Superior Court, State of California



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|SUPERIOR COURT, STATE OF CALIFORNIA |

|COUNTY OF SANTA CLARA |

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|Department 20, Honorable Mary E. Arand Presiding |

|(for the Honorable Socrates Peter Manoukian) |

|Courtroom Clerk: Hien-Trang Tran-Thien |

|191 North First Street, San Jose, CA 95113 |

|Telephone: 408.882.2320 |

|Department20@ |

“The Opposing Counsel on the Second-Biggest Case of Your Life Will Be the Trial Judge on the Biggest Case of Your Life.”—Common Wisdom.

As Shakespeare observed, it is not uncommon for legal adversaries to "strive mightily, but eat and drink as friends." (Shakespeare, The Taming of the Shrew, act I, scene ii.)” (Gregori v. Bank of America (1989) 207 Cal.App.3d 291, 309.)

Counsel is duty-bound to know the rules of civil procedure. (See Ten Eyck v. Industrial Forklifts Co. (1989) 216 Cal.App.3d 540, 545.)

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DATE: Thursday, 19 May 2022

TIME: 9:00 A.M.

This Department prefers that litigants use Zoom for Law and Motion and for Case Management Calendars. Court Call is also acceptable.

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.

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.

Whether appearing in person or on a virtual platform, the usual custom and practices of decorum and attire apply.

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.

APPEARANCES.

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.”

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. This Court will approve all requests to bring a court reporter. 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 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 | 21CV391517 | The City of San Jose vs. All Persons Interested in|Ctrl/click on Line 1 for tentative ruling |

| | |the Matter of the Issuance and Sale of Pension | |

| | |Obligation Bonds, Etc. | |

|LINE 2 | 21CV391997 | Veronica Nolasco vs GREYSTAR CALIFORNIA, INC et al|Defendant Frit San Jose Town and Country Village, LLC filed a motion |

| | | |to strike from the prayer in the complaint for punitive damages on the|

| | | |grounds that such damages are not available for the causes of action |

| | | |alleged. The motion was timely and properly served, is unopposed, has|

| | | |merit, and is GRANTED. Moving counsel shall efile and serve the |

| | | |proposed order, and send a word version of the proposed order to |

| | | |department9@. |

|LINE 3 | 19CV356117 | Syed Ali vs Apple, Inc. et al |Motion to compel further production of documents is DENIED. Defendant|

| | | |Apple has adequately responded to the prior order requiring production|

| | | |of documents, and is within its rights to redact personal identifying |

| | | |information about persons listed in the documents in order to protect |

| | | |their privacy. Plaintiff has refused to state how the redacted |

| | | |information is relevant or necessary to his case which he has the |

| | | |burden to establish in order to support an order to compel. Apple has |

| | | |established a significant risk that the information will be misused if|

| | | |it is disclosed to Plaintiff. |

|LINE 4 | 21CV387911 | Dylan Nguyen et al vs Samuel Su et al |Plaintiff filed a motion to compel further responses to discovery on |

| | | |the grounds that objections were not proper and not all discovery, |

| | | |including responsive documents, were produced. Defendant opposed the |

| | | |motion claiming it was moot, because the meet and confer process was |

| | | |not yet complete, and the motion was moot because supplemental |

| | | |responses and documents were produced. |

| | | |Defendant is mistaken. The motion is not moot because Defendant still|

| | | |has all of the same objections, and it is impossible to tell what, if |

| | | |anything, is not being produced. It is Defendant’s burden to support |

| | | |all of the objections made to discovery, and Defendant made no effort |

| | | |to do this. |

| | | |Defendant shall provide further and complete responses to all |

| | | |discovery requests, without objections. If Defendant has any |

| | | |legitimate privilege claims, Defendant shall produce a privilege log. |

| | | |All supplemental responses and any additional documents shall be |

| | | |produced within 20 days after service of a signed order. |

| | | |Moving party to prepare the order, and to send it to opposing counsel |

| | | |for approval as to form before sending it to the Court. The Order |

| | | |shall describe all discovery requests that are part of the order. |

| | | |The order is to be efiled and sent to the email box at |

| | | |department9@. |

|LINE 5 | 18CV323463 | Nancy LaScola vs Theodore LaScola |Appearance required. The Court notes that Judge Manoukian already |

