January 18, 2018
Law & Motion Department Tentative Rulings
  • Law and Motion Department Tentative Ruling Line:  (650) 261-5019
  • Other Judges' tentatives: please reference the appropriate Case Number and Case Caption below and contact the appropriate department.

Telephonic Appearances (CourtCall): If an appearance is required or if a party has provided timely notice of intent to appear by 4:00 p.m. to the court and all parties, any party may appear telephonically through CourtCall. To do so, you must contact CourtCall at (888) 882-6878 no later than 4:30 p.m. on the court day prior to the hearing. Notifying CourtCall with your intent to appear is not an alternative to notifying the court. Please visit their website for more information. Please also see California Rule of Court No. 3.670.

 

In the Superior Court of the State of California

In and for the County of San Mateo

 

Law and Motion Calendar

Judge: Honorable RICHARD H. DuBOIS

Department 16

 

400 County Center, Redwood City

Courtroom 7A

 

Friday, January 19, 2018

 

NOTICE TO ALL COUNSEL

 

Until further order of the Court, no endorsed-filed “courtesy copy” of pleadings is required to be provided to the Law and Motion Department.

 

 

IF YOU INTEND TO APPEAR ON ANY CASE ON THIS CALENDAR YOU MUST DO THE FOLLOWING:

 

1. YOU MUST CALL (650) 261-5019 BEFORE 4:00 P.M. TO INFORM THE COURT OF YOUR INTENT TO APPEAR.

2. You must give notice before 4:00 P.M. to all parties of your intent to appear pursuant to California Rules of Court 3.1308(a)(1).

 

Failure to do both items 1 and 2 will result in no oral presentation.

 

Notifying CourtCall with your intent to appear is not an alternative to notifying the court.

 

All Counsel are reminded to comply with California Rule of Court 3.1110.  The Court will expect all exhibits to be tabbed accordingly. 

 

    Case                  Title / Nature of Case

 

 

 

 

 

 

 

 

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Line: 1

16-CIV-00301     CUCKOO'S NEST CLUB, LLC, et al. vs. ANTHONY

                  PERKINS, et al.

 

 

BOOTUP VENTURES, LLC                   DAVID P. NEMECEK, JR.

anthony perkins                        pro/per

 

 

CUCKOO’S NEST CLUB, LLC’S motion to compel COMPLIANCE BY DEFENDANT ANTHONY PERKINS WITH COURT ORDER OR, IN THE ALTERNATIVE FOR TERMINATING SANCTIONS, ISSUES SANCTIONS OR EVIDENCE SANCTIONS AND MONETARY SANCTIONS

TENTATIVE RULING:

 

Plaintiff CUCKOO’s NEST CLUB LLC’s unopposed motion for terminating sanctions against defendant Anthony Perkins is GRANTED pursuant to CCP §§2030.090(c) and 2031.300(c).  Said defendant’s answer is hereby stricken as to CUCKOO’S NEST CLUB’s causes of action and a default may be entered against him.

 

The evidence indicates that defendant failed to comply with a court order compelling response to written discovery.  The request for sanctions is denied as plaintiff has not established the amount of fees actually incurred as a result of defendant’s failure to respond to discovery.   CCP §2023.030.  

 

In this case, plaintiff served defendant with written discovery and he failed to respond.  Plaintiff then moved to compel response and he failed to oppose the motion.  A few days before the hearing defendant filed purported discovery responses but they were not verified and, therefore, were the equivalent of no response.  The court issued an order compelling him to respond by September 15, 2017.  The minutes indicate that no formal order was required as the tentative provided sufficient notice.   To date, defendant has not complied with the court’s order.  See Nemecek declaration, ¶¶2-3.  Nor has defendant filed any opposition to this motion.  As a result, it appears that defendant is not actively pursuing a defense of this action and that lesser sanctions would not result in plaintiff obtaining the discovery at issue.

  

The request for further monetary sanctions is DENIED. 

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10.  If the tentative ruling is uncontested, moving party is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order is to be submitted directly to Judge Richard H. DuBois, Department 16.

 

 



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16-CIV-02443     HARRY HUNG vs. RUTH LAU CUSING, et al.

 

 

HARRY HUNG                             ANDREW D. WINGHART

ruth cusing                            pro/per

 

 

HARRY HUNG’S motion for order for service of publication

TENTATIVE RULING:

 

The Motion is granted.  Plaintiff may serve defendants Ruth Lau Cusing and Bayside Homes Realty, Inc. pursuant to CCP §415.50 by publication in the Examiner. 

