July 23, 2014
Law & Motions 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 ELIZABETH K. LEE

Department 17

 

400 County Center, Redwood City

Courtroom 2M

 

JULY 18, 2014

 

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.

 

N.B. 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

9:00

1

CIV 519064       JACKIEJO LOPEZ, ET AL. VS. SOUTH SAN FRANCISCO POLICE

                   DEPARTMENT, ET AL.

 

 

JACKIEJO LOPEZ                        GREGORY S. WALSTON

SOUTH SAN FRANCISCO POLICE DEPARTMENT

 

 

MOTION TO BE RELIEVED AS COUNSEL FOR JACKIEJO LOPEZ AND EDWARD MILLER BY GREGORY S. WALSTON

 

 

·         Counsel Gregory S. Walston’s Motion to be Relieved as Counsel for Plaintiffs Jackiejo Lopez and Edward Miller are GRANTED pursuant to CCP § 284(2) and CRC § 3.1362.  Counsel has filed this motion using the required forms and has provided notice to both of his clients as well as counsel for Defendants.

 

·         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. 

 

_____________________________________________________________________

9:00

2

CIV 523928       CORNELIUS O'LEARY, ET AL. VS. RYAN PAUL

 

 

CORNELIUS O'LEARY                     BRIAN J. GRAZIANI

RYAN PAUL                             STELLA H. ZYMAN

 

 

MOTION TO COMPEL RESPONSES TO DISCOVERY AND REQUEST FOR SANCTIONS BY RYAN PAUL

 

 

·         Defendant’s unopposed Motion to Compel Responses to Form Interrogatories [Set 1], Special Interrogatories [Set 1] and Demand for Identification and Inspection [Set 1] is GRANTED pursuant to CCP §§ 2030.290(b)-(c) and 2031.300(b)-(c).  Plaintiffs have not provided any responses to Defendant’s discovery requests as required by CCP §§ 2030.260 and 2031.260.  Plaintiffs are ORDERED to provide verified responses, without objection, to Defendant’s Form Interrogatories, Special Interrogatories and Demand for Identification and Inspection within 20 days of service of notice of this order.

 

·         Defendant’s Request for Sanctions is GRANTED.  Defendant shall be awarded $572.00 in attorney’s fees and costs under CCP §§ 2030.290(c) and 2031.300(c).  Plaintiffs are ORDERED to pay $572.00 in sanctions within 20 days of service of notice of this order.

 

·         Moving party is directed to prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court.  The order is to be submitted directly to Judge Elizabeth K. Lee, Department 17.

 

_____________________________________________________________________

9:00

3

CIV 526041       PILLAR POINT PROJECT DEVELOPERS, LLC VS. ANDREINI

                   BROTHERS, INC.

 

PILLAR POINT PROJECT DEVELOPERS, LLC  JAMES PAUL GREEN

ANDREINI BROTHERS, INC.

 

 

MOTION FOR RECOVERY OF ATTORNEY'S FEES AND COSTS BY ANDREINI BROTHERS, INC.

 

 

·         The Motion for Attorney’s Fees is granted in the amount of $13,253.00.  The Motion for Costs is denied.

 

·         As a matter of law, when a party defeats an independent petition to compel arbitration, the action is terminated and the prevailing party on the petition is entitled to fees under Civil Code § 1717. (Frog Creek Partners, LLC v. Vance Brown, Inc. (2012) 206 Cal.App.4th 515, 533.)  A petition to compel arbitration is an “action on the contract” for purposes of Civil Code § 1717.  A party opposing the petition obtains a “simple, unqualified win” on the only contract claim at issue which is whether to compel arbitration under the Coordination Agreement.  (Id.) 

 

·         The Petition expressly alleged that Petitioner PILLAR POINT PROJECT DEVELOPERS, LLC and Respondent ANDREINI BROTHERS, INC. were parties to a contract.  (Petition ¶ 10 [“The agreement by and between Petitioner PILLAR POINT and Respondent ANDREINI BROTHERS in written form . . . has a provision therein requiring the parties to resolve differences by way of binding arbitration . . . .”])  Petitioner PILLAR POINT’s Opposition to this motion argues that it brought the Petition not as a party to a contract with Respondent ANDREINI BROTHERS, but as a “third party beneficiary” to a contract that Respondent ANDREINI BROTHERS had with the general contractor.  (See opposing Points and Authorities at 2:7-12.)  This is incorrect.  The Petition alleges that Petitioner PILLAR POINT and Respondent ANDREINI BROTHERS were contracting parties (Petition ¶ 10).  Nothing in the Petition alleges or implies that Petitioner PILLAR POINT was a “third-party beneficiary” to the contract between Respondent ANDREINI BROTHERS and the general contractor.

