April 17, 2015
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 JOSEPH C. SCOTT

Department 25

 

400 County Center, Redwood City

Courtroom 2G

 

Friday, April 17, 2015

 

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 520276       MELANIE LEE VS. KRISTINE REYES ET AL

 

 

MELANIE LEE                           WILLIS C. SILVERTHORNE

KRISTINE REYES                        CHRISTINA E. KIM

 

 

MOTION FOR ORDER COMPELLING RESPONSES TO FORM INTERROGATORIES AND FOR AN ORDER IMPOSING MONETARY SANCTIONS BY KRISTINE REYES

 

 

  • The Motion for an Order Compelling Response to Form Interrogatories is DENIED.  Defendant has not provided sufficient proof that the motion was served on Plaintiff in compliance with CCP §1005.  Mail service on March 23, 2015 would not have provided the notice required by the statute. 
  • In addition, Defendant has not established that plaintiff failed to respond to the discovery at issue.  The Kim declaration states that plaintiff has not responded to form interrogatories but the discovery allegedly served on her is a supplemental interrogatory.

 

  • 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.

 

 

 

MOTION FOR ORDER COMPELLING RESPONSES TO REQUEST FORPRODUCTION AND

INSPECTION OF DOCUMENTS AND OTHER TANGIBLE THINGS AND FOR AN ORDER IMPOSING MONETARY SANCTIONS BY KRISTINE REYES

 

 

 

  • The Motion for an Order Compelling Response to Request for Production of Documents is DENIED.  Defendant has not provided sufficient proof that the motion was served on Plaintiff in compliance with CCP §1005.  Mail service on March 23, 2015 would not have provided the notice required by the statute.

 

  • In addition, Defendant has not established that plaintiff was served with the discovery.  The Kim declaration states that the discovery was propounded by her office but no proof of service has been provided.  Ex. A to the declaration includes only a service list with no actual declaration attesting to the service.  Moreover, the copy of the request appears to be incomplete as it consists only of a sentence fragment that makes no actual request.

 

  • 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 521687       TINA MARIE HOLEMAN VS. ENA MARIA LAL

 

 

TINA MARIE HOLEMAN                    DAVID W. WESSEL

ENA MARIA LAL                         BRIAN J. MCSHANE

 

 

MOTION FOR ORDER REOPENING DISCOVERY REGARDING UPS' LIABILITY, CLAIM AGAINST UPS FOR EXEMPLARY DAMGES COMPELLING THE DEPOSITION OF UPS AND COMPELLING PRODUCTION AND REQUEST FOR AWARD OF SANCTIONS AGAINST UPS AND ITS LAWYERS BY TINA MARIE HOLEMAN

 

 

·         The Plaintiff’s Motion for Order Reopening Discovery re: UPS’ Liability and Claim against UPS for Exemplary Damages, Compelling the Deposition of UPS, and Compelling Production and for Sanctions against UPS and its Lawyers is DENIED WITHOUT PREJUDICE.

 

·         A second day of deposition of Mr. Keeling and a deposition of the UPS Automotive Fleet Manager are set for dates in late April, therefore, no Court order is necessary.

 

·         The requests for sanctions are DENIED.

      

·         If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, moving party shall 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 written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.

 

 

MOTION FOR SUMMARY JUDGMENT AS TO FIRst Amended COMPLAINT BY UNITED PARCEL SERVICE, INC

 

 

·         Continued to May 20, 2015.

 

 

_____________________________________________________________________


9:00

3

CIV 522390       ANDY SABERI VS. SAEED GHAFOORI ETAL

 

 

ANDY SABERI                           BEHROUZ SHAFIE

SAEED GHAFOORI                        ORESTES A. CROSS

 

 

MOTION FOR CLARIFICATION OF THE COURT'S MARCH 23, 2015 ORDER GRANTING IN PART AND DENYING IN PART CROSS-COMPLAINANT'S MOTION TO COMPEL THE DEPOSITION OF CROSS-DEFENDANT THOMAS SABERI AND PLAINTIFF/CROSS-DEFENDANT ANDY SABERIETC BY SAEED GHAFOORI

 

 

  • This Motion for Clarification is asking the Court for an advisory opinion, which is DENIED. The prior order was clear when it did not require the deponent’s to bring documents to the deposition because the motion was defective in that regard.

