Superior Court, State of California



DATE: Thursday, 20 October 2022

TIME: 9:00 A.M.

Please note that for the indefinite future, all hearings will be conducted remotely as the Old Courthouse will be closed. This Department prefers that litigants use Zoom for Law and Motion and for Case Management Calendars. Please use the Zoom link below.

“A person's name is to him or her the sweetest and most important sound in any language.”—Dale Carnegie. All Courts of California celebrate the diversity of the attorneys and the litigants who appear in our Courts. Do not hesitate to correct the Court or Court Staff concerning the pronunciation of any name or how anyone prefers to be addressed. As this Court is fond of saying, “with a name like mine, I try to be careful how I pronounce the names of others.” Please inform the Court how you, or if your client is with you, you and your client prefer to be introduced. The Court encourages the use of diacritical marks, multiple surnames and the like for the names of attorneys, litigants and in court papers. You might also try but that site mispronounces my name.

You may use these links for Case Management Conferences and Trial Setting Conferences without Court permission. Informal Discovery Conferences and appearances on Ex Parte applications will be set on Order by the Court.

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Please Read This Page In Its Entirety As Some Of The Protocols Have Changed. Please Check This Tentative Rulings Page Before Making Any Appearance.

APPEARANCES.

Whether appearing in person or on a virtual platform, the usual custom and practices of decorum and attire apply. See Jensen v Superior Court (San Diego) 154 Cal.App.3d 533.

For new Rules of Court concerning remote hearings and appearances, please review California Rules of Court, rule 3.672.

This Court expects all counsel and litigants to comply with the Tentative Rulings Procedures that are outlined in Local Civil Rule 7(E) and California Rules of Court, rule 3.1308. If the Court has not directed argument, oral argument must be permitted only if a party notifies all other parties and the Court at (408) 808-6856 before 4:00 p.m. on the court day before the hearing of the party's intention to appear. A party must notify all other parties by telephone or in person. A failure to timely notify this Court and/or the opposing parties may result in the tentative ruling being the final order in the matter.

Please notify this Court immediately if the matter will not be heard on the scheduled date. California Rules of Court, rule 3.1304(b). If a party fails to appear at a law and motion hearing without having given notice, this Court may take the matter off calendar, to be reset only upon motion, or may rule on the matter. California Rules of Court, rule 3.1304(d). A party may give notice that he or she will not appear at a law and motion hearing and submit the matter without an appearance unless this Court orders otherwise. This Court will rule on the motion as if the party had appeared. California Rules of Court, rule 3.1304(c). Any uncontested matter or matters to which stipulations have been reached can be processed through the Clerk in the usual manner. Please include a proposed order.

All proposed orders and papers should be submitted to this Department’s e-filing queue. Do not send documents to the Department email unless directed to do so.

While the Court will still allow physical appearances, all litigants are encouraged to use the Zoom platform for Law & Motion appearances and Case Management Conferences. Use of other virtual platform devices will make it difficult for all parties fully to participate in the hearings. Please note the requirement of entering a password (highlighted above.) As for personal appearances, protocols concerning social distancing and facial coverings in compliance with the directives of the Public Health Officer will be enforced. Currently, facemasks are required in all courthouses. If you appear in person, it will be helpful if you wear a disposable paper mask while using the courtroom microphones so that your voice will not be muffled.

Individuals who wish to access the Courthouse are advised to bring a plastic bag within which to place any personal items that are to go through the metal detector located at the doorway to the courthouse.

Sign-ins will begin at about 8:30 AM. Court staff will assist you when you sign in. If you are using the Zoom virtual platform, it will helpful if you “rename” yourself as follows: in the upper right corner of the screen with your name you will see a blue box with three horizontal dots. Click on that and then click on the “rename” feature. You may type your name as: Line #/name/party. If you are a member of the public who wishes to view the Zoom session and remain anonymous, you may simply sign in as “Public.”

COURT REPORTERS.

This session will not be recorded. No electronic recordings, video, still photography or audio capture of this live stream is allowed without the expressed, written permission of the Superior Court of California, County of Santa Clara. State and Local Court rules prohibit photographing or recording of court proceedings whether in the courtroom or while listening on the Public Access Line or other virtual platform, without a Court Order. See Local General Rule 2(A) and 2(B); California Rules of Court, rule 1.150.

