Superior Court, State of California



DATE: Thursday, 6 May 2021

TIME: 9:00 A.M.

This Department prefers that litigants use Zoom for Law and Motion and for Case Management Calendars.

CourtCall is also acceptable.

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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.” If your client is with you, please inform the Court how your client would 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.

VIRTUAL ACCESS INTO THE COURTHOUSE WITH THE “ZOOM” VIRTUAL PLATFORM.

PLEASE READ THIS PAGE IN ITS ENTIRETY AS SOME OF THE PROTOCOLS HAVE CHANGED.

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.)

SOCIAL DISTANCING PROTOCOLS

In light of COVID-19-related health concerns and due to the Order of the Public Health Department, Department 20 has resumed Law & Motion calendars but with safe-distancing protocols. Please check this tentative rulings page before making any appearance. 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.

Appearances.

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).

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 by 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.

Entry into the Courthouse.

As for matters which require personal appearances, protocols concerning social distancing and facial coverings in compliance with the directives of the Public Health Officer will be enforced.

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. It will help 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.”

The Santa Clara County Superior Court has established listen-only telephone Lines to allow remote access to public court proceedings. To listen to a public court proceeding in Department 20, you may dial 888-251-2909. When prompted, enter the access code number 4362730 when prompted, followed by the pound or hashtag (#) sign.

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.

Counsel should meet and confer on the use of a court reporter. Occasionally each side will retain a court reporter which leaves this Court in a conundrum as to which reporter will be the official reporter for the purposes of the 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 will be of great assistance to minimize feedback.

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.

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).

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.

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. 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.

Tentative Rulings Are Continued Below. Full Orders Are On The Following Pages.

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

|LINE 1 |18CV328483 |Satish Kuppachi v. Nataraj Adike |ORDER OF EXAMINATION. The matter was continued from 25 March 2021. |

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

| | | |Department 20 at 9:00 AM. Social Distancing Protocols will be in |

| | | |effect, including the use of appropriate facial masks. |

| | | |As an alternative to appearing in Department 20, the parties are |

| | | |strongly urged to appear virtually whereby 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 (e.g., |

| | | |Zoom, conference call, etc.) on a different day. The Court will set a|

| | | |return date to make sure the OEX was completed. |

|LINE 2 |19CV353508 |Channel Partners Capital, LLC v. Jihad Jaber |ORDER OF EXAMINATION. The matter was continued from 25 March 2021. |

| | | |At that time, there was no appearance. |

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

| | | |Department 20 at 9:00 AM. Social Distancing Protocols will be in |

| | | |effect, including the use of appropriate facial masks. |

| | | |As an alternative to appearing in Department 20, the parties are |

| | | |strongly urged to appear virtually whereby 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 (e.g., |

| | | |Zoom, conference call, etc.) on a different day. The Court will set a|

| | | |return date to make sure the OEX was completed. |

| | | |Should there be no appearance or use of the tentative ruling protocol,|

| | | |the matter will be placed OFF CALENDAR. |

|LINE 3 |19CV357031 |Chun Lu v. Rabindra Chakraborty |ORDER OF EXAMINATION. The matter was continued from 25 March 2021. |

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

| | | |Department 20 at 9:00 AM. Social Distancing Protocols will be in |

| | | |effect, including the use of appropriate facial masks. |

| | | |As an alternative to appearing in Department 20, the parties are |

| | | |strongly urged to appear virtually whereby 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 (e.g., |

| | | |Zoom, conference call, etc.) on a different day. The Court will set a|

| | | |return date to make sure the OEX was completed. |

|LINE 4 |20CV374000 |AMPRO Systems, Inc. et al. v. Xian Le |Defendants James Li and Laura Li’s demurrer to Plaintiffs’ complaint |

| | | |on the ground that the pleading does not state facts sufficient to |

| | | |constitute a cause of action [Code of Civil Procedure, § 430.10, subd.|

| | | |(e)] to recover assets pursuant to Corporations Code section 2011 is |

| | | |OVERRULED but WITHOUT PREJUDICE to a motion for judgment on the |

| | | |pleadings. Defendants shall have 20 days from the filing and service |

| | | |of this order within which to ANSWER. |

| | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 5 |20CV370336 |Department Stores National Bank v. Marcy L. Mayer |SEE ATTACHED TENTATIVE RULING. |

