) Defendants Mexpan Trucking and Juventino Serrano s Motion for Terminating Sanctions of Dismissal of Plaintiffs Teresa Sanchez and Alejandro Sanchez Complaint for Failure to Comply with the Court s Order dated April 12, 2013 Grant. The motion for terminating sanctions by defendants Mexpan Trucking and Juventino Serrano is GRANTED. See, Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481. The complaint by plaintiffs Teresa Sanchez and Alejandro Sanchez as to defendants Mexpan Trucking and Juventino Serrano is dismissed with prejudice. Plaintiffs claims against the other defendants remain as well as the cross-complaints between the various defendants in this civil action. The trial date of June 10, 2013 remains on calendar. Moving parties to give notice Miller vs. Gonzalez 1) Plaintiff Hazel Miller s Attorney of Record, Gene J. Goldsman s Motion to be Relieved as Counsel of Record Koshak vs. Leventhal 1) Plaintiff Norman Koshak s Motion to Strike or Tax Costs entered by Defendant Neil H. Leventhal

18 Nguyen vs. Wells Fargo Bank, N.A. 1) Plaintiff Christian T. Nguyen s Order to Show Cause Regarding Preliminary Injunction 2) Defendant Wells Fargo Bank, N.A. s Demurrer to Plaintiff Christian T. Nguyen s Complaint 3) Defendant Wells Fargo Bank, N.A. s Motion to Strike Plaintiff Christian T. Nguyen s Complaint Moore vs. Lynch 1) Plaintiffs Thomas A. Moore and Consumer Affairs Law Center, Inc. s Motion for Order to Show Cause Regarding Preliminary Injunction

19 JUDGE JAMOA A. MOBERLY LAW & MOTION DEPARTMENT C-12 FRIDAY May 31, 2013 at 2:00 PM Tentative Rulings will be posted on the Internet by 5:00 pm on the day before the scheduled hearing, whenever possible. The rulings will also be posted outside the courtroom on the bulletin board by noon on the day of the scheduled hearing. The court will hear oral argument on all matters at the time noticed for the hearing. If you prefer to submit the matter on your papers without oral argument, advise all counsel first and then telephone the clerk at (657) If the moving party has submitted the matter and there are no appearances by any party at the hearing, the tentative ruling will be the final ruling. Unless otherwise indicated, the moving party shall provide written notice of all rulings or prepare an Order for the court s signature per CRC If no one has telephoned the clerk to submit and there are no appearances by any party, the tentative will become the final order of the court. Department C12 has an assigned court reporter for all Law & Motion matters. Once the tentative ruling has been posted on the Internet, no supplemental papers may be filed and no continuances will be permitted. # Case Name Tentative Jeff Tracy, Inc. vs. Olguin 1) Defendant and Cross-Complainant Cris B. Olguin s Attorney of Record, William M. Crosby s Motion to be Relieved as Counsel of Record 2) Defendant Jessica Olguin s Attorney of Record, William M. Crosby s Motion to be Relieved as Counsel of Record 3) Defendant and Cross-Complainant Craig Johnson s Attorney of Record, William M. Crosby s Motion to be Relieved as Counsel of Record Grant. The Motions to be Relieved as Counsel are GRANTED Weng s Enterprises vs. Global Networks Enterprises & Technologies, Inc. The Order shall include notification of the hearing on the Demurrer set for July 12, 2013 at 2pm as well as the CMC of 6/3/13. M/p to give notice. 1) Cross-Defendant Weng s Enterprises, Inc. s Demurrer to Cross- Complainant Global Networks Enterprises and Technologies and Eric Choi s Cross- Complaint 2) Cross-Defendant Weng s Enterprises, Inc. s Motion to Strike Portions of Cross-Complainant Global Networks Enterprises and Technologies and Eric Choi s Cross- Complaint

20 Deployment Partners, Inc. vs. Networkd Corporation 1) Defendant Verismic Software, Inc. s Demurrer to Plaintiff Deployment Partners, Inc. dba Managed Planet Software s Complaint 2) Defendant Verismic Software, Inc. s Motion to Strike Portions of Plaintiff Deployment Partners, Inc. dba Managed Planet Software s Complaint

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