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					            SUPERIOR COURT, STATE OF CALIFORNIA
                  COUNTY OF SANTA CLARA
              Department 1, Honorable James P. Kleinberg Presiding
                                Paula Bastian, Courtroom Clerk
                                 Joanne Rocha, Court Reporter
                          191 North First Street, San Jose, CA 95113
                     Telephone: 408.882.2110 - Facsimile: 408.882.2493
                  To contest the ruling, call (408) 808-6856 before 4:00 P.M.


                LAW AND MOTION TENTATIVE RULINGS
                     DATE: 12/01/09  TIME: 9 A.M.
             PREVAILING PARTY SHALL PREPARE THE ORDER
                      (SEE RULE OF COURT 3.1312)

LINE #      CASE #            CASE TITLE                                RULING
LINE 1   109CV137033 Lim v Downey Savings            Click on LINE 1 for ruling
LINE 2   109CV146829 Lennard v Landscape Pros        Click on LINE 2 for ruling
LINE 3   108CV103523 Kerkeles v City of San          Parties to appear
                     Jose
LINE 4   108CV119224 Dollinger v Chicago Title Continued to January 28, 2010
LINE 5   106CV075836 JDP Trust v Old Country   Continued to December 3, 2009
LINE 6   108CV111304 Trans Pacific v G2Sources Motion to stay action DENIED; Plaintiff’s
                                               evidentiary objections SUSTAINED
LINE 7   108CV114758 Alva v HCR Manor Care Click on LINE 7 for ruling
LINE 8   108CV119172 Green Valley v Wildflower Off calendar
LINE 9 108CV128350 Masters v Shaw                    Continued to December 8, 2009
LINE 10 109CV139591 Cintas Corp v Pinn Bros          Motion to vacate and set aside dismissal
                                                     unopposed and GRANTED
LINE 11 109CV147737 Hiramanek v Hiramanek Off calendar
LINE 12 702CV426108 Financial Indem v Ashby Motion to enforce settlement unopposed and
                                            GRANTED
LINE 13 106CV076671 Sify v Yahoo!           Continued to May 25, 2010
LINE 14 108CV120942 Chavez v Keatley        Off calendar
LINE 15 108CV130308 Post & Copy Net v                Off calendar
                    Muppaneni
LINE 16 109CV154040 Wilkins v Royal Crown            Click on LINE 16 for ruling
                    Funding
LINE 17 104CV016052 Capital One v Gardner   Claim of exemption
LINE 18 108CV128248 Brockington v JP Morgan Click on LINE 18 for ruling
                    Chase
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Case Name: Lim v. U.S. Bank, et al.
Case No.: 1-09-CV-137033

Defendants Deutsche Bank National Trust Company and Ocwen Loan Servicing, LLC’s
(“Defendants”) request for judicial notice of the deed of trust and notice of default is
unopposed. The request for judicial notice is GRANTED. (See Evans v. California Trailer
Court, Inc. (1994) 28 Cal.App.4th 540.)

The demurrer to the entire second amended complaint (“SAC”) is OVERRULED. A general
demurrer will be overruled if a complaint states any valid claim entitling a plaintiff to relief.
(See Quelimane Co., Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 38-39.) Here,
plaintiff has properly alleged causes of action against Defendants for declaratory relief,
conspiracy, and unjust enrichment.

The demurrer on uncertainty grounds is OVERRULED. These causes of action contain
sufficient factual allegations in order to allow Defendants to properly respond. (Khoury v.
Maly’s of California (1993) 14 Cal.App.4th 612, 616.)

The demurrer the first cause of action for declaratory relief is OVERRULED. Plaintiff has
alleged the existence of a present controversy over the parties’ contractual rights under the
subject loan, and requests that the court declare the rights of the parties. This is sufficient to
state a cause of action for declaratory relief.

The demurrer to the second cause of action for civil conspiracy is OVERRULED. Plaintiff has
alleged sufficient facts to demonstrate the existence of a conspiracy, the wrongful acts done
pursuant to the conspiracy, and the damages he suffered as a result of the conspiracy. This is
sufficient to state a cause of action for conspiracy.

The demurrer to the seventh cause of action for unjust enrichment is OVERRULED. Plaintiff
has alleged sufficient facts to state a cause of action by alleging that Defendants received the
benefit of monetary payments pursuant to the mortgage loan to which they were not entitled.


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Case Name: Lennard v. Landscape Pros, et al.
Case No.: 1-09-CV-146829

Martin Lemuz’s (“Lemuz”) request for judicial notice is not code-compliant and is therefore
DENIED. (See California Rules of Court, rule 3.1113.)

