thurs by wuyunyi

VIEWS: 21 PAGES: 36

									            SUPERIOR COURT, STATE OF CALIFORNIA
                  COUNTY OF SANTA CLARA
               Department 9, Honorable Mark H. Pierce Presiding
                             Mai Jansson, Courtroom Clerk
                             Tricia Gandsey, Court Reporter
                        191 North First Street, San Jose, CA 95113
                                Telephone: 408.882.2200
         To contest the ruling, call (408) 808-6856 before 4:00 P.M.

                  LAW AND MOTION TENTATIVE RULINGS
                     DATE: 11-3-11 TIME: 9 A.M.
             PREVAILING PARTY SHALL PREPARE THE ORDER
                      (SEE RULE OF COURT 3.1312)

LINE #      CASE #             CASE TITLE                                     RULING
LINE 1   110cv170341   L. Otis vs Westgate Premier        Click on Line 1 for ruling
                       Healthcare Services, Inc.
LINE 2   110cv188711   F. Rodriguez vs Encore Credit      Click on Line 2 for ruling.
LINE 3   111cv197001   M. Clark vs Esprit US Retail       Click on Line 3 for ruling
                       Limited
LINE 4   111cv201315   J. Melendez vs JP Morgan Chase     Demurrer by Defendant Chase is unopposed and
                       Bank                               is SUSTAINED with leave to amend.
LINE 5   111cv201576   M. Ali vs PNC Financial            Click on Line 5 for ruling
                       Services, Inc.
LINE 6   110cv170736   Z. Musbah vs Applied Materials,    Continued to 12-13-11 by ex parte request.
                       Inc.
LINE 7   110cv190177   Capital One Bank vs B. Leon        Click on Line 7 for ruling
LINE 8   109cv146732   R. Walsh vs Doe 1                  Off Calendar by moving party.
LINE 9   110cv166542   United American Bank vs            Claim of Exemption
                       Rebozzi Management Group, Inc.
LINE 10 110cv170350    M. Morreira vs Crosscultural     Continued on the Court‟s own motion to
                       Services Center                  12-6-11, 3pm in Dept 3. Case Status Review
                                                        Hearing on 12-1-11 is continued to 1-12-12
                                                        10am in Dept9.
LINE 11 111cv209433    Santa Clara County Office of the Agreement reached.
                       Sheriff vs D. Ritchie
LINE 12 111cv209575    T. Blenko vs DeHood, Inc.          Parties to appear
LINE 13 111cv210089    Commercial Equipment Lease         Parties to appear
                       Corp vs J. Medina
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Case Name: Otis v. Westgate Premier Healthcare Services, dba Amberwood Gardens
Case No.:  1-10-CV-170341

         As with the first amended complaint‟s allegations, the second amended complaint‟s
(“SAC”) first cause of action for heightened remedies pursuant to the Elder Abuse Act does not
allege facts with particularity supporting its assertion that Defendant is guilty of something
more than negligence. (See Cal. Welf. & Inst. Code § 15657; see also Benun v. Super. Ct.
(Country Villa East, L.P.) (2004) 123 Cal. App. 4th 113, 123-126 (stating that “the Legislative
history of the Elder Abuse Act indicates that… „professional negligence‟ is mutually exclusive
of the elder abuse and neglect specified in section 15657 as actionable under the act”; also
stating that “in order to obtain the remedies available in section 15657, a plaintiff must
demonstrate by clear and convincing evidence that defendant is guilty of something more than
negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct…
[indicated by conduct that] involves more than inadvertence, incompetence, unskillfulness, or a
failure to take precautions‟ but rather rises to the level of a „conscious choice of a course of
action … with knowledge of the serious danger to others involved in it”); see also Covenant
Care, Inc. v. Super. Ct. (Inclan) (2004) 32 Cal. 4th 771, 789-790 (stating that “to obtain the
Act‟s heightened remedies, a plaintiff must allege conduct essentially equivalent to conduct
that would support recovery of punitive damages… with particularity”).) Plaintiff apparently
relies on paragraph 25 of the SAC; however, the content of that paragraph was already alleged
in the FAC. (See SAC, ¶ 25; compare with FAC, ¶¶ 26.) Since it is apparent that Plaintiff
cannot amend her complaint to state facts with sufficient particularity to support her statutory
dependent abuse/neglect claim, the demurrer to the first cause of action is SUSTAINED
without leave to amend.

