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State of California Vs. Bank of America

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					            SUPERIOR COURT, STATE OF CALIFORNIA
                  COUNTY OF SANTA CLARA
                       Department 8, Honorable Peter Kirwan
                               Ingrid Stewart, Courtroom Clerk
                              Melissa Crawford, Court Reporter
                          191 North First Street, San Jose, CA 95113
                                  Telephone: 408.882.2180
         To contest the ruling, call (408) 808-6856 before 4:00 P.M.

                LAW AND MOTION TENTATIVE RULINGS
                  DATE: August 18, 2011 TIME: 9 A.M.
             PREVAILING PARTY SHALL PREPARE THE ORDER
                      (SEE RULE OF COURT 3.1312)

LINE #      CASE #           CASE TITLE                                RULING
LINE 1   108cv128475    Pensco Trust Co., et al vs.   Order of Examination---(Charice Fischer aka
                        RNC Holdings                  Charice Buchholz)
LINE 2   110cv170645    Miracle Recreation            Order of Examination---(Edward Scott
                        Equipment Co. vs.             Nolan)---Proof of Service Required
                        Landgro A. Corporation
LINE 3   110cv185245    N. Quach vs. T. Quach, et     Click on Line 3 for Ruling
                        al
LINE 4   110cv186074    Crawford Pimentel & Co.,      Demurrer to the Second Amended
                        Inc., vs. Singer Lewak        Complaint---No Opposition was filed with
                        LLP                           the Court. Continued to 8/25/11. Plaintiff is
                                                      ordered to file their Opposition no later than
                                                      8/19/11
LINE 5   111cv195413    K. Koo, et al vs. Wells       Click on Line 5 for Ruling
                        Fargo Bank, N.A., et al
LINE 6   110cv170046    C. Yando, et al vs. J. Lo,    Click on Line 6 for Ruling
                        M.D.
LINE 7   109cv150428    AFD China Intellectual     Click on Line 7 for Ruling
                        Property Law Office vs. L.
                        Wang
LINE 8   109cv158850    Jljr, et al vs. J. Ward, et al Continued to 9/15/11 by Stipulation and
                                                       Order
LINE 9   111cv196168    V. Grant vs. Area              Continued to 10/4/11
                        Developmental Disabilities
LINE 10 111cv204297     Bluelight Technology, Inc.    Motion to Dismiss by Defendant Jemoon
                        vs. J. Jeong, et al           Jeong----Parties to Appear
LINE 11 111cv205708     M. Imanian, et al vs. J.      Motion for Order to Release Mechanic’s
                        Parivash                      Lien---No Proof of Service----Dismissal filed
                                                      on 8/9/11
LINE 12 110cv161549     N. Herrera, et al vs.         Off Calendar
                        Countrywide KB Home
                        Loans
LINE 13 110cv168978     J. Liu, et al vs. Mountain    Off Calendar
                        View Imaging, et al
             SUPERIOR COURT, STATE OF CALIFORNIA
                   COUNTY OF SANTA CLARA
                      Department 8, Honorable Peter Kirwan
                              Ingrid Stewart, Courtroom Clerk
                             Melissa Crawford, Court Reporter
                         191 North First Street, San Jose, CA 95113
                                 Telephone: 408.882.2180
          To contest the ruling, call (408) 808-6856 before 4:00 P.M.

                   LAW AND MOTION TENTATIVE RULINGS
LINE 14 110cv189762    Hoge, Fenton Jones &       Off Calendar
                       Appel, Inc. vs. Garcia
                       Concrete Specialists, Inc.
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        Defendants Tam Quach, Steven Pham, Tuscany Realty, Inc., GD Commercial, Inc., and
Global Domain Finance, Inc.’s demurrer to the first cause of action in plaintiff Ngoc Quach’s
first amended complaint on the ground that the pleading does not state facts sufficient to
constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for illegal corporate loans
under Corp. Code §315 is SUSTAINED with 10 days’ leave to amend. Since plaintiff is
relying on statute, the court should apply “the general rule that statutory causes of action must
be pleaded with particularity.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771,
790.)

        Defendants John Hing-Wah Luk, Allen Dieu, Minh Tran Dang, Andrew N. Luu,
Nelson P. Nguyen, Sally Trang Nguyen, and Kim Ha Quach’s demurrer to the fifth cause of
action in plaintiff Ngoc Quach’s first amended complaint on the ground that the pleading does
not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for
civil conspiracy is SUSTAINED with 10 days’ leave to amend. “The elements of a civil
conspiracy are (1) the formation and operation of the conspiracy; (2) the wrongful act or acts
done pursuant thereto; and (3) the damage resulting.” (Mosier v. Southern California
Physicians Insurance Exchange (1998) 63 Cal.App.4th 1022, 1048; see also CACI, No. 3600.)
“The sine qua non of a conspiratorial agreement is the knowledge on the part of the alleged
conspirators of its unlawful objective and their intent to aid in achieving that objective.”
(Schick v. Lerner (1987) 193 Cal.App.3d 1321, 1328.) Plaintiff fails to allege knowledge the
demurring defendants had an unlawful objective and intent to aid in the achievement of that
objective.

