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					            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: 3-20-12 TIME: 9 A.M.
             PREVAILING PARTY SHALL PREPARE THE ORDER
                      (SEE RULE OF COURT 3.1312)

LINE #      CASE #              CASE TITLE                                    RULING
LINE 1   111cv197975   Harley-Davidson Credit Corp. vs Order of Examination
                       P. Flores III
LINE 2   111cv198749   M. Movassate vs Colliers Parrish Click on line 2 for ruling
                       International Inc.
LINE 3   111cv202899   G. Cobai vs Lehigh Southwest     Click on line 3 for ruling
                       Cement Company
LINE 4   111cv205229   R. Challman vs H. Nelson        Click on line 4 for ruling
LINE 5   111cv207998   M. Bedolla vs Bank of New York  Demurrer to Complaint is unopposed and is
                       Mellon Trust Co.                SUSTAINED with leave to amend.
LINE 6   111cv193538   Capital One Bank vs W. Katen    Plaintiff’s Motion for Judgment on the
                                                       pleadings is unopposed and is GRANTED.
LINE 7   111cv199990   Cavalry Portfolio Services, LLC Demurrer of Cross Complainant to Cross
                       vs T. Hernandez                 Complaint is unopposed and is SUSTAITNED
                                                       with leave to amend.
LINE 8   110cv182448   J. Gabele vs Hewlett-Packard    Continued to 5-31-12 by stip and order
                       Company
LINE 9   110cv173255   L. Oiye vs J. Fox               Rescheduled to Dept 78, 4-6-12 11am.
LINE 10 111cv194215    K. Bhola vs R. Battistela      Motion to be relieved as attorney of record is
                                                      unopposed and is GRANTED.
LINE 11 111cv204713    Citibank vs R. Moen             Off calendar
LINE 12 111cv207037    Lehigh Southwest Cement Co. vs Motion by Bay Area Clean Environment to
                       California Department of       intervene in this case is DENIED.
                       Conservation
LINE 13 111cv207521    Allied Trustee Services vs N.       Plaintiff Allied’s Motion for Discharging
                       Afanador                            Stakeholder and for Attorneys Fees is
                                                           unopposed and is GRANTED. Plaintiff is
                                                           awarded $6,349.29 in fees and costs.
LINE 14 111cv208649    J. Bueno vs Wells Fargo Bank        Click on line 14 for ruling
LINE 15 111cv214243    Sterling Savings Bank vs D.         Cont to 4/10
                       Feece
             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
LINE 16 111cv198748    Golden Gate Financial LLC vs        Motion for leave to file Cross Complaint by
                       San Jose High School Alumni         Defendant San Jose is unopposed and is
                       Association                         GRANTED.
LINE 17 111cv210528    CACH, LLC vs J. Calilung            Motion to have Admissions deemed admitted is
                                                           unopposed and is GRANTED. Sanctions are
                                                           awarded against Defendant in amount of
                                                           $377.50 to be paid within 15 days of this order.
LINE 18 110cv184969    L. Henriquez vs First Allied        Off Calendar by moving party
                       Funding Group
LINE 19 111cv204157    D. Vuong vs Q. Vuong                Off Calendar, moving paper not filed.
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Case Name: Manoutchehr Movassate and Jaleh Movassate, Trustees, The Movassate Family
Trust Dated February 5, 2008 v. Colliers Parrish International, Inc., et al.
Case No.:     1-11-CV-198749

         Defendants Colliers Parrish International, Inc. (“Colliers”), Mark P. Zamudio
(“Zamudio”) and Chris C. Twardus’ (“Twardus”) (collectively, “Broker Defendants”) request
for judicial notice is not opposed, and is GRANTED in its entirety. (Evid Code § 452, subds.
(a), (d); see also Stormedia Inc. v. Super. Ct. (Werczberger) (1999) 20 Cal.4th 449, 457, fn.9;
see also Aquila, Inc. v. Super. Ct. (City and County of San Francisco) (2007) 148 Cal.App.4th
556, 569-575.)