| | | |denied this motion, and it is not clear to this Court what, if |

| | | |anything, differs. |

|LINE 6 | 18CV323463 | Nancy LaScola vs Theodore LaScola |See Line 5 |

|LINE 7 | 2011-1-CV-198882 | Citibank (South Dakota), N.A. vs K. Lee |Defendant Kim Lee is ordered to appear in Court, and bring documents |

| | | |to support the income and expenses listed on the claim of exemption, |

| | | |to include receipts, bank statements, income statements. |

| | | |The Court also notes that the claim of exemption is not found in the |

| | | |court file, and Defendant shall bring a copy with him. |

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Case Name: The City of San Jose v. All Persons Interested in the Matter of the Issuance and Sale of Pension Obligation Bonds for the Purpose of Refunding Certain Pension Obligations owed by the City of San Jose to and all Proceedings leading thereto, including the Adoption of a Resolution that Authorizes Issuance of Pension Obligation Bonds, the Execution and Delivery of a Trust Agreement and Bond Purchase Agreement, and the Sale of such Bonds

Case No.: 21-CV-391517

Motion to Strike Untimely Answer and Enter Validation Judgment by plaintiff The City of San Jose

Factual and Procedural Background

This is a complaint for validation brought by the City of San Jose (“City”). The City brings this action to determine the validity of the proceedings and obligations relating to the City’s issuance of one or more series of pension obligation refunding bonds, execution of a trust agreement and a bond purchase agreement, and approving additional actions related thereto. (Complaint at ¶ 1.) The defendants represent All Persons Interested in the Matters set forth in the caption (“Defendants”) and are named in the complaint pursuant to Code of Civil Procedure sections 861, 861.1, and 862. (Id. at ¶¶ 2, 16.)

On October 5, 2021, the San Jose City Council adopted a resolution entitled “A RESOLUTION OF THE COUNCIL OF THE CITY OF SAN JOSE AUTHORIZING THE ISSUANCE OF BONDS TO REFUND AND PREPAY CERTAIN PENSION OBLIGATIONS OF THE CITY, APPROVING THE FORM AND AUTHORIZING THE EXECUTION OF A TRUST AGREEMENT AND BOND PURCHASE AGREEMENT, AUTHORIZING JUDICIAL VALIDATION PROCEEDINGS RELATING TO THE ISSUANCE OF SUCH BONDS AND APPROVING ADDITIONAL ACTIONS RELATED THERETO” (the “Resolution”). (Complaint at ¶ 10.)

The instant action is brought under Code of Civil Procedure section 860 as a special in rem proceeding for the judicial examination, approval and confirmation of the proceedings leading up to and including the adoption of the Resolution authorizing the issuance and sale of the Bonds by the City. (Complaint at ¶ 18.)

On November 18, 2021, the City filed its complaint for validation.

On December 9, 2021, the City filed an ex parte application for an order directing the issuance, publication, and mailing of summons and fixing the date to be specified in the summons for appearing and answering the complaint.

On December 10, 2021, the court (Hon. Manoukian), in response to the ex parte application, ordered, among other things, that: (1) the Clerk of the Court shall issue a summons forthwith; (2) the summons shall specify January 27, 2022 as the date by which all persons interested in this matter must appear and answer the complaint; and (3) service of the summons by such publication shall be completed not later than January 17, 2022.

On February 14, 2022, Defendants filed their answer admitting and denying allegations of the complaint and alleging affirmative defenses.

On April 8, 2022, the City filed the motions presently before the court to strike the answer and enter validation judgment. The City filed a request for judicial notice in conjunction with the motions. Defendants filed written opposition. The City filed reply papers.

A further case management conference is also set for May 19, 2022.

Motion to Strike Answer

The City argues Defendants’ answer was untimely filed and therefore must be stricken.

Meet and Confer Requirement

In opposition, Defendants argue the City did not meet and confer on issues regarding the motion to strike before filing the motion.