        In light of the above ruling, the motion to strike the allegations of the first cause of
action from the SAC is MOOT, and the motion to strike the prayer relating to the first cause of
action is GRANTED without leave to amend.

       Plaintiff does not oppose the motion to strike as to references regarding OTTIELIE
ACUNA. Accordingly, the motion to strike such references is GRANTED without leave to
amend.

        Plaintiff also agrees to delete the phrases “but in no event less than the jurisdictional
minimum of this court”, “fine including, but not limited to,” and “a day for each day a
violation was committed” from lines 19 and 24-25 of page 16. Accordingly, the motion to
strike those phrases is GRANTED without leave to amend.

        As previously stated, much of the content in paragraph 25 of the SAC was previously
alleged in the FAC, and as Defendant notes, the Court granted a motion to strike those
allegations without leave to amend as they were not relevant. Here, the first sentence of
Paragraph 25 of the SAC regarding the October 6, 2009 investigation is relevant; however, the
remaining sentences that relate to ratification are again directed only to Mildred Otis and not
the decedent. Accordingly, the motion to strike as to the first sentence of paragraph 25 of the
SAC is DENIED and the motion to strike as to the remaining sentences of paragraph 25 of the
SAC is GRANTED without leave to amend.
        Plaintiff agrees to amend paragraph 2 of the prayer regarding the second cause of
action. Accordingly, the motion to strike that portion of the prayer is GRANTED with 10 days
leave to amend.

       The motion to strike “costs of suit” from the prayer is DENIED.

       Accordingly, the following is hereby stricken from the second amended complaint:

                  The words “OTTIELIE ACUNA” from line 20 of page 1;
                 Paragraph 3 of the second amended complaint in its entirety;
                 The words “and OTTIELIE ACUNA” from lines 7-8 on page 2;
                 Sentences 2-6 from paragraph 25 of the second amended complaint,
                  beginning with the sentence that reads “Despite making this determination
                  and despite knowing the ineffectiveness of the mitten restraint…” and
                  ending with the last sentence of paragraph 25, lines 19-28 on page 8 and
                  lines 1-6 on page 9;
                 The phrase “but in no event less than the jurisdictional minimum of this
                  court” from line 19 of page 16;
                 The phrase “fine including, but not limited to” from line 24 of page 16;
                 The phrase “a day for each day a violation was committed” from lines 24-25
                  of page 16;
                 The words “and OTTIELIE ACUNA” from line 8 on page 19;
                 the prayer for damages as pertaining to the first cause of action from lines
                  10-16 on page 19; and,
                 paragraph 2 from the prayer for damages as pertaining to the second cause
                  of action from line 20 on page 19.



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Case Name: Rodriguez v. Encore Credit Corp., et al.
Case No.:  1-10-CV-188711

       As a preliminary matter, Plaintiff filed a single opposition entitled “Plaintiffs‟
opposition to the demurrer of Encore Credit” on November 1, 2011 at 4:05 p.m. This
opposition is extremely late. (See Code Civ. Proc. § 1005, subd. (b).) Nevertheless, the Court
has considered the opposition and makes the following rulings:

       Defendant Encore Credit Corporation‟s (“Encore”) request for judicial notice is
GRANTED. (See Alfaro v. Community Housing Improvement System & Planning Assn., Inc.
(2009) 171 Cal.App.4th 1356, 1382, quoting Poseidon Development, Inc. v. Woodland Lane
Estates, LLC (2007) 152 Cal. App. 4th 1106, 1117; see also Cal-American Income Property
Fund II v. County of Los Angeles (1989) 208 Cal.App.3d 109, 113 (stating that judicial notice
may be taken of a recorded instrument where there is no objection to its authenticity); see also
Ingram v. Flippo (1999) 74 Cal. App. 4th 1280, 1285, fn.3; see also Stormedia Inc. v. Super.
Ct. (Werczberger) (1999) 20 Cal.4th 449, 457, fn.9.)