         Previously, the Court sustained the demurrer to the first amended complaint’s (“FAC”)
first cause of action of for negligence1 against Zamudio and Colliers—to the extent that the
claim was based on Zamudio’s acts, stating:

                 The complaint in the instant action alleges Zamudio and Colliers
                 breached their duty by “passing on ‘reports’ and information that
                 was improper, incomplete and misleading.” (Complaint, ¶ 56.)
                 Here, however, as with the federal first amended complaint,
                 Plaintiffs again fail to allege any duty as to Zamudio, and by
                 extension, Colliers. Accordingly, the demurrer to the first cause
                 of action for failure to state facts sufficient to constitute a cause
                 of action against defendants Zamudio and Colliers is
                 SUSTAINED with 10 days leave to amend. (See Carleton v.
                 Tortosa (1993) 14 Cal. App. 4th 745, 755 (stating that “[r]eal
                 estate brokers are subject to two sets of duties: those imposed by
                 regulatory statutes, and those arising from the general law of
                 agency”; also stating that where the duties do not arise from
                 statute, the duty must necessarily arise “from the general law of
                 agency, i.e., from the agreement between the principal and
                 agent… [and] are determined by the terms of the agreement
                 between the parties, interpreted in light of the circumstances
                 under which it is made, except to the extent that fraud, duress,
                 illegality, or the incapacity of one or both of the parties to the
                 agreement modifies it or deprives it of legal effect”); see also
                 Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008)
                 162 Cal. App. 4th 858, 875-876 (stating that there is no duty
                 owed to a purchaser of commercial property by the seller’s
                 broker).)

(November 17, 2011 order re: demurrer to first amended complaint, pp.5-6.)
        As to the FAC’s second cause of action for breach of fiduciary duty, the Court
sustained the demurrer, stating:

1
 The FAC’s first cause of action for negligence was alleged against all Broker Defendants. The FAC’s second
cause of action was alleged only against Twardus and Colliers.
                The complaint in the instant action also alleges that Twardus and
                Colliers breached their duty by “failing to advise MOVASSATE
                of the inadequacies of the Phase II report and either recommend
                to MOVASSATE that the Seller be asked to explain these
                inadequacies or to himself conduct an investigation of those
                inadequacies to assist MOVASSATE in making an informed
                opinion with respect to the purchase and the development of the
                Property.” (Complaint, ¶¶ 54-55.) The alleged disclosures in the
                complaint were the Phase I and Phase II environmental reports
                and the documents entitled “Remediation” and “Certificate of
                Completion.” (See complaint, ¶¶ 21-26.) The allegations of the
                instant complaint regarding the Phase II report assert that the
                report indicated that the Property did not indicate that “there was
                any hazardous waste in the soil or groundwater.” (See
                complaint, ¶¶ 33-35.) The complaint alleges that Plaintiffs “did
                not expect to do their own investigation of the Property or
                confirm the accuracy of any of the scientific findings of any
                report” but then alleges that “[i]n the course of refinancing their
                loan, MOVASSATE was required to do a Soil and Groundwater
                Investigation of the Property… [that] found solvents in either the
                soil or groundwater and chlorinated hydrocarbons (solvents) in
                the groundwater… [and h]ad MOVASSATE known of this
                contamination, they never would have entered into the
                Agreement.” (Complaint, ¶¶ 45, 48.) Therefore, the alleged
                breach of any duty that caused any damages is the alleged failure
                to notify Plaintiffs as to the soil or groundwater contamination,
                and, as with the federal first amended complaint, Plaintiffs again
                fail to allege any duty as to defendants Twardus and Colliers.
                (See Carleton, supra, 14 Cal. App. 4th at 755-756 (claim of duty
                negated by specific documents limiting scope of duty of real
                estate broker); see also Cantu v. Resolution Trust Corp. (1992) 4
                Cal. App. 4th 857, 877; see also Del E. Webb Corp. v. Structural
                Materials Co. (1981) 123 Cal. App. 3d 593, 604 (stating that
                “courts… will not close their eyes to situations where a
                complaint contains allegations of fact inconsistent with attached
                documents, or allegations contrary to facts which are judicially
                noticed”; also stating that “a pleading valid on its face may
                nevertheless be subject to demurrer when matters judicially
                noticed by the court render the complaint meritless”).)
                Accordingly, the demurrer to each cause of action of the
                complaint for failure to state facts sufficient to constitute a cause
                of action against to defendants Twardus and Colliers is
                SUSTAINED with 10 days leave to amend.

(Id. at p.6.)