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10.  If the tentative ruling is uncontested, moving party is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order is to be submitted directly to Judge Richard H. DuBois, Department 16.

 

 



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16-CIV-02454     JEAN MARC VERDIELL, et al. vs. WAI YIP, et al.

 

 

JEAN MARC VERDIELL                     E. DAVID MARKS

wai yip                                brian newcomb

PRECAST ONLY, INC                      SCOTT HUTCHISON

 

PRECAST ONLY, INC’S motion for good faith settlement

TENTATIVE RULING:

 

Precast Only, Inc’s motion to find it’s settlement with Plaintiffs is made in good faith pursuant to CCP § 877.6 is GRANTED.

 

When non-settling defendants do not oppose a motion on the good faith issue, a barebones motion which sets forth the ground of good faith, accompanied by a declaration which sets forth a brief background of the case is sufficient.  City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1261.

 

Plaintiff’s complaint and all other complaints and cross-complaints filed in this action are dismissed with prejudice as to PRECASE ONLY, INC.

 

All actual or potential claims by any other joint tortfeasor against PRECASE ONLY, INC for equitable, partial or comparative indemnity, including total indemnity or contribution, are forever barred.

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10.  If the tentative ruling is uncontested, moving party is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order is to be submitted directly to Judge Richard H. DuBois, Department 16.

 



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16-CLJ-02577     PORTFOLIO RECOVERY ASSOCIATES, LLC vs. JEANENE

                   HARLICK

 

 

PORTFOLIO RECOVERY ASSOCIATES, LLC      JAIME RITTON

JEANENE HARLICK                        Pro/per

 

 

PLAINTIFF’S motion for judgment on pleadings

TENTATIVE RULING:

 

The Motion for Judgment on the Pleadings is GRANTED. 

 

Plaintiff has established through its complaint, answer filed, and deemed admissions, that an account was stated in the amount of $3,314.54 and that plaintiff is entitled to a judgment in the amount of $3,314.54 principal plus $462.50 in costs.

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10.  If the tentative ruling is uncontested, moving party is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order and judgment is to be submitted directly to Judge Richard H. DuBois, Department 16.

 



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17-CIV-01534     SAN MATEO COUNTY COMMUNITY COLLEGE DISTRICT, et al.

                    vs. LOCUSPOINT NETWORKS, LLC, ET AL.

 

 

san mateo county cC district                 KATHRYN E. MEOLA     

LOCUSPOINT NETWORKS, LLC                    TADAHIRO KABURAKI

PRICEWATERHOUSE ETC.                        JOHN HUESTON

 

 

PRICEWATERHOUSE COOPERS ADVISORY SERVICES, LLC’S hearing on demurrer TO THE DISTRICT’S SECOND AMENDED COMPLAINT

TENTATIVE RULING:

 

Defendant PricewaterhouseCoopers Advisory Services LLC’s (PwC) Demurrer to the Fourth Cause of Action in Plaintiff San Mateo County Community College District’s (the District) Second Amended Complaint (SAC), filed Nov. 17, 2017, alleging “breach of agency and fiduciary duty against PwC,” is OVERRULED, for the reasons set forth below. 

On Demurrer, the Court construes the allegations of the SAC liberally in favor of the pleader.  Code Civ. Proc. Sect. 452; Buxbom v. Smith (1954) 23 Cal.2d 535, 542; Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238 (“the rule of liberal construction means that the [court] draws inferences favorable to the plaintiff, not the defendant.”).   

 

First, as noted by both parties to this Demurrer, an allegation of agency is generally considered an allegation of ultimate fact, and on Demurrer is assumed to be true.  Skopp v. Weaver (1976) 16 Cal.3d 432, 439.  The SAC’s Fourth Cause of Action alleges that PwC’s conduct and interaction with the District during the Quiet Period of the auction gave rise to a direct agency relationship between the District and PwC—that is, it alleges an agency relationship that arose and existed independent of LPN’s attempted appointment of PwC as LPN’s agent.  SAC, Parag. 85-86.  As a general rule, these allegations should suffice; the pleader normally is not required to plead additional facts explaining how the purported direct agency relationship was created in order to withstand a Demurrer.  Skopp, supra, 16 Cal.3d at 439. 