        Defendant Carrington Mortgage Services, LLC‟s (“CMS”) request for judicial notice is
likewise GRANTED. (See Alfaro v. Community Housing Improvement System & Planning
Assn., Inc. (2009) 171 Cal.App.4th 1356, 1382, quoting Poseidon Development, Inc. v.
Woodland Lane Estates, LLC (2007) 152 Cal. App. 4th 1106, 1117; see also Cal-American
Income Property Fund II v. County of Los Angeles (1989) 208 Cal.App.3d 109, 113 (stating
that judicial notice may be taken of a recorded instrument where there is no objection to its
authenticity); see also Ingram v. Flippo (1999) 74 Cal. App. 4th 1280, 1285, fn.3; see also
Stormedia Inc. v. Super. Ct. (Werczberger) (1999) 20 Cal.4th 449, 457, fn.9.)

CMS‟ demurrer
      CMS‟ demurrer is not opposed and is therefore SUSTAINED without leave to amend.

Encore‟s demurrer
        As Encore notes, the first amended complaint (“FAC”) alleges facts that demonstrate
that Plaintiff should have been aware of the claim more than three years prior to the filing of
her December 1, 2010 complaint. (Code Civ. Proc. § 338, subd. (d).) In opposition, Plaintiff
argues that the discovery rule should apply because Plaintiff lacks knowledge or experience of
an attorney, and that the statute of limitations is tolled until the plaintiff “consult[s] an attorney
who recognizes the trappings and determines that it is actionable.” (Pl.‟s opposition to
demurrer (“Opposition”), p.3:17-24.) However, this is not the law. “The discovery rule only
delays accrual until the plaintiff has, or should have, inquiry notice of the cause of action.”
(Fox v. Ethicon Endo-Surgery Inc. (2005) 35 Cal.4th 797, 807.) “The discovery rule does not
encourage dilatory tactics because plaintiffs are charged with presumptive knowledge of an
injury if they have „information of circumstances to put them on inquiry‟ or if they have „the
opportunity to obtain knowledge from sources open to their investigation.‟” (Id. at 807-808,
quoting Gutierrez v. Mofid (1985) 39 Cal. 3d 892, 896.) Here, the allegations of the FAC
demonstrate that Plaintiff clearly had inquiry notice of these duplicative fraud causes of action
more than three years prior to the filing of his complaint. Thus, the fraud causes of action are
time-barred. Moreover, the claims are not alleged with sufficient specificity for fraud claims.
(See Lazar v. Super. Ct. (Rykoff-Sexton, Inc.) (1996) 12 Cal. 4th 631, 645 (stating that a fraud
cause of action must “allege the names of the persons who made the allegedly fraudulent
representations, their authority to speak, to whom they spoke, what they said or wrote, and
when it was said or written”).) Accordingly, Encore‟s demurrer to the first through third
causes of action is SUSTAINED without leave to amend. (See Goodman v. Kennedy (1976)
18 Cal. 3d 335, 349 (stating that “Plaintiff must show in what manner he can amend his
complaint and how that amendment will change the legal effect of his pleading”), quoting
Cooper v. Leslie Salt Co. (1969) 70 Cal. 2d 627, 636; see also Hendy v. Losse (1991) 54 Cal.
3d 723, 742 (stating that “the burden is on the plaintiff… to demonstrate the manner in which
the complaint might be amended”).)

        As to the fourth cause of action, Encore asserts that the FAC does not allege any ability
to tender the full debt owed. Indeed, the FAC alleges that “Plaintiff(s) could not afford their
mortgage.” (See FAC, ¶ 58.) In opposition, Plaintiff does not assert that he can tender the
amount owed but instead argues that “plaintiff cannot give back the loan proceeds because of
market deterioration attributable to the misconduct of defendants and their peers….”
(Opposition, p.3:10-13.) However, the California Supreme Court has stated that “[i]t is settled
in California that a mortgagor cannot quiet his title against the mortgagee without paying the
debt secured.” (Shimpones v. Stickney (1934) 219 Cal. 637, 649.) As it is apparent that
Plaintiff cannot amend his FAC to state a quiet title claim, the demurrer to the fourth cause of
action is SUSTAINED without leave to amend. (See also Karlsen v. American Savings &
Loan Assn. (1971) 15 Cal. App. 3d 112, 117 (stating that “[a] valid and viable tender of
payment of the indebtedness owing is essential to an action to cancel a voidable sale under a
deed of trust”); see also Arnolds Management Corp. v. Eischen (1984) 158 Cal.App.3d 575,
577-582; see also FPCI Re-Hab 01 v. E & G Investments, Ltd. (1989) 207 Cal. App. 3d 1018,
1021.)