 

  • 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.

 

 

MOTION FOR LEAVE TO FILE SECOND AMENDED CROSS-COMPLAINT BY SAEED GHAFOORI

 

  • The Motion for Leave to File a Second Amended Cross-complaint is GRANTED and Cross-complainant shall file and serve his proposed Second Amended Cross-complaint within 15 days after service of Notice of Entry of Order.

 

  • Requests for trial continuances should be made to the Presiding Judge.

 

  • 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 Joseph C. Scott, Department 25.

 

 

HEARING: MOTION RE: MOTION TO COMPEL DEPOSITION RESPONSES OF

DEPONENT THOMAS SABERI AND FOR AWARD OF ATTORNEYS’ FEES AND COSTS BY SAEED GHAFOORI

 

 

  • The Motion to Compel Deposition Responses by Thomas Saberi is GRANTED in part and DENIED is part as follows. Mr. Ghafoori has been granted leave to file his Second Amended Cross-complaint which alleges the attorney/client relationship between Mr. Ghafoori and Thomas Saberi, as well as setting forth causes of action based upon that relationship. The continued deposition of Thomas Saberi shall be scheduled at a time after the Second Amended Cross-complaint has been filed and served; at said deposition Mr. Ghafoori’s attorney’s examination may include any and all issues raised in the new pleading. The new pleading moots the concerns raised in this Motion.

 

·        The requests for sanctions by each side are DENIED. Given what can be described as a lack of cooperation between the parties it is impossible to ascertain if either side should be entitled to sanctions.

 

  • 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 Joseph C. Scott, Department 25.

 

 

 

_____________________________________________________________________


9:00

4

CIV 523649       ESTATE OF MARJAN BROWN VS. SETON MEDICAL CENTER

 

 

ESTATE OF MARJAN BROWN                PAUL A MATIASIC

SETON MEDICAL CENTER                  CYRUS A. TABARI

 

 

MOTION FOR SUMMARY JUDGMENT AS TO FIRST AMENDED COMPLAINT OF BROWN

FILED BY DOROTHY MCNOBLE, M.D.

 

 

·         Moot.  Action was dismissed on March 13, 2015.

 

 

_____________________________________________________________________


9:00

5

CIV 527856       LANCE H. PEREZ VS. BANK OF AMERICA, N.A.

 

 

LANCE H. PEREZ                        VINCE M. VERDE

BANK OF AMERICA, N.A.                 SHARON STEWART

 

 

JOINDER OF THE BANK OF NEW YORK, RESURGENT MORTGAGE SERVICING, NEW PENN FINANCIAL, LLC. TO IN MOTION FOR JUDGMENT ON THE PLEADINGS

 

 

·         Continued to May 8, 2015 by stipulation.

 

 

_____________________________________________________________________


9:00

6

CIV 529083       LYN SARABIA VS. CINDY NORLIN

 

 

LYN SARABIA                           MICHAEL R BRACAMONTES

CINDY NORLIN                          WENDY M. SCHENK

 

 

MOTION TO ALLOW DISCOVERY OF DEFENDANT’S FINANCIAL CONDITION BY LYN SARABIA

 

 

  • Plaintiff’s  unopposed  Motion to Allow Discovery of Defendant’s Financial Condition is GRANTED.  Based upon Plaintiff’s supporting evidence, the Court finds that Plaintiff has established a substantial probability of prevailing on her punitive damages claim.

 

  • 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 Joseph C. Scott, Department 25.

 

 

 

_____________________________________________________________________


9:00

7

CIV 530422       SANJAY SHAH, M.D. VS. EL CAMINO CHARTER LINES, INC

 

 

SANJAY SHAH, M.D.                     PAGE R. BARNES

EL CAMINO CHARTER LINES, INC.         WALTER E. SHJEFLO

 

 

MOTION TO COMPEL THE DEPOSITION AND PRODUCTION OF DOCUMENTS OF SANJAY SHAH BY EL CAMINO CHARTER LINES, INC

 

 

·         Moot. Case dismissed April 1, 2015.

 

 

_____________________________________________________________________


9:00

8

CIV 530582       LJUVICA KOLICH ETAL VS. MARCIA G. BARKOFF, ET AL.