 

Further, the SAC alleges that LPN’s attempted appointment of PwC to perform LPN’s duties to the District during the Quiet Period was ineffective and invalid (an allegation that is not new to the SAC), both because (1) the 2013 Bid Management Agreement required that any agent appointed by LPN must be under LPN’s “direction and supervision” (BMA, Sect. 2.4), which was not possible given the Quiet Period rules, and (2) an agency appointment, to be effective, must be authorized by the principle (the District), and here, the District never formally ratified the 2015 purported Amendment to the BMA, making it invalid. (SAC, Parag. 85-86; 100-101).  As does the SAC, the First Amended Complaint included a declaratory relief claim seeking a judicial determination that 2015 attempted Amendment(s) to the BMA (by which LPN sought to appoint PwC as its agent) were invalid as a matter of law.  (See 4-12-17 FAC, Parag. 91).  The SAC’s Fourth Cause of Action alleges that notwithstanding LPN’s ineffective attempt to engage PwC as its agent during the Quiet Period, PwC, through its conduct, entered into a direct agency relationship with the District.  Id. at 33-41, 44-46, 48, 87.  The Court finds these allegations sufficient to withstand the present Demurrer.  

 

While the Court acknowledges the alleged inconsistencies in the SAC’s Third and Fourth Causes of Action, the Court does not find that they violate the “sham pleading” rule.  (Mot. at 12-15—PwC arguing the SAC’s Third and Fourth Causes of Action impermissibly allege, inconsistently and simultaneously, that PwC both was and wasn’t LPN’s agent during the Quiet Period).  The sham pleading doctrine is intended to prevent dishonest inconsistencies in pleading.  As stated, the District’s First Amended Complaint alleged that LPN’s purported 2015 Amendments to the BMA, which sought to appoint PwC as LPN’s agent, were ineffective/void.  The SAC’s Fourth Cause of Action essentially alleges that to the extent the District is successful in arguing that LPN’s attempted appointment of PwC during the Quiet Period was ineffective, then a direct agency relationship was formed between the District and PwC through conduct.  While an allegation of agency is generally considered an allegation of ultimate fact, the Court finds that these alternative allegations in the SAC’s Third and Fourth Causes of Action are permissible and cannot be fairly characterized as the type of dishonest, “sham” pleading that Courts generally prohibit.  Undoubtedly, PwC is correct that the District added the Fourth Cause of Action to avoid the Demurrer.  That fact alone, however, does not render the new allegations impermissible.   

 

Further, as pointed out, PwC’s current argument is somewhat ironic given PwC’s own contention that it was never LPN’s agent, or the District’s subagent.  (Moving papers at 5, fn 2—PwC denying that it, at any point in time, was LPN’s agent or the District’s subagent).  PwC essentially argues it is impermissible, and a “sham,” for the District to add the Fourth Cause of Action alleging that PwC was never LPN’s agent, even though PwC is currently making the same argument.

 

Nor does the Court agree that the SAC violates the Court’s 10-31-17 Order granting the District leave to amend.  PwC characterizes the Oct. 31 Order as a judicial declaration that any factual allegation(s) relating in any way to the auction cannot form the basis of a direct agency allegation.  At the hearing on PwC’s Motion for Judgment on the Pleadings, the Court noted that an allegation of direct agency must be something in excess of the alleged sub agency.  Behrens Decl., Ex. D at 3 (hearing transcript).  The SAC appears to allege that LPN attempted to appoint PwC as its agent during the Quiet Period, which, if legally effective (which the District contends it was not), made PwC the District’s subagent, but if it was not effective, then PwC formed a direct agency relationship with the District through conduct.  In the later scenario, the District is alleging a direct agency relationship outside the scope of any appointment by LPN.  Given the rule of liberal construction cited above, the Court finds these allegations sufficient at the pleading stage. 

 

PwC shall file an answer to the Second Amended Complaint on or before February 2, 2018.

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.

 



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17-CIV-02158     DONNA J. LUDLUM vs. STEPHEN LUDLUM, et al.