        The fifth cause of action is dependent on the prior four causes of action. (See FAC, ¶
73 (alleging that “[i]f the court finds that the taking of Plaintiff‟s real property is wrongful and
actionable under one of these several causes of action, then the court may utilize this equitable
cause of action…”).) Accordingly, the demurrer to the fifth cause of action is SUSTAINED
without leave to amend. (See Cal. Ins. Guarantee Assn. v. Super. Ct. (Jakes at the Shore, Inc.)
(1991) 231 Cal. App. 3d 1617, 1623-1624 (stating that “[t]he declaratory relief statute should
not be used for the purpose of anticipating and determining an issue which can be determined
in the main action”); see also Code Civ. Proc. § 1061 (stating that “[t]he court may refuse to
exercise the power granted by this chapter in any case where its declaration or determination is
not necessary or proper at the time under all the circumstances”); see also Perlas v. GMAC
Mortgage, LLC (2010) 187 Cal.App.4th 429, 436 (stating that “[a] lender is under no duty to
determine the borrower‟s ability to repay the loan… [and] owes no duty of care to the
borrowers in approving their loan”); see also Nymark v. Heart Fed. Savings & Loan Assn.
(1991) 231 Cal. App. 3d 1089, 1096-1100; see also Wagner v. Benson (1980) 101 Cal. App. 3d
27, 35 (stating that “[l]iability to a borrower for negligence arises only when the lender
„actively participates‟ in the financed enterprise „beyond the domain of the usual money
lender”), quoting Connor v. Great Western Savings & Loan Assn. (1968) 69 Cal.2d 850, 864;
see also Price v. Wells Fargo Bank (1989) 213 Cal. App.3d 465, 476 (stating that there is “not
a fiduciary relation… between a bank and its loan customers”).)

        As to the sixth cause of action, judicially noticeable facts demonstrate that Encore did
not participate in the foreclosure, and thus cannot be liable for violation of Civil Code section
2924. Moreover, the sixth cause of action is “implicitly integrated” with the foreclosure on the
note and deed of trust, and since Plaintiff cannot allege full tender, the demurrer to the sixth
cause of action is SUSTAINED without leave to amend. (See Arnolds Management Corp. v.
Eischen (1984) 158 Cal.App.3d 575, 579; see also Putkkuri v. Recontrust Co. (S.D. Cal. 2009)
2009 U.S. Dist. LEXIS 32 *1, *6 (stating that “[p]roduction of the original note is not required
to proceed with a non-judicial foreclosure”); see also Phat Ngoc Nguyen v. Wells Fargo Bank,
N.A. (N.D. Cal. 2010) 749 F. Supp. 2d 1022, 1035 (stating that “California law does not
require possession of the note as a precondition to non-judicial foreclosure under a deed of
trust”).)




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Case Name: Clark, et al. v. Esprit US Retail Limited
Case No.:  1-11-CV-197001

        Esprit‟s demurrer to the first and second causes of action on the ground of uncertainty
is OVERRULED. (See Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139,
fn.2 [stating that “where the complaint contains substantive factual allegations sufficiently
apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be
overruled”]; see also Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616 [stating
that a demurrer should not lie where “even where a complaint is in some respects uncertain,
because ambiguities can be clarified under modern discovery procedures”].)

        Esprit‟s demurrer to the first and second causes of action on the ground of failure to
state sufficient facts is SUSTAINED WITH 10 DAYS LEAVE TO AMEND. Plaintiffs‟
allegations that Esprit failed to provide meal periods and rest periods are wholly conclusory.
(See FAC, ¶¶ 18, 24, 60, 65.) While a demurrer admits material facts properly pleaded, it does
not admit contentions, deductions, or conclusions of fact or law. (Kennedy v. Baxter
Healthcare Corporation (1996) 43 Cal.App.4th 799, 807.)

       The Court declines to rule on class suitability at the pleading stage. (See Prince v. CLS
Transportation (2004) 118 Cal.App.4th 1320, 1325 [class suitability for wage and hour claims
should not be determined by demurrer].)