|LINE 6 |19CV352799 |Pace Funding Group LLC v. Norbertas Sinica et al. |The motion of A. Maria Plumtree, Esq. and Plumtree & Associates to be |

| | | |relieved as counsel for defendant Norbertas Sinica is GRANTED. This |

| | | |Court will sign the proposed order. |

| | | |This Court notes that several other similar motions had been |

| | | |previously calendared for today but the matter involving Mr. Sinica is|

| | | |the only one on calendar. |

| | | |This Court notes that A. Maria Plumtree, Esq. and Plumtree & |

| | | |Associates have substituted out of representing defendant Eco |

| | | |Technology, Inc., Josef Alan Ruiz, and defendant Marija Popov. James |

| | | |John Orland, Esq. is substituting in as counsel of record. |

| | | |Counsel should use the tentative ruling protocol to advise this Court |

| | | |of any discrepancy in the foregoing. |

|LINE 7 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 8 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 9 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 10 | | |SEE ATTACHED 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. |

| | | |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.: | | |

|DATE: 6 May 2021 |TIME: 9:00 am |LINE NUMBER: |

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 5 May 2021. Please specify the issue to be contested when calling the Court and Counsel.

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Order on Demurrer of Defendants James Li and Laura Li to Plaintiff’s Complaint.

I. Statement of Facts.

On 24 February 2020, this Court entered a judgment of $512,312.26 in favor of plaintiffs Ampro Systems, Inc. (“Ampro”) and Consolitech Electronics, Inc. (“Consolitech”) (collectively, Ampro and Consolitech are hereafter referred to as “Plaintiffs” or “Judgment Creditors”) and against defendant LXRZ, Inc. (“LXRZ”) in the case of Ampro Systems, Inc. et al. v. Da Guan et al., case number 17CV311868 (“Underlying Action”). (Complaint, ¶9.)

On 13 August 2020, this Court entered an amended judgment of $327,879.85 in favor of Judgment Creditors and against defendant LXRZ. (Complaint, ¶10.) The Court also awarded Judgment Creditors costs in the amount of $71,110.04 against defendant Xian Li also known as James Li (“Mr. Li”), Ruo Ruo Li also known as Laura Li (“Ms. Li”), Xiao Rong Zhou, and LXRZ increasing the judgment against LXRZ to $345,657.36 (“Judgment”). (Id.)

On information and belief, LXRZ, through its agents Mr. Li and Ms. Li and others at their direction, have taken actions since at least February 2016 and prior to its 26 December 2018 dissolution to prevent Judgment Creditors from collecting the Judgment, including distributing assets to Mr. Li, Ms. Li, and others. (Complaint, ¶11.)

On information and belief, Mr. Li, Ms. Li, and others are, or were, shareholders/ investors of LXRZ and received a distribution of assets in connection with the winding up and/or dissolution of LXRZ. (Complaint, ¶13.) Distributions were made without prior payment or adequate provision for payment of any of LXRZ’s potential and/or actual debts and liabilities, including liabilities arising from the claims resulting in the Judgment. (Id.) Plaintiffs seek to amend the Judgment to reflect defendants are responsible for LXRZ’s Judgment to the extent each received said assets. (Complaint, ¶15.)

On 24 November 2020[1], Plaintiffs filed a complaint against defendants LXRZ, Mr. Li, and Ms. Li asserting a single cause of action entitled, “Action to Recover Assets Pursuant to Cal. Corp. Code §2011.”

On 4 March 2021, defendants Mr. Li and Ms. Li filed the motion now before the Court, a demurrer to Plaintiffs’ complaint.

II. Demurrers In General.

A complaint must contain substantive factual allegations sufficiently apprising the defendant of the issues to be addressed. (See Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1144[2]; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2 (demurrers for uncertainty.)

Code of Civil Procedure, § 430.10(e) states “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:. . . . .The pleading does not state facts sufficient to constitute a cause of action.”