 

·         The Court finds that 36.3 hours incurred in this action is reasonable for the nature of this proceeding, as is Counsel’s hourly rate of $365.00.  Thus, the Court sets the lodestar at $13,253.00.  No circumstances justify a multiplier for increasing or decreasing the lodestar amount.  Thus, the Court grants the motion for attorney’s fees in the amount of $13,253.00.

 

·         The motion is denied as to costs.  As a prevailing party, Respondent ANDREINI BROTHERS must seek costs under CRC Rule 3.1700 and not by noticed motion. 

 

·         Moving party is directed to prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court.  The order is to be submitted directly to Judge Elizabeth K. Lee, Department 17.

 

_____________________________________________________________________

9:00

4

CIV 527016       ALEX HOFSTEEDE VS GS MOTORS SALES AND RENTALS, LLC,

                   ET AL.

 

 

ALEX HOFSTEEDE                        ALEXANDER A. GUILLEN

GS MOTORS SALES AND RENTALS, LLC      PRO/PER

 

 

DEMURRER TO FIRst Amended COMPLAINT of HOFSTEEDE BY WESTERN SURETY COMPANY

 

 

·         The general Demurrer is SUSTAINED without leave to amend.  Plaintiff does not allege that Defendant has engaged in any conduct that constitutes a violation of the CLRA nor has Plaintiff cited any authority indicating that the derivative liability imposed by Vehicle Code § 11711 permits a direct claim under the CLRA. 

 

·         The special Demurrer for uncertainty is MOOT given the ruling on the general Demurrer.

 

·         Demurring party is directed to prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court.  The order is to be submitted directly to Judge Elizabeth K. Lee, Department 17.

 

_____________________________________________________________________

9:00

5

CIV 527094       NINA GOREE, ET AL. VS. GERARD MADDEN

 

 

NINA GOREE                            ELAN DARVISH

GERARD MADDEN

 

 

MOTION TO STRIKE PORTIONS OF THE FIRST AMENDED COMPLAINT BY GERARD MADDEN

 

 

·         Defendant Gerard Madden’s Motion to Strike is GRANTED WITHOUT LEAVE TO AMEND as to the allegations regarding emotional distress damages and attorney’s fees.  The motion is GRANTED WITH LEAVE TO AMEND as to the allegations regarding lost rental income and punitive damages, including the addition of new causes of action as warranted by the facts of this case. 

 

·         Moving party is directed to prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court.  The order is to be submitted directly to Judge Elizabeth K. Lee, Department 17.

 

_____________________________________________________________________

9:00

6

CIV 527654       LAURA BERNADETTE HAYWARD VS. THOMAS POZDRO

 

 

LAURA BERNADETTE HAYWARD              TIMOTHY B. BRODERICK

THOMAS POZDRO                         PRO/PER

 

 

APPLICATION TO APPEAR AS COUNSEL PRO HAC VICE FOR THOMAS POZDRO BY CRYSTAL ELLER, ESQ.

 

 

·         Counsel Crystal Eller’s Application to Appear as Counsel Pro Hac Vice for Defendant Thomas Pozdro in this matter is GRANTED pursuant to California Rules of Court, Rule 9.40 upon proof that Counsel has paid the $500 fee now required by the San Mateo County Superior Court pursuant to Government Code § 70617.  She has met all of the other requirements of CRC 9.40, which are the only requirements to be eligible for admission pro hac vice. 

 

·         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. 

 

_____________________________________________________________________

9:00

7

CIV 527715       JOSE RAMOS, ET AL. VS. NATIONSTAR MORTGAGE, LLC, ET

                   AL.

 

 

JOSE RAMOS                            CHARLES T. MARSHALL

NATIONSTAR MORTGAGE, LLC              NATILEE S. RIEDMAN

 

 

MOTION TO STRIKE PORTIONS OF THE COMPLAINT FILED BY PLAINTIFFS BY NATIONSTAR MORTGAGE, LLC AND MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.

 

 

·         This matter is moot.  This case was dismissed without prejudice on July 2, 2014. 

 

 

DEMURRER TO COMPLAINT of RAMOS BY NATIONSTAR MORTGAGE,

LLC AND MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.

 

 

·         This matter is moot.  This case was dismissed without prejudice on July 2, 2014. 

 

_____________________________________________________________________

9:00

8

CIV 528017       JANE DOE VS. CALIFORNIA DEPARTMENT OF MOTOR VEHICLES,

                   ET AL.