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Case Name: Ali, et al. v. PNC Financial Services, Inc., et al.
Case No.:  1-11-CV-201576

        Defendants‟ demurrer to the first cause of action for failure to state sufficient facts is
SUSTAINED WITH 10 DAYS LEAVE TO AMEND. In this cause of action, Plaintiffs seek
to enforce Defendant‟s substantive obligations under the Servicer Participation Agreement
(“SPA”) executed between Defendant and the U.S. Treasury. (See Complaint, ¶¶ 18-20, 25.)
Plaintiffs rely on Marques v. Wells Fargo Home Mortgage Inc. (S.D. Cal. Aug. 12, 2010) U.S.
Dist. LEXIS 81879, a case in which the district court found a homeowner could state a claim
against the defendant as an intended beneficiary of the SPA. However, County of Santa Clara
v. Astra USA, Inc. (9th Cir. 2009) 588 F.3d 1237, 1243, the case on which the Marques court
relied has since been reversed by the Supreme Court of the United States (see County of Santa
Clara v. Astra USA, Inc. (2011) 131 S.Ct. 1342), and the Marques court‟s reasoning stands
counter to the weight of emerging authority. Accordingly, the Court finds that Plaintiffs
cannot be considered third-party beneficiaries to the SPA. (See Cleveland v. Aurora Loan
Servs., LLC (N.D. Cal. May 24, 2011) 2011 U.S. Dist. LEXIS 55168 [noting weight of
authority holds that a borrower does not have enforceable rights under the HAMP SPA]; also
see Simmons v. Countrywide Home Loans, Inc. (S.D. Cal. June 28, 2010) 2010 U.S. Dist.
LEXIS 65031.)

        Although Plaintiffs argue that Civil Code section 2923.6 requires Defendant to evaluate
them for a loan modification, section 2923.6 does not require lenders to take any action, but
merely expresses the hope that lenders will offer loan modifications on certain terms. (Mabry
v. Super. Ct. (Aurora Loan Services) (2010) 185 Cal.App.4th 208, 222-223 (emphasis
original).) However, Plaintiffs are granted leave to amend as they may be able to state a cause
of action under Civil Code section 2923.5.

        Defendant‟s demurrer to the second cause of action for failure to state sufficient facts is
SUSTAINED WITH 10 DAYS LEAVE TO AMEND. “The elements of promissory estoppel
are: “(1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the
promise is made; (3) his reliance must be both reasonable and foreseeable; and (4) the party
asserting the estoppel must be injured by his reliance.” (Laks v. Coast Fed. Sav. & Loan Assn.
(1976) 60 Cal.App.3d 885, 890; see also Garcia v. World Savings, FSB (2010) 183
Cal.App.4th 1031, 1045.) Here, Plaintiffs allege that, pursuant to the terms of the SPA,
Defendant promised to offer qualified homeowners a permanent modification. (See
Complaint, ¶¶ 12-14.) However, any promises made pursuant to the SPA were made to the
U.S. Treasury, and not Plaintiffs.

        Defendant‟s demurrer to the third cause of action for failure to state sufficient facts is
SUSTAINED WITH 10 DAYS LEAVE TO AMEND. In this cause of action, Plaintiffs allege
that Defendant breached its duty of care in the servicing of Plaintiffs‟ loan by failing to
evaluate Plaintiffs for mortgage relief. (See Complaint, ¶ 37.) However, Plaintiffs have not
allege facts sufficient to support the finding of a duty under the Biakanja factors. (See Garcia
v. Ocwen Loan Servicing, LLC (N.D. Cal. May 6, 2010) 2010 U.S. Dist. LEXIS 45375
[applying test established in Biakanja v. Irving (1958) 49 Cal.2d 647 and finding plaintiff had
stated negligence claim against loan servicer].)
        Defendant‟s demurrer to the fourth cause of action for failure to state sufficient facts is
SUSTAINED WITH 10 DAYS LEAVE TO AMEND. “The elements of negligent
misrepresentation are (1) the misrepresentation of a past or existing material fact, (2) without
reasonable ground for believing it to be true, (3) with the intent to induce another‟s reliance on
the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting
damage. (Apollo Capital Fund LLC v. Roth Capital Partners, LLC (2007) 158 Cal.App.4th
226, 243.) Plaintiffs have failed to allege the misrepresentation with specificity. (See
Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73 [Fraud must be pleaded with specificity;
facts which “show how, when, where, to whom, and by what means the representations were
tendered.”].)