Code of Civil Procedure, § 430.20(a) states: “A party against whom an answer has been filed may object, by demurrer as provided in Section 430.30, to the answer upon any one or more of the following grounds: The answer does not state facts sufficient to constitute a defense.)

A demurrer tests the legal sufficiency of a complaint. It serves to test the sufficiency of a pleading by raising questions of law. (Buford v. State of California (1980) 104 Cal.App.3d 811, 818.) While a demurrer admits all material facts that were properly plead, a demurrer does not assume the truth of the contentions, deductions or conclusions of facts or law. (Levya v. Nielson (2000) 83 Cal.App.4th 1061, 1063.[3])

“It is not the ordinary function of a demurrer to test the truth of the plaintiff's allegations or the accuracy with which he describes the defendant's conduct. A demurrer tests only the legal sufficiency of the pleading. (Whitcombe v. County of Yolo (1977) 73 Cal.App.3d 698, 702.) It ‘admits the truth of all material factual allegations in the complaint . . .; the question of plaintiff's ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing Court.” (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214.)

Even though the complaint is in some respects uncertain, the Courts often hold it good against demurrer on the theory that, athough not a model of pleading, “its allegations, liberally construed, are sufficient to apprise the defendant of the issues that he is to meet.” (See Krieger v. Feeny (1910) 14 Cal.App. 538, 544.) The objection that the complaint (or some part of it) is uncertain goes to a doubt as to what the plaintiff means by the facts he or she has alleged, and it is designed to require the pleader to clarify the doubtful part by more explicit averments.

A demurrer is properly sustained where the complaint or an individual cause of action fails to "state facts sufficient to constitute a cause of action." (Code of Civil Procedure, § 430.10(e).) "Conclusionary allegations . . . without facts to support them" are insufficient on demurrer.” (Ankeny v. Lockheed Missiles and Space Co. (1979) 88 Cal.App.3d 531, 537.) “It is fundamental that a demurrer is an attack against the complaint on its face, it should not be sustained unless the complaint shows that the action may not be pursued.” (Yolo County Dept. of Social Services v. Municipal Court (1980) 107 Cal.App.3d 842, 846-847.)

“In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed.’” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

“It is not the ordinary function of a demurrer to test the truth of the plaintiff's allegations or the accuracy with which he describes the defendant's conduct. A demurrer tests only the legal sufficiency of the pleading. (Whitcombe v. County of Yolo (1977) 73 Cal.App.3d 698, 702.) It ‘admits the truth of all material factual allegations in the complaint . . .; the question of plaintiff's ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing Court.” (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214; see Cook v. De La Guerra (1864) 24 Cal. 237, 239: “[I]t is not the office of a demurrer to state facts, but to raise an issue of law upon the facts stated in the pleading demurred to.”)

“The reviewing Court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. The Court does not, however, assume the truth of contentions, deductions or conclusions of law. … [I]t is error for a trial Court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.” (Gregory v. Albertson’s, Inc. (2002) 104 Cal.App.4th 845, 850.)

III. Analysis.

A. Defendants Mr. Li and Ms. Li’s demurrer to Plaintiffs’ complaint is OVERRULED.

Corporations Code, § 2011, subdivision (a)(1) states:

Causes of action against a dissolved corporation, whether arising before or after the dissolution of the corporation, may be enforced against any of the following:

(A) Against the dissolved corporation, to the extent of its undistributed assets, including, without limitation, any insurance assets held by the corporation that may be available to satisfy claims.

(B) If any of the assets of the dissolved corporation have been distributed to shareholders, against shareholders of the dissolved corporation to the extent of their pro rata share of the claim or to the extent of the corporate assets distributed to them upon dissolution of the corporation, whichever is less.

A shareholder’s total liability under this section may not exceed the total amount of assets of the dissolved corporation distributed to the shareholder upon dissolution of the corporation.