This Court no longer provides for Court Reporters in civil actions except in limited circumstances. If you wish to arrange for a court reporter, please use Local Form #CV-5100. All reporters are encouraged to work from a remote location. Please inform this Court if any reporter wishes to work in the courtroom. This Court will approve all requests to bring a court reporter. Counsel should meet and confer on the use of a court reporter so that only one reporter appears and serves as the official reporter for that hearing.

PROTOCOLS DURING THE HEARINGS.

During the calling of any hearing, this Court has found that the Zoom video platform works very well. But whether using Zoom or any telephone, it is preferable to use a landline if possible. IT IS ABSOLUTELY NECESSARY FOR ALL INDIVIDUALS TO SPEAK SLOWLY. Plaintiff should speak first, followed by any other person. All persons should spell their names for the benefit of Court Staff. Please do not use any hands-free mode if at all possible. Headsets or earbuds of good quality will be of great assistance to minimize feedback and distortion.

The Court will prepare the Final Order unless stated otherwise below or at the hearing. Counsel are to comply with California Rules of Court, rule 3.1312.

TROUBLESHOOTING TENTATIVE RULINGS.

To access a tentative ruling, move your cursor over the line number, hold down the “Control” key and click. If you see last week’s tentative rulings, you have checked prior to the posting of the current week’s tentative rulings. You will need to either “REFRESH” or “QUIT” your browser and reopen it. Another suggestion is to “clean the cache” of your browser. Finally, you may have to switch browsers. If you fail to do any of these, your browser may pull up old information from old cookies even after the tentative rulings have been posted.

This Court's tentative ruling is just that—tentative. Trial courts are not bound by their tentative rulings, which are superseded by the final order. (See Faulkinbury v. Boyd & Associates, Inc. (2010) 185 Cal.App.4th 1363, 1374-1375.) The tentative ruling allows a party to focus his or her arguments at a subsequent hearing and to attempt to convince the Court the tentative should or should not become the Court's final order. (Cowan v. Krayzman (2011) 196 Cal.App.4th 907, 917.) If you wish to challenge a tentative ruling, please refer to a specific portion of the tentative ruling to which you disagree.

|LINE # |CASE # |CASE TITLE |TENTATIVE RULING |

|LINE 1 |20CV361905 |Princeton University v. John Nguyen |Order of Examination of John Nguyen. |

| | | |There does not appear to be a proof of service in the file. |

| | | |Unless the parties agree otherwise, both parties are to appear in |

| | | |Department 20 at 9:00 AM via the Zoom virtual platform. The |

| | | |appropriate oath will be administered by the Court and the parties may|

| | | |conduct the examination off-line and report back to the Court. The |

| | | |parties may meet and confer on how to conduct the examination |

| | | |remotely. |

| | | |NO FORMAL TENTATIVE RULING. |

|LINE 2 |21CV385675 |Michelle Santos v. Amandeep Singh; Bohr S. Bhandal |Order of Examination of Amandeep Singh. |

| | | |At the last hearing of 25 August 2022, the judgment debtor did not |

| | | |appear. A civil bench warrant in the amount of $500.00 and an Order |

| | | |to Show Cause has been issued for the nonappearance of Amandeep Singh.|

| | | |On 05 October 2022 the Clerk of the Court notified the judgment |

| | | |creditor that CiviI Bench Warrant Document cannot be filed via e-filed|

| | | |and asked that the matter be resubmitted over the counter or via mail.|

| | | |There is no other proof of service. |

| | | |Judgment creditor should appear and inform the Court whether the |

| | | |matter should be continued or placed off calendar without prejudice. |

| | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 3 |22CV395033 |Rose Court, LLC; Teri Ha Nguyen v. ‘s U.S. Bank, N.A.;|Motion Of Defendant J.P. Morgan Chase Bank N.A. For Judgment on the |

| | |Quality Loan Service Corporation; Select Portfolio |Pleadings to Plaintiff’s First Cause of Action. |