        Defendant‟s demurrer to the fifth cause of action for failure to state sufficient facts is
SUSTAINED WITH 10 DAYS LEAVE TO AMEND. To state a cause of action for
intentional misrepresentation, a plaintiff must allege: (1) misrepresentation (false
representation, concealment, or nondisclosure); (2) knowledge of falsity (or “scienter”); (3)
intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage.
 (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) Again, Plaintiffs have failed to allege
the misrepresentation with specificity. (See Tarmann v. State Farm Mutual Auto. Ins. Co.
(1991) 2 Cal.App.4th 153, 157 [to assert a fraud action against a corporation, plaintiffs must
allege the names of the person(s) who allegedly made the fraudulent representation, their
authority to speak, to whom they spoke, and what they said or wrote, and when it was said or
written].)

        Defendant‟s demurrer to the sixth cause of action for failure to state sufficient facts is
SUSTAINED WITH 10 DAYS LEAVE TO AMEND. With regard to the “unlawful” prong,
the Unfair Competition Law (“UCL”) “borrows” violations of other laws and treats them as
unlawful practices independently actionable under the UCL. (See Gafcon, Inc. v. Ponsor &
Assocs. (2002) 98 Cal.App.4th 1388, 1425 fn. 15.) “Fraudulent,” as used in the statute, does
not refer to the common law tort of fraud but only requires a showing members of the public
“are likely to be deceived.” (Olsen v. Breeze, Inc. (1996) 48 Cal.App.4th 608, 618.) Finally,
California courts have applied three different standards to determine whether a business act or
practice is “unfair”:    (1) unfair conduct must be “tethered to specific constitutional, statutory
or regulatory provisions”, (2) unfair conduct requires the court to weigh the utility of the
defendant‟s conduct against the gravity of the harm to the alleged victim to find that the
defendant‟s conduct is immoral, unethical, oppressive, unscrupulous, or substantially injurious
to consumers, or (3) unfair conduct requires that the consumer injury must be substantial, the
injury must not be outweighed by any countervailing benefits to consumers or competition, and
it must be an injury that consumers themselves could not reasonably have avoided. (See Drum
v. San Fernando Valley Bar Ass’n (2010) 182 Cal.App.4th 247, 257.)

        Here, Plaintiffs‟ allegations that Defendant violated various sections of the Civil Code
and failed to comply with the HAMP guidelines are wholly conclusory and thus no underlying
unlawful conduct has been alleged. (See Complaint, ¶ 54.) These conclusory allegations are
also insufficient to show that Defendant‟s conduct was “unfair” under any of the three tests or
likely to deceive members of the public.


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Case Name: Capital One Bank (USA) N.A. v. Leon
Case No.:  1-10-CV-190177

        After full consideration of the evidence, the separate statements by each party, and the
authorities submitted by each party, the Court rules as follows:

         Plaintiff‟s complaint requests interest at “the contract rate of 12.600 percent.” (See
Complaint, p. 3:18-19.) However, the 12.6% pre-judgment interest rate does not appear in the
Customer Agreement, and in its motion Plaintiff requests 10% interest pursuant to Civil Code
section 3289. (See Golden Decl., p. 2:1-5.) Civil Code section 3289 provides that any legal
rate of interest in a contract remains chargeable after breach until superseded by a verdict or
new obligation, unless the contract does not stipulate to a legal rate, in which case the rate is 10
percent. Civil Code section 3289 only applies to contracts entered into after January 1, 1986
(see Civ. Code, § 3289, subd. (b)), and Plaintiff does not provide any evidence as to when
Plaintiff and Defendant entered into the Agreement. Additionally, the Agreement states that it
is “governed only by Federal law and Virginia law (to the extent not preempted by Federal
law).” (See Davis Decl., ¶ 15 and Exh. 1, p. 2.) Therefore, Plaintiff is not entitled to a
calculation of prejudgment interest pursuant to California law. Accordingly, Plaintiff‟s motion
for summary judgment is DENIED as Plaintiff fails to meet its initial burden. (See Code Civ.
Proc., § 437c, subd. (p).)

       Defendant‟s evidentiary objections are OVERRULED.



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