Lemuz’s demurrer to the complaint of plaintiffs Ian Lennard and Carrie Berkovich
(“Plaintiffs”) for misjoinder of parties is OVERRULED. Lemuz has not demonstrated that he
will suffer prejudice or that his interests will be impaired by allowing Landscape Pros to
remain as a separate defendant in this action. (See Anaya v. Sup. Ct. (1984) 160 Cal.App.3d
228, 231.) Further, this argument is premature since Plaintiffs have not been given an
opportunity to conduct discovery to determine the relationship between Lemuz and Landscape
Pros.

Lemuz’s demurrer to Plaintiffs first cause of action for negligence is OVERRULED. Lemuz’s
argument that this cause of action does not satisfy the economic loss rule is not well taken
since the complaint alleges that Plaintiffs have had numerous dead or dying plants, structural
failures, rodent infestation, improper water distribution, and earth movement and subsidence as
a result of the deficient work performed by Lemuz and Landscape Pros. (See Complaint, par.
10 (a-g).)

Lemuz’s demurrer to Plaintiffs second cause of action for breach of contract is OVERRULED.
This cause of action alleges that the subject contracts were both oral and written. Additionally,
Lemuz has not demonstrated that the contract provision requiring a writing prevents the parties
from entering into an enforceable oral agreement with each other. Further, this cause of action
alleges that Lemuz breached the written contracts, and therefore this demurrer improperly
attempts to demurrer to a portion of the pled cause of action. (See Kong v. City of Hawaiian
Gardens Redevelop. Agency (2003) 108 Cal.App.4th 1028, 1046.)



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Case Name: Alva v. Manor Care of Sunnyvale, et. al.
Case No.: 1-08-CV-114758

Plaintiff’s Motion for leave to file Fourth amended Complaint is DENIED. No newly
discovered facts have been presented to warrant the amendment, the statute of limitations has
run on the proposed additional claims, and the Defendants would be prejudiced by amending
the complaint for a fifth time and thereby requiring further discovery.

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Case Name: Wilkins v. Royal Crown Funding, et.al.
Case No.: 1-09-CV-154040

Assignee of Judgment Creditor’s Request for Judicial Notice of November 9, 2009 is
GRANTED. Motion for sale of property GRANTED. The 1992 quitclaim deed (which reflects
no consideration for the transfer) is of no force and effect because Yashna Asnani has failed to
make the required proof, and in light of the documents judicially noticed, the property belongs
to the community and is therefore subject to execution.

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Case Name: Brockington v. J.P. Morgan Chase, et al.
Case No.: 1-08-CV-128248

Defendant J.P. Morgan Chase Bank, N.A.’s (“Chase”) request for judicial notice of the
recorded documents, which is unopposed, is GRANTED. (See Evans v. California Trailer
Court, Inc. (1994) 28 Cal.App.4th 540.)

Plaintiffs Kimberly A. Brockington and Lally Brockington’ (“Plaintiffs”) request for judicial
notice is DENIED. Plaintiffs have not demonstrated the relevance of these documents to the
present action. Further, Plaintiffs have not cited a proper basis for taking judicial notice of the
issue brief from the Center for Responsible Lending.

Chase’s demurrer to the first cause of action for violation of Business and Professions Code
section 17200 is OVERRULED. Plaintiffs have stated sufficient facts to state a cause of
action. Further, a Section 17200 cause of action can be based on a single unlawful, unfair, or
fraudulent act or practice. (See Klein v. Earth Elements, Inc. (1997) 59 Cal.App.4th 965, 969,
n.3.) Additionally, this demurrer improperly attacks a part of this cause of action since not all
of the alleged acts contained in this cause of action are covered by the shorter one year statute
of limitations that applies to Truth in Lending Act (“TILA”) and Real Estate Settlement
Procedures Act claims. (See Kong v. City of Hawaiian Gardens Redevelop. Agency (2003) 108
Cal.App.4th 1028, 1046.) Finally, this cause of action is not preempted by TILA.

Chase’s demurrer to the second cause of action for concealment is OVERRULED. This cause
of action does not state a claim for concealment because Plaintiffs have not provided legal
authority demonstrating that Chase or the other defendants had a duty to disclose the nine
specific instances of concealment set forth in paragraph 51 of the SAC. However, Plaintiffs
have alleged a cause of action for breach of fiduciary duty. In order to plead a cause of action
for breach of fiduciary duty, a fiduciary duty must exist, the fiduciary duty must be breached,
and damage must have resulted from the breach. (See Brown v. Cal-Pension Adm’rs and
Consultants, Inc. (1986) 45 Cal.App.4th 333, 347-348.) Here, Plaintiffs have alleged that the
individual defendants owed them a fiduciary duty as their mortgage broker, that they breached
that fiduciary duty by taking steps that were not in Plaintiffs best interests, and that they
suffered damages as a result. Further, the other defendants are alleged to be Chase’s agents.



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