 

 

LJUVICE KOLICH                        SCOTT D. RIGHTHAND

MARCIA G. BARKOFF                     PAUL R. BALERIA

 

 

MOTION TO STRIKE BY MARCIA G BARKOFF, ET AL.

 

 

·         Continued to May 11, 2015 by stipulation.

 

 

_____________________________________________________________________


9:00

9

CLJ 210886       DANIEL PANDA THOMAS, JR. VS. ALEYAMMA THOMAS

 

 

DANIEL PANDA THOMAS, JR.              SCOTT E. HARTLEY

ALEYAMMA THOMAS                       RANJAN K. CHARAN

 

 

DEMURRER TO COMPLAINT (UNLAWFUL DETAINER) BY ALEYAMMA THOMAS

 

 

  • The Demurrer to the Complaint by Defendant Aleyamma Thomas is SUSTAINED without leave to amend.  The complaint fails to sufficiently allege a landlord-tenant relationship.  In addition, there is another action pending, PRO 125124, in which title to the subject premises is a matter of dispute.

 

  • 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 Joseph C. Scott, Department 25.

 

 

_____________________________________________________________________


9:00

10

CLJ 521815       MSW CAPITAL, LLC. VS. ERNESTO S. FLORESCA

 

 

MSW CAPITAL, LLC.                     FLINT C. ZIDE

ERNESTO S. FLORESCA                   PRO/PER

 

 

MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION OF ISSUES BY

MSW CAPITAL, LLC.

 

 

  • The Motion by MSW Capital 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 Lawrence Whipple, their designated agent.  Defendant has not created any triable issues of material fact in response.  Defendant has not filed a memorandum of points and authorities, declaration or separate statement in opposition to the motion.  Judgment for Plaintiff in the amount of $11,942.90 principal, and court costs in the amount of $1,207.00.

 

  • 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 Joseph C. Scott, Department 25.

 

 

_____________________________________________________________________


1:45

11

CIV 456550       KRISTINE HOPPE VS. BEBE STORES, INC.

 

 

KRISTINE HOPPE                        A. NICHOLAS GEROGGIN

BEBE STORES, INC.                     MICHAEL HOFFMAN

 

 

APPROVAL FOR PRELIMINARY SETTLEMENT BY BEBE STORES, INC.

 

 

·         Appear.

 

 

_____________________________________________________________________


 

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 2L

 

Friday, April 17, 2015

 

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

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

4. 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

2:00

1

CIV 525068       ALPHA CARD SYSTEMS, LLC. VS. JOLLY TECHNOLOGIES,

                   INC.

 

 

ALPHA CARD SYSTEMS, LLC.              MATTHEW A. HAULK

JOLLY TECHNOLOGIES, INC.              ENOCH H. LIANG

 

 

MOTION FOR MONETARY SANCTIONS AND FOR AN ORDER TO SHOW CAUSE RE: CONTEMPT BY JOLLY TECHNOLOGIES, INC.

 

 

·         The Court reminds Plaintiff’s attorneys of CRC Rule 3.1113(f) which sets forth that any memorandum exceeding 10 pages must include table of contents and table of authorities.

 

·         The Motion is DENIED to the extent Alpha Card did not produce documents in native format. The Order does not specify that production of documents must be in native format. Production of documents in non-native format is not contrary to or inconsistent with the Order.

 

·         The Motion is DENIED to the extent it contends that Alpha Card failed to search the email accounts of the entire “Executive and Management team.” The evidence does not establish that Sales Director David Leivick or any persons other than Josh Daniels and Dusty Poole are members of the Executive and Management team. The Court cannot determine with reasonable certainty that searching and producing documents of only Mr. Poole and Mr. Daniels is contrary to or inconsistent with the Order.

 

·         The Motion for Sanctions is DENIED WITHOUT PREJUDICE, and the Motion for Order to Show Cause is GRANTED as to the portion of the November 5, 2014, order directing the search of email accounts of “any employee involved in the manual reactivation process for the 50 software license numbers . . . for records responsive to” Jolly’s sixteen requests for production. Alpha Card shall submit evidence of its compliance with the Court’s November 5, 2014, Order, at p.2, paragraph 1, to the extent it requires “search the e-mail accounts . . . of any employee involved in the manual reactivation process for the 50 software license numbers, provided by Jolly pursuant to Section 2 of this Order, for records responsive to Requests Nos. 1, 2, 4, 5, 6, 9, 10, 11, 11[ sic] , 12, 13, 14, 15, 16, 17, 18 and 19 and to produce all non -privileged responsive records . . . .”