 

 

JANE DOE                              EMILY C. HOSTAGE

CALIFORNIA D.M.V.                     KAMALA D. HARRIS

 

 

DEMURRER TO COMPLAINT of DOE BY CALIFORNIA DEPARTMENT OF MOTOR VEHICLES AND DEWAYNE PRICE

 

 

·         The Demurrers as to the 1st Cause of Action and the 2nd Cause of Action are OVERRULED.  Plaintiff alleged that the DMV is a business establishment for the purposes of Civil Code 51 (Comp., par. 37) and alleged that the DMV is a government agency that administers vehicle registration and drivers’ licensing for the State of California.  The demurring defendant (Department of Motor Vehicles) has the burden of demonstrating that, at the pleading stage, the DMV is not a business establishment under the Unruh Act.  Defendant did not meet its burden; the Court notes the scarcity of cases on the subject and relies upon the words of the statute that it applies to “all business establishments of every kind whatsoever.” 

 

·         The Demurrers as to the 3rd Cause of Action (Violation of the Ralph Act, Civil Code § 51.7), 4th Cause of Action (Violation of Information Practices Act, Civil Code § 1798) and 6th Cause of Action (Negligent Infliction of Emotional Distress) are OVERRULED.

 

·         The Demurrer as to the 5th Cause of Action (Invasion of Privacy) is SUSTAINED WITH LEAVE TO AMEND as to this claim under California Constitution Article 1, Section 1 for failure to allege facts sufficient to constitute a cause of action particularly with respect to the relief sought; Plaintiff is also granted leave to allege a cause of action pursuant to the common law invasion of privacy should she so desire. 

 

·         The Demurrer as to the 6th Cause of Action (Intentional Infliction of Emotional Distress) is OVERRULED for the same reasons stated above.

 

·         Plaintiff’s amended pleading, if any, shall be filed and served 15 days after service of Notice of Entry of Order.

 

 

·         Demurring party is directed to prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court.  The order is to be submitted directly to Judge Elizabeth K. Lee, Department 17.

 

_____________________________________________________________________

9:00

9

CLJ 524135       AMERICAN EXPRESS CENTURION BANK VS. RAFAEL ESPINOZA

 

 

AMERICAN EXPRESS CENTURION BANK       JONATHAN P. SIBAYAN

RAFAEL ESPINOZA                       NANCY M. CONWAY

 

 

MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION OF ISSUES BY

AMERICAN EXPRESS CENTURION BANK AGAINST RAFAEL ESPINOZA

 

 

·         Plaintiff American Express Centurion Bank’s unopposed Motion for Summary Judgment is GRANTED.  Plaintiff has met its initial burden pursuant to CCP § 437c(p)(1) through the written credit card application and agreement, the invoices and billing records for the account and the declaration of Richard Kier, their designated agent.  Defendant has not created any triable issues of material fact in response. 

 

·         Judgment for Plaintiff as to account xxxx-xxxx-xxxx-1006 in the amount of $2,476.11 principal and costs of $819.50 is so ordered. 

 

·         Moving party is directed to prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court.  The order is to be submitted directly to Judge Elizabeth K. Lee, Department 17.

 

_____________________________________________________________________

9:00

10

CLJ 526485       UNIFUND CCR, LLC VS JENNY B. NAJERA

 

 

UNIFUND CCR, LLC                      KENNETH J. MIELE

JENNY B. NAJERA                       PRO/PER

 

 

MOTION FOR ORDER TO DEEM MATTERS ADMITTED BY UNIFUND CCR, LLC

 

 

·         Plaintiff Unifund CCR, LLC’s Motion to Deem Matters Admitted is GRANTED pursuant to CCP § 2033.280.  All those matters set forth in Plaintiff’s Request for Admissions [Set 1] dated April 14, 2014 are hereby deemed admitted.

·         Moving party is directed to prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court.  The order is to be submitted directly to Judge Elizabeth K. Lee, Department 17.

 


 

 

In the Superior Court of the State of California

In and for the County of San Mateo

 

Presiding Judge Law and Motion Calendar

Judge: HONORABLE ROBERT D FOILES

Department 21

 

400 County Center, Redwood City

Courtroom 2J

 

JULY 18, 2014

 

If you plan to appear on any case on this calendar,

 you must call (650) 261-5121 before 4:00 p.m. and you must give notice also before 4:00 p.m. to all parties of your intent to appear pursuant to California Rules of Court 3.1308(a)(1).

 

Case                   Title / Nature of Case

9:00

1

CIV 523098       TRESTLE GLEN ASSOCIATES VS. SEGUE CONSTRUCTION, INC.

 

 

TRESTLE GLEN ASSOCIATES               PATRICK P. GUNN

SEGUE CONSTRUCTION, INC.              MARK COLLINSWORTH

 

 

HEARING RE: STATUS OF SPECIAL MASTER

 

 

·         This matter is continued 90 days until Friday, October 17, 2014, at 9:00 A.M. in Department PJLM.  

 


 

 

 

 


POSTED:  3:00 PM

 

© 2014 Superior Court of San Mateo County