       On October 28, 2011, Plaintiff filed a second amended complaint (“SAC”), asserting
the same claims.
The demurrer as to defendant Zamudio and to defendant Colliers to the extent that the
claim is based on Zamudio’s acts

        The SAC does not contain any new allegations as to defendant Zamudio. In fact, the
SAC removes the allegation that Zamudio even breached any duty. (See FAC, ¶ 57; compare
with SAC, ¶¶ 63-69.) Accordingly, the demurrer to the first cause of action for negligence as
to defendant Zamudio and as to defendant Colliers to the extent that the claim is based on
Zamudio’s acts is SUSTAINED without leave to amend. (See Carleton v. Tortosa (1993) 14
Cal. App. 4th 745, 755; see also Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC
(2008) 162 Cal. App. 4th 858, 875-876 (stating that there is no duty owed to a purchaser of
commercial property by the seller’s broker); see also Artiglio v. Corning Inc. (1998) 18 Cal.4th
604, 614 (stating that to plead a cause of action for negligence, Plaintiff must allege a breach of
a duty).)

The demurrer as to defendant Twardus and to defendant Colliers to the extent that the
claim is based on Twardus’ acts

        As to defendant Twardus and defendant Colliers to the extent that the SAC is based on
Twardus’ acts, the allegations of the first and second causes of action are largely unchanged
from the FAC’s allegations. The SAC adds three paragraphs relating to the earlier federal
action, but other than headings, does not substantially amend the FAC. (See SAC, ¶¶ 11-75.)
Plaintiff’s opposition to the demurrer to the SAC is substantially similar to its opposition to the
FAC: they both restate the allegations of the pleadings, and then highlight asserted differences
in the pleading from the complaint in the federal action. (See Pl.’s opposition to demurrer to
SAC (“Opposition”), pp. 2:24-7:17; compare with Pl.’s opposition to demurrer to FAC,
pp.2:21-9:28.)

         As with the FAC, the SAC again alleges that the alleged breach of any duty that caused
any damages by Twardus and Colliers is the alleged failure to notify Plaintiffs as to the soil or
groundwater contamination. (See SAC, ¶¶ 68, 74.) Specifically, the SAC alleges that Twardus
and Colliers breached their duty by: failing to review the Phase II report certain documents and
merely passed on reports the without reading them; and, failing to recommend to Plaintiff that
Plaintiff conduct environmental investigation based on the reports. (Id.) As previously stated,
“[r]eal estate brokers are subject to two sets of duties: those imposed by regulatory statutes,
and those arising from the general law of agency.” (Carleton v. Tortosa (1993) 14 Cal.App.4th
745, 755; see also Ky. Fried Chicken of Cal. v. Super. Ct. (Brown) (1997), 14 Cal.4th 814, 819
(stating that “the existence of a duty is a question of law for the court”); see also Vasquez v.
Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 278 (same); see also Pacific Gas &
E. Co. v. G. W. Thomas Drayage & Rigging Co. (1968) 69 Cal. 2d 33, 38 (stating that “the
intention of the parties as expressed in the contract is the source of contractual rights and
duties”); see also City of Hope National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th
375, 395, fn.5 (stating that “[t]he existence of a contractual legal duty is determined by the
terms of the parties’ contract”).) As with the FAC, the SAC does not allege the breach of any
statutory duty. (See Covenant Care, Inc. v. Super. Ct. (Inclan) (2004) 32 Cal. 4th 771, 790
(stating that “statutory causes of action must be pleaded with particularity”).) Accordingly, the
alleged breach of any duty is limited to those duties derived “from the general law of agency,
i.e., from the agreement between the principal and agent.” (Carleton, supra, 14 Cal.App.4th at
755.)
        Here, the SAC alleges that Plaintiff signed a Dual Agency Agreement and an
agreement entitled “Disclosures, Expert Matters and Responsibilities of Parties”—both of
which were signed prior to the closing of escrow. (See SAC, ¶¶ 50, 57.) The court has taken
judicial notice of these agreements referenced by the SAC and signed by Plaintiff. Plaintiff
does not allege that Twardus did anything to prevent it/him from reading the document in its
entirety. Plaintiff does not allege or argue that it entered into the agreements due to fraud,
duress, illegality or duress. Instead, as in Carleton, supra, Plaintiff asserts in opposition, that
“like in many purchases, plaintiffs were given a large stack of documents to sign by their
broker.” (Opposition, p.11:23-24; see also Carleton, supra, 14 Cal.App.4th at 755 (stating that
Plaintiff’s “failure to read the documents does not permit him to avoid their legal effect”).)