 

·         Alpha Card shall submit its evidentiary showing no later than May 8, 2015. The parties shall schedule a hearing with the Court for a date no later than June 30, 2015. Any responsive papers by Jolly shall be filed and served no later than five court days before the hearing, or 10 court days after Alpha Card’s filing its evidentiary showing, whichever is later.  The Court will determine whether a finding of contempt or a monetary sanction shall issue, or both.

 

·         Alpha Card’s Request for Judicial Notice in Support of Opposition to Motion for Sanctions and Supplemental Request for Judicial Notice Re: Jolly Technologies, Inc. Motion for Monetary Sanctions is GRANTED.

 

  • 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.

 

 

_____________________________________________________________________


2:00

2

CIV 527902       JOHN E. FERRY VS. LAURA J. WONS  

 

 

JOHN E. FERRY                        

LAURA J. WONS                        

 

 

RENEWED AND AMENDED MOTION TO COMPEL DEFENDANT LAURA J. WONS TO PROVIDE RESPONSES TO PLAINTIFF'S SPECIAL INTERROGATORIES, SET ONE

CCP §§ 1008(B) AND 2020.290(B))

 

 

·         Plaintiff John Ferry’s renewed Motion and Amended Motion to Compel Defendant to Provide Responses to Plaintiff’s Special Interrogatories is DENIED. The Special Interrogatories relate to the 3rd – 5th causes of action that have been stayed by the court and are not designed to seek relevant or admissible information regarding the 1st and 2nd causes of action which have not been stayed. Further, plaintiff appears to now be attempting to have the court reconsider the order of bifurcation. This is not properly before the court because the notice of renewed motion merely references his attempt to compel defendant to respond to the special interrogatories.

 

 

 

RENEWED MOTION FOR RECONSIDERATION OF ORDER AFTER HEARING ON DEFENDANT LAURA J. WONS' MOTION TO QUASH PLAINTIFF'S DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS DIRECTED TO JP MORGAN CHASE BANK, N.A. (CCP § 1008(B))

 

 

·         Plaintiff John Ferry’s Renewed Motion and Motion for Reconsideration of Order after Hearing on Defendant’s Motion to Quash Plaintiffs Deposition Subpoena is DENIED.  Under CCP 1008(b) the moving party is required to show by affidavit what application was made before, when and to what judge, what order or decisions were made and what new or different facts, circumstances or law are claimed to be shown. There is no attempt here to meet the requirements of CCP §1008(b) by demonstrating new or different facts, circumstances or law or why they could not have been presented at the original hearing.

 

  • Moving party is directed to prepare a written order consistent with the Court’s rulings 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.

 

 

______________________________________________________________________


2:00

3

CIV 519758       APPLIED MEDICAL CORPORATION VS. T. PETER THOMAS,

                   ET AL.  

 

 

APPLIED MEDICAL CORPORATION           RICHARD J. GRABOWSKI

T. PETER THOMAS                       SUSAN J. HARRIMAN

 

 

MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY DJUDICATION BY T. PETER THOMAS

 

 

·         Defendants T. PETER THOMAS; REID DENNIS; and INSTITUTIONAL VENTURE PARTNERS IV, LP (“IVP”)’s Motion for Summary Judgment of Plaintiff APPLIED MEDICAL CORPORATION’s Second Amended Complaint is DENIED on the ground that there are several triable issues of material fact, as set forth below, which would preclude a grant of summary judgment.  Code Civ. Proc. §437c(c).

 

·         Defendants’ Motion, in the Alternative, for Summary Adjudication is GRANTED IN PART and DENIED IN PART, as follows:

 

·         GRANTED as to the First Cause of Action for Breach of Contract.  To prevail on its breach of contract cause of action, Plaintiff must prove that Thomas actually breached some express provision of his stock option agreements.  See San Mateo Union High School District v. County of San Mateo (2013) 213 Cal.App.4th 418, 439 (setting forth elements of a breach of contract claim). 