| | |Servicing, Inc. |OFF CALENDAR per Erika from Attorney Ammons’ office. |

|LINE 4 |22CV399500 |VCBLA Nido, LLC v. Arch Insurance Company |Demurrer of Defendant Arch Insurance Company to Plaintiff’s Complaint.|

| | | |Due to the untimely service of the demurrer, the hearing on the |

| | | |demurrer of defendant ArchInsurance Company to plaintiff VCBLA’s |

| | | |complaint is hereby continued to 10 November 2022 at 9:00 am in this |

| | | |Department. Any additional papers are to be served per Code. |

| | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 5 |22CV399775 |Ryan Driggs v. Santa Clara University |Demurrer of Defendant Santa Clara University to Plaintiff’s Complaint.|

| | | | |

| | | |Recusal filed. The matter will be referred to the Calendar Secretary |

| | | |for reassignment. The party should contact this Department prior to |

| | | |appearing. |

|LINE 6 |22CV399775 |Ryan Driggs v. Santa Clara University |Petition of Gregory F. Laufer, Esq. To Appear Pro Hac Vice for |

| | | |defendant Santa Clara University. |

| | | |Recusal filed. The matter will be referred to the Calendar Secretary |

| | | |for reassignment. The party should contact this Department prior to |

| | | |appearing. |

|LINE 7 |22CV399775 |Ryan Driggs v. Santa Clara University |Petition of Liza M. Velázquez, Esq. To Appear Pro Hac Vice for |

| | | |defendant Santa Clara University. |

| | | |Recusal filed. The matter will be referred to the Calendar Secretary |

| | | |for reassignment. The party should contact this Department prior to |

| | | |appearing. So are you doing |

|LINE 8 |21CV388845 |John Doe; John Doe 2 v. Los Gatos Union School |Motion of Defendant Los Gatos Union School District for Summary |

| | |District |Adjudication/Summary Judgment. |

| | | |OFF CALENDAR per Erika from Attorney Ammons. Notice of settlement |

| | | |filed. |

|LINE 9 |21CV392871 |Brian Quinn v. Patricia Novak |Motion of Plaintiff to Compel Defendant to Provide Further Answers to |

| | | |Form and Special Interrogatories. |

| | | |It seems that there is an issue concerning the delay of the Clerk in |

| | | |assigning a motion date for the hearing of this matter. In reply |

| | | |papers, moving party plaintiff states that if the Clerk did not |

| | | |continue the matter, he would ask the Court to do so at the hearing. |

| | | |NO FORMAL TENTATIVE RULING. |

|LINE 10 |2015-1-CV287708 |Kevin Le; Kristopher T. Le v. Hiep X. Pham |Motion of Plaintiffs to Declare Defendant to Be a Vexatious Litigant. |

| | | | |

| | | |The motion is GRANTED for the reasons stated by plaintiffs in their |

| | | |moving and reply papers. This Court will issue and order declaring |

| | | |defendant Hiep X. Pham to be a vexatious litigant pursuant to Code of |

| | | |Civil Procedure section 391 et seq. This court will further require |

| | | |Hiep X. Pham to obtain a pre-filing order from the Presiding Judge for|

| | | |a can file any new or additional papers arising out of or related to |

| | | |this action. |

| | | |NO FORMAL TENTATIVE RULING. |

|LINE 11 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 12 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 13 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 14 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 15 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 16 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 17 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 18 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 19 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 20 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 21 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 22 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 23 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 24 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 25 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 26 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 27 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 28 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 29 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 30 | | |SEE ATTACHED TENTATIVE RULING. |

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|SUPERIOR COURT, STATE OF CALIFORNIA | |

|COUNTY OF SANTA CLARA | |

| | |

|DEPARTMENT 20 | |

| | |

|161 North First Street, San Jose, CA 95113 | |

|408.882.2320 · 408.882.2296 (fax) | |

|smanoukian@ | |

| |(For Clerk's Use Only) |

|CASE NO.: |22CV399500 |VCBLA Nido, LLC v. Arch Insurance Company, et al. |

|DATE: 20 October 2022 |TIME: 9:00 am |LINE NUMBER: 04 |

|This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 20 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. |

|Any party opposing the tentative ruling must call Department 20 at 408.808.6856 and the opposing party no later than 4:00 PM on 19 October 2022. Please specify |

|the issue to be contested when calling the Court and Counsel. |

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|Order on Arch Insurance Company’s Demurrer |

|to VCBLA Nido, LLC’s Complaint. |

I. Statement of Facts.

Plaintiff VCBLA Nido, LLC (“VCBLA”) is the owner of real property and improvements located at 16505 Monterey Road in Morgan Hill (“Subject Property”). (Complaint, ¶1.)