        The Dual Agency Agreement is less than one page in length and states that Plaintiff
agreed to Twardus’ representation of him in a “dual agency capacity,” that Plaintiff
“acknowledge[s] that [he was] informed of the possibility of this type of representation,” and
that he “consent[s] to and authorizes Colliers International to engage in this dual agency” and
“acknowledges the above understanding and consent[s] to [Twardus’] service as a dual agent
on behalf of both Owner and Buyer/Lessee.”

         Similarly, the Expert Matters and Disclosures Agreement is less than one page and
states that Plaintiff acknowledges that “Broker has no responsibility to, has not made and will
not make an independent investigation or determination with respect to any Expert Matters…
includ[ing], but not limited to… the use, generation, storage or presence of hazardous or toxic
substances and underground storage tanks….” Plaintiff further acknowledged that “[a]ny
information communicated by Broker regarding any of the Expert Matters arises from third
party sources and has not been and will not be independently verified by Broker.” Plaintiff
further acknowledged that the Broker Defendants explicitly recommended that Plaintiff “obtain
the advice of qualified professionals and experts prior to the consummation of any
transaction… [and] should not and will not rely on Broker with regard to Expert Matters, but
instead will rely entirely on their own investigation and those of qualified professionals and
experts.” Finally, Plaintiff acknowledged that “Broker shall have no responsibility for property
disclosures beyond the delivery and/or disclosure of information provided by the Owner or
known to the Broker… includ[ing], but not limited to… toxic mold disclosures, known
material defects, [or] presence or proximity to hazardous materials” and that Plaintiff “should
not and will not rely on Broker with regard to matters of disclosure required by Owners, but
instead will rely entirely on their own investigation and that of qualified professionals and
experts.”

        As with the FAC, it is clear that the alleged duties that caused any damages in the
SAC’s first two causes of action were not duties assumed by Twardus and Colliers as
encompassed by the agreements. (See Carleton, supra, 14 Cal. App. 4th at 755-756 (claim of
duty negated by specific documents limiting scope of duty of real estate broker); see also
Cantu v. Resolution Trust Corp. (1992) 4 Cal. App. 4th 857, 877; see also Del E. Webb Corp. v.
Structural Materials Co. (1981) 123 Cal. App. 3d 593, 604 (stating that “courts… will not
close their eyes to situations where a complaint contains allegations of fact inconsistent with
attached documents, or allegations contrary to facts which are judicially noticed”; also stating
that “a pleading valid on its face may nevertheless be subject to demurrer when matters
judicially noticed by the court render the complaint meritless”).)
        In opposition, Plaintiff argues that the Broker Defendants breached their duty because
they acted negligently prior to the signing of the Dual Agency Agreement and Disclosures and
Expert Matters Agreement. (See Opposition, pp.11:16-26, 12:1-26 (stating “[i]f the defendants
really wanted to limit their duties, why did they not ask for these documents to be signed
during the First Purchase Agreement when it really mattered?”).) However, the SAC alleges
that the First Purchase Agreement was cancelled and “was null and void.” (SAC, ¶¶ 47-48.)
Therefore, its first two causes of action for negligence and breach of fiduciary duty cannot be
based on damages flowing from the First Purchase Agreement because there were no damages
as result of the First Purchase Agreement. In fact, Plaintiff admits in opposition that
“defendants breached most, if not all, of their duties prior to June 19 and June 25, 2008.”
(Opposition, p.12:11-12.) Yet, Plaintiff alleges that the close of escrow—when Plaintiff was
damaged—did not occur until June 26, 2008. (See SAC, ¶ 56.) Accordingly, since Plaintiff
has not stated facts sufficient to constitute a cause of action for negligence or breach of
fiduciary duty, and has not suggested an amendment that would change the legal effect of his
pleading, the demurrer to the first and second causes of action as to defendant Twardus and as
to defendant Colliers to the extent that the claim is based on Twardus’ acts 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”).)


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Case Name: Cobai v. Lehigh Southwest Cement Co.
Case No.:  1-11-CV-202899

        On December 22, 2011, the Court previously sustained the demurrer to the complaint
on the grounds that it was uncertain and failed to state facts sufficient to constitute a cause of
action.