 

 

DONNA J. LUDLUM                        JOSHUA J.K. HENDERSON

STEPHEN LUDLUM                         BRIAN J. MCSWEENEY

 

 

STEPHEN LUDLUM AND LUISA SY’S motion to be relieved as counsel

TENTATIVE RULING:

 

Brian McSweeney’s unopposed motion to be relieved as counsel of record is granted as to counsel’s representation of defendant Luisa Sy.  The motion is moot as to the representation of defendant Stephen Ludlum.  A substitution of attorney was filed on December 27, 2017 indicating that Mr. Ludlum is now represented by attorney Michael Bravo.    

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10.  If the tentative ruling is uncontested, ATTORNEY is directed to prepare, circulate, and submit a written order on the appropriate judicial council form for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order is to be submitted directly to Judge Richard H. DuBois, Department 16.

 



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17-CIV-03501     NAPEAN CAPITAL GROUP, LLC, et al. vs. SELECT

                  PORTFOLIO SERVICING INC., et al.

 

 

NAPEAN CAPITAL GROUP, LLC              CARLOS A. ALVAREZ

SELECT PORTFOLIO SERVICING INC.         THOMAS A. WOODS

ONE KEY ESCROW                         ADAM RAPAPORT

 

ONE KEY ESCROW CORPORATION’S hearing on demurrer TO PLAINTIFF’S FIRST AMENDED COMPLAINT

TENTATIVE RULING:

 

The Demurrer of Defendant One Key Escrow Corporation (“Defendant”) to Plaintiffs’ First Amended Complaint, is ruled on as follows: 

 

Demurrer to the Second Cause of Action for Declaratory Relief is SUSTAINED WITHOUT LEAVE TO AMEND based on failure to allege facts sufficient to support this claim against Defendant.  In this claim, Plaintiff seeks a declaration regarding the rights and duties of the parties concerning the property. Defendant is an escrow company though, and Plaintiff has not alleged that Defendant has any right or obligation concerning the property.

 

Demurrer to the Seventh Cause of Action for Negligence is SUSTAINED WITH LEAVE TO AMEND based on failure to allege facts sufficient to support this claim. An escrow company’s duty is limited to faithful compliance with the escrow instructions.  (Hannon v. Western Title Ins. Co. (1989) 211 Cal.App.3d 1122, 1128.)  Plaintiff claims that Defendant breached a duty of care to verify the written communication confirming the Washington Mutual Deed of Trust was paid off, but Plaintiff has not pleaded facts to support that there was a duty to verify such information under the escrow instructions. 

 

Demurrer to the Eighth Cause of Action for Negligent Misrepresentation is SUSTAINED WITH LEAVE TO AMEND based on failure to allege facts sufficient to support this claim.  Plaintiff fails to allege Defendant’s misrepresentation with the necessary specificity, including facts that show how, when, where, to whom and by what means the misrepresentation was made.  (See Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) 

 

Demurrer to the entire First Amended Complaint based on uncertainty is OVERRULED.  Defendant demurs on this ground, but fails to make any argument in support.

 

Plaintiff also requests leave to amend to add claims for breach of escrow instructions and breach of fiduciary duty against Defendant.  Since leave to amend is liberally granted, Plaintiff is also given leave to allege these claims in the Second Amended Complaint.

 

Plaintiff shall file and serve a Second Amended Complaint by February 9, 2018.

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.

 

 

 



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CIV537530     SOPHIA ANDRITSAKIS VS. DAVID J. KAPLAN, ET AL.

 

 

SOPHIA ANDRITSAKIS                     BRYAN HARRISON

DAVID J. KAPLAN & FOOTCARE             ARTHUR W. CURLEY

 

 

8. DAVID KAPLAN AND FOOT CARE SPECIALISTS, INC’S motion to strike portions of plaintiff’s fourth amended complaint

TENTATIVE RULING:

 

The motion to strike is denied as to all three matters.

       

 A.  Paragraphs 83, 84, and 85.

 

The motion is denied as to paragraphs 83, 84, and 85.

 

Defendant’s argument that in Paragraphs 86 and 87 “Plaintiff alleges that she relied on the subject 4/24/15 medical record in deciding on her post-operative treatment and, had she not so relied, then she would have sought post-operative care elsewhere” (Moving P&A at 3:21-24) is incorrect.  Nothing in paragraph 86 or 87 alleges that Plaintiff relied on the 4/24/15 medical record.