Before filing a motion to strike, “the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ. Proc., § 435.5, subd. (a).) “The parties shall meet and confer at least five days before the date a motion to strike must be filed.” (Code Civ. Proc, § 435.5, subd. (a)(2).)       

 When filing the motion to strike, the moving party must include a declaration stating either the means by which the moving party met and conferred with [the other party] and that the party did not reach an agreement resolving the objections raised in the motion to strike or [the other party] failed to respond to the meet and confer request of the moving party or otherwise failed to meet and confer in good faith. (Code Civ. Proc., § 435.5, subd. (a)(3).)

A court’s determination that the meet and confer process was insufficient is not a ground to grant or deny the motion to strike. (Code Civ. Proc., § 435.5, subd. (a)(4).)     

 Here, counsel for the City did not file a meet and confer declaration with the court in compliance with the statute. But, as stated above, a failure to meet and confer is not a basis for granting or denying a motion to strike. The court therefore will consider the merits of the motion. Counsel for the City is on notice to comply with court rules and procedures with respect to future filings.

Request for Judicial Notice

The court declines to address the request for judicial notice as those exhibits are not material to the City’s motion to strike. (See Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6 [a court need not take judicial notice of a matter unless it “is necessary, helpful, or relevant”].) Instead, the exhibits pertain to the motion to enter validation judgment which will be addressed by the court at a later time as stated below.

Legal Standard

A court may strike out any irrelevant, false, or improper matter asserted in a pleading. (Code Civ. Proc., § 436, subd. (a).) A court may also strike out all or any part of a pleading not filed in conformity with the laws of the State of California. (Code Civ. Proc., § 436, subd. (b).) The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437, subd. (a).)

When a defendant has not filed an answer within the time required in the summons or by court order, the proper procedure is for the plaintiff to move to strike the defendant’s untimely pleading and, if the court grants such relief, thereafter proceed to obtain the entry of the defendant’s default. (Goddard v. Pollock (1974) 37 Cal.App.3d 137, 141 (Goddard).)

Analysis

As a threshold issue, Defendants argue the motion to strike should be denied as it is untimely filed. A plaintiff has 30 days after service of the answer to file a motion to strike. (Code Civ. Proc., 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322(b).) The answer was served on the City on January 27, 2022. Counsel for the City acknowledged email service of the answer on the same day. (See Burns Decl. at ¶ 3.) The City however did not file its motion to strike until April 8, 2022, beyond the 30-day period. Therefore, the motion to strike is untimely. But, given that a court may strike a pleading at any time (Code Civ. Proc., § 436), the court will disregard that the motion to strike was untimely and address the merits.

As a general matter, “[i]t is well settled that a defendant may file an answer, even after the time to answer has expired, unless a default has previously been entered.” (Brown v. Ridgeway (1983) 149 Cal.App.3d 732, 736.) Also, “it is now well established by the case law that where a pleading is belatedly filed, but at a time when a default has not yet been taken, the plaintiff has, in effect, granted the defendant additional time within which to plead and he is not strictly in default.” (Goddard, supra, 37 Cal.App.3d at p. 141.) Currently, no default has been entered in this matter.[1]

Furthermore, “[t]he plaintiff has no absolute right to have the pleading stricken from the files merely because it was not filed in time; and, on the other hand, the defendant has no absolute right to have his belated pleading remain in the files; for a defendant cannot, as of right, answer or demur after the expiration of the time prescribed by statute. It is a proper practice, therefore, for the plaintiff to move to strike the pleading from the files; and, in the exercise of a sound discretion, the court very properly may grant such motion strike.” (Cuddahy, supra, 46 Cal.App. at pp. 580-581.)

Specifically as to validation actions, the City argues the answer should be stricken as it is untimely filed in accordance with Code of Civil Procedure section 862. That section provides:

“Jurisdiction shall be complete after the date specified in the summons. Any party interested may, not later than the date specified in the summons, appear and contest the legality or validity of the matter sought to be determined.”

The City relies also on City of San Diego v. San Diegans for Open Government (2016) 3 Cal.App.5th 568, 579 (City of San Diego) for the proposition that:

“In a validation action, any interested party has a statutory deadline by which he or she must appear to contest the government’s action. [Citation.] If the interested party does not appear during the prescribed time, he or she loses the opportunity to challenge the government’s action. [Citation.]”