        The first amended complaint (“FAC”) newly alleges that defendant Lehigh Southwest
Cement Company (“Defendant”) is wrongfully withholding plaintiff Gregory Cobai’s
(“Plaintiff”) wages, specifically, “Federal Witholding Tax, CALIFORNIA State Tax, FICA,
Medicare, and CALIFORNIA State Disability Insurance.” (FAC, ¶¶ 6, 10-16, prayer.)

       However, as Defendant argues, such withholding of taxes by the employer defendant is
not wrongful as it is authorized by federal and state law. (See 26 U.S.C. §§ 3102(a)-(b),
3402(a)(1) 3101-3128; Lab. Code §§ 221, 224; Rev. & Tax. Code § 18662, subd. (a); Unemp.
Ins. Code §§ 985, 13020.)

        Plaintiff’s opposition is untimely; but nevertheless, his arguments are without merit.
Plaintiff does not suggest how he might be able to amend his complaint. (See Goodman v.
Kennedy (1976)18 Cal. 3d 335, 349 (stating that “Plaintiff must show in what manner he can
amend his complaint and how that amendment will change the legal effect of his pleading”),
quoting Cooper v. Leslie Salt Co. (1969) 70 Cal. 2d 627, 636; see also Hendy v. Losse (1991)
54 Cal. 3d 723, 742 (stating that “the burden is on the plaintiff… to demonstrate the manner in
which the complaint might be amended”).) Accordingly, the demurrer to the FAC is
SUSTAINED without leave to amend.



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Case Name: Challman v. Nelson, et al.
Case No.:  1-11-CV-205229

        Defendant Helen C. Nelson’s demurrer to the third cause of action for failure to state
sufficient facts SUSTAINED WITHOUT LEAVE TO AMEND. “The elements of the tort of
intentional infliction of emotional distress are: ‘(1) extreme and outrageous conduct by the
defendant with the intention of causing, or reckless disregard of the probability of causing,
emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3)
actual and proximate causation of the emotional distress by the
defendant’s outrageous conduct.’” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th
965, 1001.)

        While fleeing the scene of an accident is potentially outrageous conduct, Plaintiff has
not alleged a causal connection between Defendant’s fleeing and Plaintiff’s damages.
Additionally, Plaintiff has failed to allege sufficient facts establishing that Defendant’s conduct
of driving while drowsy exceeds all bounds of that usually tolerated in a civilized community.
(See Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494.) Furthermore, the outrageous
conduct must be directed at the plaintiff, or occur in the presence of a plaintiff of whom the
defendant is aware. (Potter v. Firestone Tire & Rubber Co., supra, 6 Cal.4th at p. 1002.) As
Defendant was asleep when the collision occurred, she could not have been aware of Plaintiff
riding his bicycle or directed her conduct at Plaintiff.

        Defendant’s demurrer to the fourth cause of action for failure to state sufficient facts is
OVERRULED. Civil battery is any intentional, unlawful and harmful contact by one person
with the person of another. (Ashcraft v. King (1991) 228 Cal.App.3d 604, 611; also see CACI
1300 [battery].) Plaintiff alleges that Defendant operated her motor vehicle while under the
influence of medication that affected her ability to safely operate the vehicle. Plaintiff also
alleges that minutes before the collision, Defendant had fallen asleep at the wheel, yet decided
to continue operating her vehicle. Accordingly, Plaintiff has alleged facts sufficient to state a
cause of action for battery. (See Ashcraft v. King, supra, 229 Cal.App.3d at p. 613 [stating, in
an action for civil battery, the element of intent is satisfied if the evidence shows defendant
acted with a “willful disregard” of the plaintiff’s rights].)

        Defendant moves to strike Plaintiff’s prayer for punitive damages and all references
regarding punitive damages. In light of the above ruling, Defendant’s motion to strike is
MOOT as it relates to the third cause of action and otherwise DENIED as Plaintiff has alleged
facts establishing Defendant was guilty of malice. (See Civ. Code, § 3294, subd. (c)(1)
[“malice” means conduct which is intended by the defendant to cause injury to the plaintiff or
despicable conduct which is carried on by the defendant with a willful and conscious disregard
of the rights or safety of others].)



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Bueno v Wells Fargo
111CV 208649

       The Court finds that the Plaintiffs have not shown that they will likely prevail on
the merit of this case, therefore they are not entitled to a Preliminary Injunction. The
application for Preliminary Injunction is DENIED, and the TRO is disolved.

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