 

Defendant argues that the allegations of reliance on the 4/24/15 medical record are false, since she never saw the medical record until after she decided to stop treating with Defendant. (Moving P&A at 3:26-28 (citing paragraph 37).) Paragraph 37 states that Plaintiff was treated at Palo Alto Wound clinic on April 30, 2015, and that “Plaintiff decided to cease treating with Dr. Kaplan and to continue treatment at the Wound Clinic.” However, Paragraph 37 does not clearly allege that April 30, 2015 was the date when she decided to cease seeing Dr. Kaplan. A motion to strike must be based on the face of the pleadings, not the opposing party’s interpretation of the pleading.

 

Plaintiff alleges that she did not request a copy of the 4/24/15 record until May 15, 2015. Defendant contends that Plaintiff could not have relied on any representation contained within the 4/24/15 note, since she decided to cease seeing Dr. Kaplan before she received the note. However, Plaintiff does not allege that she relied on a representation that was in the 4/24/15 note. Rather, she alleges that she relied on “Dr. Kaplan’s oral misrepresentations and/or concealment of information . . ..”

 

Finally, Defendant argues that “conclusory allegations that the note incorrectly reported plaintiff s condition and Dr. Kaplan’s assessment” is not sufficiently specific for pleading fraud. However, lack of specific pleading is a basis for demurrer, not a motion to strike.

 

     B.   Page 19, Line 10.

 

The motion is denied as to the words “and/or falsifications” at Page 19, Line 10. Defendant argues that fraud must be alleged with “particularity,” but that Page 19 at line 10 alleges a mere conclusion of “concealment and/or falsifications.” (Moving P&A at 4:10-14.) Defendant then argues that the pleading merely concludes that the 4/24/15 medical record was “altered” (Id. at 4:16), which is insufficient. The allegation that the record was altered is not the basis of the cause of action. The alleged fraud is that Defendant Kaplan made “oral misrepresentations and/ or concealment of information.” (FAC para. 86.) Further, it is unclear how the allegation that the record was “altered” requires striking the allegation of “and/or falsification” at Page 19, Line 10.

 

     C.   Exhibit 7.

 

The motion is denied as to Exhibit 7. Defendant’s Points and Authorities contain no argument challenging Exhibit 7 as false, improper, or irrelevant.

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.

 

 

 

 

9. PLAINTIFF’S motion to compel FURTHER RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET NO. THREE, AND REQUEST FOR MONETARY SANCTION

tentative ruling:

 

 

Plaintiff’s motion to compel a further response to document request 72 is denied.

 

Before filing this motion, Plaintiff failed to meet and confer on the sufficiency of Defendant’s written response. (See Declaration of Jong, Exhibits D through V; Code of Civ. Proc. sect. 2031.310, subd. (b)(2) (motion to compel further response must include meet-and-confer declaration).) Further, since Plaintiff failed to meet and confer concerning the written response to RFP 72, any extensions of deadlines for filing a motion did not pertain to a motion under section 2031.310. Since the motion is untimely, the Court lacks jurisdiction to rule on the merits. Finally, Plaintiff’s motion is moot, since Defendant served a supplemental response on December 28, 2017.

 

Plaintiff’s alternative motion to compel production of the Purchase Agreement is denied.  A motion to compel production of documents is appropriate when a party fails to allow inspection of documents in accordance with his written response that he would permit the inspection. (Code of Civ. Proc. sect. 2031.320.) Defendant’s original response stated that Defendant would produce the document “upon location of the agreement.” Since the response does not state that Defendant would, unconditionally, produce the document, the motion to compel production is premature. Further, Defendant’s Supplemental Response (served after this motion was filed) states that Defendant never had possession or control of the document, thereby making production impossible. The Court cannot compel production of a document the party does not possess or control.

 

Defendant’s request for sanctions is denied. Filing the present motion after the deadline and without meeting and conferring is misuse of discovery that would warrant sanctions. However, Defendant requests sanctions only against Plaintiff Andritsakis. (See Defendant’s Notice of Request for Imposition of Sanctions against Plaintiff at 1:26.) The misuse of discovery was committed by Plaintiff’s counsel, not Plaintiff. For lack of notice of request for sanctions against Plaintiff’s counsel, the request for sanctions is denied. (See Code of Civ. Proc. sect. 2023.040 (request for sanction “shall . . . identify every person, party, and attorney against whom the sanction is sought”).)  

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.

 



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CIV537988     NATALIE AHUACTZIN, ET AL. VS. ALBERTO GOMEZ, ET AL.