 

·         This cause of action alleges that Defendant THOMAS failed to timely return an executed stock assignment form.  It is undisputed that Thomas returned the form on September 10, 2012, shortly after the instant lawsuit was filed.  Plaintiff now claims that Thomas breached the stock options agreements by not returning the form sooner.  However, the agreements themselves do not impose any deadline on Thomas’ return of paperwork transferring ownership of the shares to Plaintiff, as acknowledged by Defendants’ own Chief Accounting Officer, Kari Moore.  (UMF No. 48.) 

 

·         Plaintiff further argues that Thomas expressly repudiated the agreements, thus establishing a breach.  However, express repudiation requires a “clear, positive, unequivocal refusal to perform” a contract obligation.  Taylor v. Johnston (1975) 15 Cal.3d 130, 137.  The evidence does not suggest that Thomas expressly repudiated Plaintiff’s contractual right to repurchase the shares; indeed the only dispute was over the repurchase price offered by Plaintiff. 

 

·         This cause of action further fails for the lack of any legally cognizable harm as a result of Thomas’ alleged misconduct.  San Mateo Union High School Dist., supra at 440; Lueter v. State of California (2002) 94 Cal.App.4th 1285, 1302-03.  The three categories of damages Plaintiff seeks to assert are not recoverable.  First, Plaintiff claims attorney’s fees in the investigation, preparation, and filing of the instant lawsuit, yet does not cite to any provision in the stock option agreements providing for attorney’s fees. 

 

·         Second, Plaintiff claims it was injured by statements made in a March 6, 2012 from Defendants’ attorney, questioning Plaintiff’s repurchase price determination.  Plaintiff claims it responded by performing time-consuming and costly procedures to support its fair market value determination.  However, any statements made in counsel’s correspondence is protected by the litigation privilege of Civil Code § 47, which “has been broadly applied to demand letters and other prelitigation communications by attorneys.”  Blanchard v. DirecTV, Inc. (2004) 123 Cal.App.4th 903, 919.

 

·         Third, Plaintiff claims it is entitled to nominal damages pursuant to Civil Code §3360.  However, this does not excuse Plaintiff from establishing that it suffered actual harm as a result of Thomas’ alleged breach. “Under California law, a breach of contract claim requires a showing of appreciable and actual damage.”  Ruiz v. Gap (9th Cir. 2010) F.App’x.689, 692. 

 

·         GRANTED as to the Third Cause of Action for Conversion and Fourth Cause of Action for Aiding and Abetting Conversion, on the ground that Plaintiff is unable to prove damages, as set forth above.

 

·         GRANTED as to the Eighth Cause of Action for Declaratory Relief.  This cause of action was asserted in Plaintiff’s original Complaint and sought a declaration as to Plaintiff’s rights and Thomas’ obligations with respect to the repurchase of Thomas’ shares.  This issue is now moot, as Thomas returned the duly executed stock assignment form on September 10, 2012.  “Declaratory relief generally operates prospectively to declare future rights, rather than to redress past wrongs.  It serves to set controversies at rest before they lead to repudiation of obligations, invasion of rights or commission of wrongs.  In short, the remedy is to be used in the interests of preventive justice, to declare rights rather than execute them.” Jolley v. Chase Home Financing, LLC (2013) 213 Cal.App.4th 872, 909.  Consequently, where a plaintiff “has a fully matured cause of action for money, he must seek damages, and not pursue a declaratory relief claim.”  Id. at 909-910.

 

·         DENIED as to the Fifth Cause of Action for Fraudulent Concealment; Sixth Cause of Action for Aiding and Abetting Fraudulent Concealment; and Seventh Cause of Action for Breach of Fiduciary Duty, on the ground that the following triable issues of material fact exist:

 

o   Whether these causes of action are barred by the three-year statute of limitations for actions sounding in fraud.  (UMF Nos. 93-105);

o   Whether IVP had any duty to disclose the allegedly concealed information.  (UMF Nos. 108-112); and 

o   Whether Dennis substantially assisted in or encouraged the concealment of any material fact. (UMF Nos. 113-133.) 

 

·         Plaintiff’s Evidentiary Objections are OVERRULED as to Objections 1-8. 

 

·         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.

 

 

______________________________________________________________________

 

 

 

 


POSTED:  3:00 PM

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