Defendants Mr. Li and Ms. Li contend Corporations Code, § 2011 does not create an independent cause of action and, instead, allows plaintiffs to pursue shareholders of a dissolved corporation who have received a distribution of the dissolved corporation’s assets for causes of action which would have otherwise existed against the dissolved corporation. However, since the present complaint asserts no causes of action against the dissolved corporation, LXRZ, defendants Mr. Li and Ms. Li contend Plaintiffs have not set forth any basis for recovery pursuant to Corporations Code, § 2011.

In opposition, Plaintiffs contend defendants’ interpretation “flies in the face of the plain language of” Corporations Code, § 2011. This Court disagrees. On its face, Corporations Code, § 2011, subdivision (a)(1) states, “Causes of action against a dissolved corporation … may be enforced … against shareholders of the dissolved corporation… .” The plain terms of the statue require the existence of some “cause(s) of action against a dissolved corporation” in order for the statute to apply. Thus, the Court would agree with defendants that this cause of action does not exist in a vacuum. However, by referencing the Underlying Action and alleging Plaintiffs obtained a judgment against LXRZ in that Underlying Action, the Court can necessarily infer some cause of action existed against LXRZ.

Defendants argue, alternatively, that the cause of action pursuant to Corporations Code, § 2011 falls outside the statute of limitations.

Except as set forth in subdivision (c), all causes of action against a shareholder of a dissolved corporation arising under this section are extinguished unless the claimant commences a proceeding to enforce the cause of action against that shareholder of a dissolved corporation prior to the earlier of the following:

(A) The expiration of the statute of limitations applicable to the cause of action.

(B) Four years after the effective date of the dissolution of the corporation.

(Corporations Code, § 2011, subd. (a)(2).)

“Where the complaint discloses on its face that the statute of limitations has run on the causes of action stated in the complaint, it fails to state facts sufficient to constitute a cause of action.” (ABF Capital Corp. v. Berglass (2005) 130 Cal.App.4th 825, 833.)

However, “[t]he running of the statute must appear ‘clearly and affirmatively’ from the dates alleged. It is not sufficient that the complaint might be barred. If the dates establishing the running of the statute of limitations do not clearly appear in the complaint, there is no ground for general demurrer. The proper remedy ‘is to ascertain the factual basis of the contention through discovery and, if necessary, file a motion for summary judgment.’” (Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 324-325; internal citations omitted.)

Here, however, defendants do not point to anything from the face of the complaint which would establish that the statute of limitations has run or that the cause of action has been otherwise extinguished. Plaintiffs allege dissolution of LXRZ on 26 December 2018 (see Complaint, ¶11) and this action was commenced 24 November 2020, within four years.

Accordingly, defendants James Li and Laura Li’s demurrer to Plaintiffs’ complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code of Civil Procedure, § 430.10, subd. (e)] to recover assets pursuant to Corporations Code, § 2011 is OVERRULED.

IV. Tentative Ruling and Hearing.

The tentative ruling in this matter was duly posted.

V. Case Management.

This Court will select the new Case Management Conference date of 14 September 2021 and 10:00 AM in Department 20. The parties should commence discovery and formulate and plan for alternate dispute resolution.

VI. Conclusion and Order.

Defendants James Li and Laura Li’s demurrer to Plaintiffs’ complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code of Civil Procedure, § 430.10, subd. (e)] to recover assets pursuant to Corporations Code section 2011 is OVERRULED but WITHOUT PREJUDICE to a motion for judgment on the pleadings. Defendants shall have 20 days from the filing and service of this order within which to ANSWER.

|____________________________________ |_________________________________________________________ |

|DATED: |HON. SOCRATES PETER MANOUKIAN |

| |Judge of the Superior Court |

| |County of Santa Clara |

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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.: |20CV370336 |Department Stores National Bank v. Marcy L. Mayer |

|DATE: 6 May 2021 |TIME: 9:00 am |LINE NUMBER: 5 |

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 5 May 2021. Please specify the issue to be contested when calling the Court and Counsel.

Order On Motion of Plaintiff to

Deem Requests for Admissions to be Admitted.

I. Statement of Facts.

Plaintiff filed this complaint on 4 September 2020.[4]

Plaintiff is a National Banking Association organized and existing under and by virtue of the laws of United States of America.