        Defendants Tam Quach, Tammy Loan Tran, Kathleen Yuan, Julie Xuan Thao Quach,
GD Commercial Real Estate, Inc., and Tuscany Real Estate Services, Inc.’s demurrer to the
eighth cause of action in plaintiff Ngoc Quach’s first amended complaint on the ground that the
pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc.,
§430.10, subd. (e)] for resulting trust is MOOT in light of the dismissal.
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        The request for judicial notice in support of demurrer of Wells Fargo Bank, N.A. to
plaintiffs’ complaint is GRANTED. (See Evid. Code §452, subdivisions (c) and (h); see also
Evans v. California Trailer Court, Inc. (1994) 28 Cal.App.4th 540, 549.)

        Defendant Wells Fargo Bank, N.A.’s demurrer to the first cause of action in plaintiffs
Kwanghoi Koo and Kyungsun Park’s complaint on the ground that the pleading does not state
facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for
declaratory relief is OVERRULED.

         Defendant Wells Fargo Bank, N.A.’s demurrer to the second cause of action in
plaintiffs Kwanghoi Koo and Kyungsun Park’s complaint on the ground that the pleading does
not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for
quiet title is OVERRULED.

        Defendant Wells Fargo Bank, N.A.’s demurrer to the third cause of action in plaintiffs
Kwanghoi Koo and Kyungsun Park’s complaint on the ground that the pleading does not state
facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for
injunctive relief is OVERRULED.

        Defendant Wells Fargo Bank, N.A.’s demurrer to the ninth cause of action in plaintiffs
Kwanghoi Koo and Kyungsun Park’s complaint on the ground that the pleading does not state
facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for
equitable subrogation is OVERRULED.


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      Defendant Justin Lo, M.D.’s motion for summary judgment is DENIED.

        Defendant Justin Lo, M.D.’s alternative motion for summary adjudication of the first
and third causes of action is DENIED. After full consideration of the evidence, the separate
statements submitted by each party, the authorities submitted by each party, as well as oral
argument by each party, the court finds the existence of a triable issue of one or more material
facts. (See Defendant’s Separate Statement of Undisputed Material Facts in Support of Motion
for Summary Judgment, or in the Alternative, Summary Adjudication (“Dr. Lo’s UMF”), Issue
No. 1, Fact Nos. 6 – 7, Issue No. 2, Fact No. 9; see Exhibit 6 to the Declaration of William J.
Pardue in Opposition to Defendant’s Motion for Summary Judgment/ Summary Adjudication.)

        Defendant Justin Lo, M.D.’s alternative motion for summary adjudication of the second
cause of action is DENIED. After full consideration of the evidence, the separate statements
submitted by each party, the authorities submitted by each party, as well as oral argument by
each party, the court finds the existence of a triable issue of one or more material facts. (See
Defendant’s Separate Statement of Undisputed Material Facts in Support of Motion for
Summary Judgment, or in the Alternative, Summary Adjudication (“Dr. Lo’s UMF”), Issue
No. 3, Fact Nos. 3 – 4, Issue No. 4, Fact Nos. 1 – 2; see Exhibits 5 – 6 to the Declaration of
William J. Pardue in Opposition to Defendant’s Motion for Summary Judgment/ Summary
Adjudication.)



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        The request for judicial notice of the Complaints, Answer, and excerpts is GRANTED.
(Evid. Code, § 452, subds. (d), (f).) The request for judicial notice of the Motion to Dismiss is
DENIED as AFD China fails to provide a copy of the material. (See Rules of Court, rule
3.1306(c).)
        AFD China’s motion for summary judgment of the First Amended Cross-Complaint
(“FACC”) is DENIED. In the Beijing Suit, AFD China Intellectual Property Law (USA)
Office (“AFD USA”) alleged that AFD China breached the contract by unilaterally terminating
the agreement and sought anticipated profits, and the Civil Judgment held that AFD China’s
demand for termination of the cooperation on December 28, 2007 did not constitute breach of
contract. In contrast, here, AFD USA and cross-complainant Lynn Wang (collectively “Cross-
Complainants”) allege that the “harm suffered” are the fees from pending client cases which
AFD USA had transferred to AFD China that AFD USA could have transferred back to itself
and fees from any new cases the clients would have given to AFD USA but for AFD China’s
misrepresentations. (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 798.) These
issues were not litigated in the previous Beijing action. Thus, Cross-Complainant’s claim is
not barred by res judicata.
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