As stated above, the summons required any interested parties to appear no later than January 27, 2022. Since Defendants did not file their answer until February 14, 2022, the City contends the answer is untimely and must be stricken.

But, City of San Diego is not persuasive authority on this issue as that case did not consider a motion to strike an answer in a validation action. Rather, the appellate court reversed an award for attorney’s fees in a validation action as the defendant corporation was suspended at the time it filed its answer. (City of San Diego, supra, 3 Cal.App.5th at p. 580.) The defendant’s corporate status was not revived until well after the period to appear in the validation action had expired. (Ibid.) In addition, the corporation’s counsel was aware of the suspended status at the time the answer was filed and did not inform the superior court or the plaintiff of its suspended status. (Ibid.)

“It [defendant SDOG] did not seek a continuance so SDOG could be revived and, once revived, file an answer. BLC [defense counsel] offers no explanation for its improper conduct. Nor does it explain what additional benefit it provided in this matter in light of the fact that Shapiro had already appeared and was protecting the public interest. Put differently, BLC does not elucidate why it was imperative that it knowingly represent a suspended corporation in this matter. We can draw no other conclusion but that BLC proceeded in bad faith in the instant action.”

(Ibid, emphasis added.)

Here, Defendants served their answer on January 27, 2022 and submitted it to the court for filing the same day. (Algea Decl. at ¶ 2-3.) Defendants did not realize until February 10, 2022 that the answer had been rejected for insufficient payment of filing fees. (Id. at ¶ 4.) Following submission of the additional payment, the answer was not accepted for filing until the next business day on February 14, 2022. (Id. at ¶ 5.) Unlike City of San Diego, the court does not find any evidence of bad faith exercised by defense counsel in the untimely filing of their answer in this validation action. Instead, it appears the untimely filing was the result of an inadvertent calculation error and Defendants were otherwise diligent in seeking to make the proper correction and file their answer.

And, at least one court has excused late service on interested persons in a validation action absent a showing of prejudice. (See San Diegans for Open Government v. City of San Diego Government v. City of San Diego (2015) 242 Cal.App.4th 416 [service on all interested persons in a reverse validation action was accomplished by publication of a proper summons; court had jurisdiction over the subject matter and discretion to excuse late service on the California Attorney General and the California Treasurer absent a showing of prejudice].) The City has not made any showing of prejudice by the untimely filing of the answer. Nor does there appear to be prejudice as the City concedes it timely received email service of the answer on January 27, 2022. (See Burns Decl. at ¶ 3.)

As a final point, this court adheres to the principle that cases be tried on the merits whenever possible. (See Purdum v. Holmes (2010) 186 Cal.App.4th 916, 922 [“The policy of the law favors a hearing on the merits.”].) This is particularly so given the unique nature of validation actions like the one presented here. (See Moorpark Unified School Dist. v. Super. Ct. (1990) 223 Cal.App.3d 954, 960 [“The purpose of the validation statutes is to provide a simple and uniform method for testing the validity of government action.”].)

Accordingly, the motion to strike the answer is DENIED. To the extent that the City takes issue with affirmative defenses alleged in the answer, the proper procedural vehicle for addressing those defenses is demurrer, motion for summary adjudication or at the hearing or trial.

Motion to Enter Validation Judgment

The court declines at this time to address the City’s motion to enter validation judgment. The matter instead will be set for hearing on the Trial Setting Calendar.

Disposition

The motion to strike the answer is DENIED.

The motion to enter validation judgment will be set for hearing on the Trial Setting Calendar. The Court notes that this case is set on the 10:00 OSC/status calendar.

The court will prepare the Order.

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[1] According to court records, the City submitted requests for entry of default on February 16 and 17, 2022 but no defaults have been entered. The clerk may have declined entry of default because Defendants had filed their answer on February 14, 2022. (See Cuddahy v. Gragg (1920) 46 Cal.App. 578, 580 (Cuddahy) [“a court has no authority to enter default of a defendant if, when it is entered, he has a pleading on file”].)

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