The complaint pleads a single cause of action for common counts for money lent by plaintiff to defendant at defendant’s request. Plaintiff also alleges that it is the current owner of this Macy’s branded credit account and all rights to pursue collection from defendant. Plaintiff seeks the sum of $6,734.75.

With the assistance of counsel, defendant answered the complaint on 26 October 2020.

II. Motion To Deem Requests for Admissions to be Admitted.

On 28 October 2020, plaintiff served upon defendant its set of requests for admissions. Responses would have been due on or about 2 December 2020. On or about 22 December 2020, plaintiff sent a follow-up letter to defendant without result.

This current motion was filed on 17 February 2021. No opposition papers have been filed.

Plaintiff submits this motion without an appearance.[5]

III. Analysis.

A. Service of Requests for Admissions.

The rules and procedures governing requests for admissions is set forth in Code of Civil Procedure, § 2033.010 et seq. The primary purpose of RFAs is to set at rest triable issues so that they will not have to be tried, and the trial may be expedited. (Orange County Water District. v. The Arnold Eng. Co. (2018) 31 Cal App.5th 96, 115). RFAs may be served at any time during the lawsuit with a few exceptions including: (1) the first 10 days after service of summons or defendant’s appearance in the action (whichever is first); and (2) cutoff on discovery before trial (Code of Civil Procedure, § 2033.20). RFAs may be served on any other party to the action (Code of Civil Procedure, 2033.010). Instead of responding to the RFAs, the party whom was served may promptly move for a protective order (Code of Civil Procedure, § 2033.080).

B. Responses to Requests for Admissions.

The time limit for responding to Requests for Admissions (“RFAs”) is 30 days from the date the RFAs were served. (Code of Civil Procedure, § 2033.250). The Court has the power to extend or shorten the time allowed for response. Id. Additionally, the parties may agree to extend the time allowed to respond to some or all of the RFAs, but it must be confirmed in writing. (Code of Civil Procedure, § 2033.260.) The response to the RFAS must contain either an answer or an objection to the particular RFA (Code of Civil Procedure, § 2033.210(b).) If there is no objection to a particular RFA, the response must be one of the following: (1) an admission; (2) a denial; or (3) a statement claiming an inability to admit or deny. (Code of Civil Procedure, § 2033.220(b).)

C. Waiver of Privilege if not Timely.

Failure to timely respond to RFAs results in a waiver of all objections to the requests, including claims of privilege or work product protection (Code of Civil Procedure, § 2033.280(a).) The court may relieve a party who fails to file a timely response before ordering the matters to be “deemed admitted” if the court finds: (1) the party failed to serve timely responses due to mistake, inadvertence or excusable neglect; and (2) the party has subsequently served a response with is substantially compliant. (Code of Civil Procedure, § 2033.280(a).)

Relief may even be granted by the court if no responses were served. (Wilcox v. Birtwhistle (1999) 21 Cal.App.4th 973, 983). Once the court orders the RFAs “deemed admitted” the party in default may file a motion to withdraw the deemed admission (Code of Civil Procedure, § 2033.300).

D. Motion to Deem RFAs to Be Admitted.

Code of Civil Procedure, § 2033.280(a) provides that if a party to whom requests for admissions have been directed fails to serve a timely response, that party thereby waives any objection to the requests, including one based on privilege or on the protection for work product under Code of Civil Procedure, § 2018.010 et seq.

Code of Civil Procedure, § 2033.280(b) provides that the requesting party may move for an order that the truth of any facts specified in the requests be deemed admitted. The Court shall make this order unless it finds that the party to whom the requests for admission have been direct and has served, before the hearing on the motion, a proposed response to the request for admissions that is in substantial compliance with Code of Civil Procedure, §§ Sections 2033.210, 2033.220, and 2033.230. (Code of Civil Procedure, § 2033.280(c).)

Failing to timely respond to RFAs does not result in automatic admissions. The propounder of the RFAs must move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted. (Code of Civil Procedure, § 2033.280(b).) There is no time limit on a motion to have matters deemed admitted, however if the motion is delayed too long, the responding party may object or seek a protective order. (Brigante v. Huang (1993) 20 Cal.App.4th 1569, 1584).