 

 

SARA CORTEZ                            JOHN F. VANNUCCI

alberto gomez                          steven chase

CITY OF SOUTH SAN FRANCISCO             TODD MASTER

 

CITY OF SOUTH SAN FRANCISCO’S motion for summary of judgment, or in the alternative, SUMMARY adjudication

TENTATIVE RULING:

 

Defendant CITY OF SOUTH SAN FRANCISCO’s unopposed Motion for Summary Judgment is GRANTED.  There are no triable issues of material fact with respect to Plaintiffs’ Third cause of action for dangerous condition of public property, which is the only claim brought against the City, and Plaintiffs concede this in their Statement of Non-Opposition.  Accordingly, the City is entitled to judgment as a matter of law.  Code Civ. Proc. § 437c(c).

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10.  If the tentative ruling is uncontested, moving party is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order is to be submitted directly to Judge Richard H. DuBois, Department 16.

 

 



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CIV539018     BEVERYLY FAILS VS. PROVIDENCE BAPTIST CHURCH

 

 

BEVERLY FAILS                          BRIAN L. LARSEN

providence baptist church              matthew volkman

 

 

DEFENDANT’S motion for summary judgment

TENTATIVE RULING:

 

The Motion for Summary Judgment brought by defendant Providence Baptist Church of San Francisco (the Church) is GRANTED.

 

For a motion for summary judgment, the notice of motion must be served 75 days prior to the hearing, with an additional 5 days if the notice of motion is served via mail to a party in California. Code Civ. Proc. § 437c(a). The present motion fails to give such notice.  However, Plaintiff has filed a full opposition brief, which waives the necessity of giving appropriate notice. 

 

The legal standard for summary adjudication or summary judgment is that the moving party has an initial burden of production to establish enough evidence to make a prima facie case. Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 861. Where, as here, the party moving for summary judgment is the defendant, the burden is to show that one or more of the elements of the cause of action cannot be established.  The sole cause of action against the Church is one for premises liability.

 

The Church’s entire focus of its argument is that it did not owe a duty to inspect the premises because it was not the owner of the premises and did not control the premises. That duty issue, or, in premises liability, that issue of ownership and control, is a separate and distinct element from the negligence element. CACI No. 1000. Plaintiff’s repeated attempt to focus on whether the Church was negligent in failing to inspect the premises is therefore a misdirection.

 

The element at issue is whether “[name of defendant] [owned/ leased/ occupied/ {or} controlled] the property…” CACI No. 1000(1). Plaintiff concedes as a matter of fact that:

 

·         “[t]he Church did not possess the area of the Hotel where Plaintiff’s accident occurred…” (Plaintiff’s Response to Defendant’s Amended Separate Statement (f: 01/05/18), ¶ 11 (emphasis added)), and

 

·         “[t]he Church did not own the Hotel where Plaintiff’s accident occurred…”  (Plaintiff’s Response to Defendant’s Amended Separate Statement (f: 01/05/18), ¶ 13 (emphasis added)).

 

Thus, the entire inquiry here comes down to the issue of control of the premises. It is undisputed that the incident took place in a common area of the hotel rather than in the room where the conference was being held. Plaintiff’s Response to Amended Separate Statement (f: 01/05/18), ¶¶ 5-6. It is undisputed that “Plaintiff left the Conference, walked down the hallway to the buffet, grabbed a plate, took her place in the buffet line, selected the food she wanted, and sat down to eat at one of the nearby tables.” Plaintiff’s Response to Amended Separate Statement (f: 01/05/18), ¶ 9. It is undisputed that Plaintiff’s slip and fall occurred on a piece of cookie that was “on the [floor of the] Hotel lobby.” Plaintiff’s Response to Amended Separate Statement (f: 01/05/18), ¶ 10. Here, no reasonable finder of fact could conclude that because the Church was paying for the meal buffet it had sufficient “control” over the Hotel and thus “control” over the premises. More simply, the Church was not in possession or control of the buffet area or the lobby—the Hotel was in possession and control of that portion of the space.

 

Finally, there is no evidence to establish that the Church had actual or constructive notice of the purportedly dangerous condition on which she slipped.

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10.  If the tentative ruling is uncontested, moving party is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order is to be submitted directly to Judge Richard H. DuBois, Department 16.


 

 

 


POSTED:  3:00 PM

 

© 2018 Superior Court of San Mateo County