Voices College Bound Language Academies (“Voices”) operates five public charter schools providing a rigorous college prep transitional kindergarten through eighth grade program that teaches students English and Spanish and builds on core elements of their identities. (Complaint, ¶5.) Voices’ mission includes preparing students for the challenges of higher education through the context of an academically rigorous dual-language program. (Id.) Voices undertook to develop the Subject Property, its Morgan Hill campus, through construction of a state-of-the-art school facility (“Project”). (Id.)

Plaintiff VCBLA was organized for purposes of developing the Project. (Complaint, ¶6.) Plaintiff VCBLA arranged financing partners, hired consultants and design professionals, retained a construction manager, and began the Project development. (Complaint, ¶7.) As part of the development, a unique modular building system was selected and designed for the Project which met the Project’s needs and budget. (Id.) The modular building system would be designed, manufactured, and installed by Intermodal Structures, Inc. dba iMod Structures (“iMod”). (Id.)

Plaintiff VCBLA entered into a contract with iMod in August 2020 for the contract price of $8,740,413 (“iMod Contract”). (Id.) The iMod Contract provided Substantial Completion would be achieved by 29 July 2021 with the expectation that the Project would be ready for students in the Fall of 2022. (Id.)

The iMod Contract included a requirement that iMod provide a payment and performance bond to assure plaintiff VCBLA that its Project would be fully and completely performed. (Complaint, ¶9.) Defendant Arch Insurance Company (“Arch”) issued the performance and payment bond on or about 7 October 2020, in the principal amount of $8,740,413. (Id.) The performance bond provided that it covered, among other things, “additional legal, design professional and delay costs resulting from Contractor’s default [and] resulting from actions or failure to act of the Surety under Section 5,” to “correct defective work,” to “Complete Construction Contract” and “liquidated damages” or if no liquidated damages, “actual damages caused by delayed performance or non-performance of Contractor.” (Complaint, ¶10.)

In the Spring of 2021, iMod declared bankruptcy and iMod’s CEO provided notice to plaintiff VCBLA on 10 May 2021 that iMod was in default under the contract and unable to perform its obligations. (Complaint, ¶13.) Plaintiff VCBLA gave notice of a claim on the Performance Bond to defendant Arch on 14 May 2021 and declared iMod in default and affirmed the unpaid balance of the underlying construction contract is dedicated to completion of the Project for which the bond was issued, to surety or the contractor selected to perform under the Construction Contract. (Id.)

On 14 May 2021, defendant Arch responded via retained counsel, advised it was investigating the claim, and requested substantial documentation. (Complaint, ¶14.)

By September 2021, plaintiff VCBLA, through counsel, had provided substantial documentation and set out its then current statement of the damages related to iMod’s default, totaling over $7.2 million. (Complaint, ¶15.) A month later, defendant Arch asserted that nearly all of the damages claimed by plaintiff VCBLA are not recoverable under the Performance Bond and, through a confidential settlement offer, offered plaintiff VCBLA less than half of its damages. (Id.)

On 17 November 2021, plaintiff VCBLA’s counsel provided a thorough response to defendant Arch’s offer including citation to legal authority as to defendant Arch’s responsibility under the Performance Bond and provided additional details and documentation demonstrating plaintiff VCBLA’s damages were now over $9 million. (Id.) Defendant Arch did not respond. (Complaint, ¶16.)

On 31 January 2022, plaintiff VCBLA again contacted defendant Arch and demanded defendant Arch perform under the Performance Bond. (Id.)