There are no specific timing restrictions in Code of Civil Procedure, § 2033.280(b) for the bringing of a motion deeming matters admitted, unlike the 45-day limitation for compelling further responses under Code of Civil Procedure, § 2033.290.

Generally a party must make a reasonable and good faith attempt at an informal resolution of any discovery dispute before bringing a motion to compel responses. However, this provision does not apply if the propounding party has received no responses whatsoever to the discovery requests. (Leach v. Superior Court of Shasta County (1980) 111 Cal.App.3d 902, 905-906.

E. Effect of Serving Responses.

The Court shall grant the motion unless it finds that the party to whom the requests for admissions have been directed has served, before the hearing on the motion, a proposed response in substantial compliance with Code of Civil Procedure, § 2033.220. (See Code of Civil Procedure, § 2033.280(c); St. Mary v. Superior Court (Schellenberger) (2014) 223 Cal.App.4th 762, 778; see Weil & Brown, California Practice Guide, Civil Procedure before Trial, § 8:1374 (2019).)

As of this date, defendant has not served any responses.

F. Conclusion.

The motion is GRANTED.

IV. Tentative Ruling.

The tentative ruling in this matter was duly posted.

V. Case Management.

The matter is calendared for a court trial on 23 August 2021.

VI. Conclusion and Order.

The motion of plaintiff to deem the requests for admissions to be admitted is GRANTED.

|_____________________________________ |__________________________________________________________ |

|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).

[2] “It is black-letter law a demurrer tests the pleading alone. (5 Witkin, California Procedure (3d ed. 1985) Pleading, § 895, p. 334.) When any ground for objection to a complaint or cross-complaint does not appear on the face of the pleading, the objection may be taken by answer. (Code of Civil Procedure, § 430.30 (b).) Defendants cannot set forth allegations of fact in their demurrers which, if true, would defeat plaintiff's complaint. (Fuhrman v. California Satellite Systems (1986) 179 Cal.App.3d 408, 422-423.) (Internal quotations modified, modest editing used.)

[3] While the allegations of the complaint must be accepted as generally true, this rules does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken. (Vance v. Villa Park Mobile-home Estates (1995) 36 Cal.App.4th 698, 709.) Allegations of a complaint must be sufficiently clear to appraise the defendant of the issues which he (or she) is to meet and defend. (Butler v. Sequeira (1950) 100 Cal.App.2d 143.)

[4] 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).

[5] (Rules of Court, rule 3.1304(c): “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 the court orders otherwise. The court must rule on the motion as if the party had appeared. . . . .”; Code of Civil Procedure, § 1005.5: “A motion upon all the grounds stated in the written notice thereof is deemed to have been made and to be pending before the court for all purposes, upon the due service and filing of the notice of motion, but this shall not deprive a party of a hearing of the motion to which he is otherwise entitled.”); Ensher v. Ensher (1964) 225 Cal.App.2d 318, 325-326; see Cromwell v. Cummings (1998) 65 Cal.App.4th Supp. 10, 13.)

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PLEASE NOTE THAT DEPARTMENT 20 USES A TENTATIVE RULING PROCEDURE AS FOLLOWS:

Law & Motion matters are heard every Tuesday and Thursday at 9:00 a.m. Tentative rulings will be accessible on after 2:00 p.m. on the court date preceding the scheduled hearing at:

https: /wvvw.online services/tentatives/tentative rulings_Dept20.shtml

Tentative rulings will become Orders of the Court unless contested. See California Rules of Court, rules 3.1308(a)(l) and 3.1312.

To arrange an appearance to contest a tentative ruling, notify the Court at Prince 408) 808.6856 before 4:00 PM on the court dates before the hearing. You may make your notification to the Court by leaving a message when prompted to do so at the end of the recorded greeting. When you leave your message, state only the case number, case name, the name of the attorney, telephone number, and a brief statement as to the portion of the tentative ruling to which objection is taken. Messages should be brief and notify the portion of the ruling to which objection is taken. Please try to keep the message under 30 seconds.

You must also notify opposing counsel. You do not need to call or leave a message if you are not contesting the tentative ruling.

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