On 15 February 2022, defendant Arch tendered a check to plaintiff VCBLA in the amount of $2,794,435, inexplicably less than its previous offer. (Complaint, ¶17.) The letter was silent as to whether defendant Arch considered this a partial payment or that Voices could accept the check without waiving any rights against defendant Arch and the Performance Bond. (Id.) Subsequently, plaintiff VCBLA requested defendant Arch confirm that plaintiff VCBLA’s acceptance of the check (as a partial payment on its claim) would not act as any type of waiver or release of plaintiff VCBLA’s rights. (Id.) Defendant Arch refused to make such confirmation. (Id.) As a result, plaintiff VCBLA was forced to return the check to defendant Arch which it did in May 2022. (Id.)

On 8 June 2022[1], plaintiff VCBLA filed a complaint against defendant Arch asserting causes of action for:

1) Breach of Contract

2) Breach of Implied Covenant of Good Faith and Fair Dealing

3) Intentional Misrepresentation

4) Negligent Misrepresentation

5) Declaratory Relief

On 11 August 2022, defendant Arch filed the motion now before the court, a demurrer to plaintiff VCBLA’s complaint.

II. Analysis.

A. Insufficient notice.

Santa Clara County Superior Court, Local Civil Rule 8(C) states:

A party seeking a law and motion hearing date must file and serve all of the moving papers as soon as complete, and leave the hearing date blank on the moving papers. The clerk will review and either reject or accept them for filing. If the motion is accepted, the calendar clerk will schedule the motion for hearing with enough lead time to allow for proper statutory notice of the hearing, and list the hearing date on the Odyssey website. The calendar clerk will not contact the moving party to notify them of the hearing date. The moving party must frequently review the website, and as soon as the hearing has been calendared, the moving party must file and serve an amended notice of hearing with the hearing date. It is not necessary to refile all moving papers if they were properly served when originally filed. Failure to file and serve an amended notice of motion with sufficient statutory notice will either lead to a continuance of the motion or the motion being ordered off calendar by the Court. Parties are advised that this process takes time, and motions that are submitted too close to the trial date to permit sufficient notice may be rejected. Parties and counsel must not contact the Clerk’s Office or any courtroom clerk to inquire of the status.

As a preliminary matter, plaintiff VCBLA contends it did not receive sufficient statutory notice of the amended hearing date for defendant Arch’s demurrer. Although defendant Arch initially filed and served (by U.S. mail and electronically) plaintiff VCBLA with the instant motion on 11 August 2022, defendant Arch did not serve (by U.S. mail and electronically) an amended notice of the instant motion until 5 October 2022, fifteen calendar days before the scheduled hearing date of 20 October 2022.

“A party filing a demurrer must serve and file therewith a notice of hearing that must specify a hearing date in accordance with the provisions of Code of Civil Procedure section 1005.” (Cal. Rules of Court, rule 3.1320, subdivision (c).) Pursuant to Code of Civil Procedure section 1005, subdivision (b), “Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing.”

Local Civil Rule 8(C) was revised in light of the reduction in court services due to Covid-19. The court continues to struggle with reduced services. As a result, the court clerk strives to comply with Local Civil Rule 8(C)’s mandate of “schedul[ing] the motion for hearing with enough lead time to allow for proper statutory notice of the hearing,” but is not always able to do so. Consequently, the blame for defendant’s failure to serve amended notice with sufficient statutory notice lies with the court.

Absent the parties’ express consent to a shortened notice period or plaintiff VCBLA’s waiver of the statutory notice period, the court cannot proceed to hear defendant Arch’s demurrer at this time. Hearing on the defendant Arch’s demurrer to plaintiff VCBLA’s complaint is hereby continued to 10 November 2022 at 9:00 am in this Department.

III. Order.

Hearing on the defendant Arch’s demurrer to plaintiff VCBLA’s complaint is hereby continued to 10 November 2022 at 9:00 am in this Department. Any additional papers are to be served per Code.

|___________________________ |______________________________________________ |

|DATED: |HON. SOCRATES PETER MANOUKIAN |

| |Judge of the Superior Court |

| |County of Santa Clara |

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[1] This Department intends to comply with the time requirements of the Trial Court Delay Reduction Act (Government Code, §§ 68600–68620). The California Rules of Court state that the goal of each trial court should be to manage limited and unlimited civil cases from filing so that 100 percent are disposed of within 24 months. (Ca. St. Civil Rules of Court, Rule 3.714(b)(1)(C) and (b)(2)(C).)

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