July 26, 2017
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, July 21, 2017

 

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

 

 

 

 

 

 

 

 

 

9:00

Line: 1

16-CIV-02362     JIAN-MING "SCOTT" ZHAO vs. RELAYRIDES, INC., et al.

 

 

JIAN-MING "SCOTT" ZHAO                 JOSEPH W. CARCIONE, JR

RELAYRIDES, INC.                       MICHELE FLOYD

 

 

MOTION FOR LEAVE TO FILE AMENDED COMPLAINT/ANSWER

TENTATIVE RULING:

 

This matter is dropped from calendar as an amended complaint was filed.

 

 



 

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Line: 2

16-CIV-02941     CHERIF MEDAWAR, et al. vs. NYLE MAMEESH, et al.

 

 

CHERIF MEDAWAR                         NIALL P. MCCARTHY

NYLE MAMEESH                           MICHAEL D. LIBERTY

 

 

MOTION TO COMPEL PLAINTIFF AND CROSS-DEFENDANT TO PROVIDE FURTHER RESPONSES TO SECOND SPECIAL INTERROGATORIES, ETC.

TENTATIVE RULING:

 

Defendants and Cross-Complainants Nyle Mameesh’s and NEC Holdings’ motion to compel Plaintiff Cherif Medawar to provide further responses to Defendants’ Special Interrogatories, Set Two, to provide the original responses and verifications, and requesting sanctions, is addressed as follows:

 

The Motion to Compel further responses to Interrogatories Nos. 22-35 is GRANTED.  While the Court finds no bad faith on the part of Plaintiff or his counsel, Plaintiff admits he mistakenly served the responses late, which by rule waives objections.  Code Civ. Proc. Sect. 2030.290(a). 

 

Interrogatory Nos. 22-24 ask Plaintiff to provide all facts supporting Plaintiff’s allegation that the Maple St., Clay St., and Washington St. properties came in over budget, including an explanation of how Plaintiff arrived at the over-budget figure.  Plaintiff’s responses do not adequately explain how the figures were calculated.  (See, e.g., Plaintiff’s SAC, Par. 45, alleging the Maple St. property came in nearly 100% over-budget, at $5,657,060.)  Plaintiff’s responses should explain how that figure was reached, showing the numbers and calculations.  Simply stating $5,657,060 was the cost “after the project managers submitted all invoices and expenses” is not sufficient.  Defendants are entitled to know how Plaintiff arrived at that figure.  The same analysis applies to Interrogatory Nos. 23-24.   

 

The responses to Interrogatory Nos. 25-35 are adequate at this stage of the case.  However, because the responses were late, the objections were waived.  Plaintiff shall serve a further response to each of these interrogatories, without objections (which may mean serving the same response, but without objections). 

 

As to Interrogatory No. 32, Plaintiff’s response identifies a number of Mr. Mameesh’s alleged duties relating to investor relations, but concludes by stating: “Since 2009, Mameesh performed a multitude of duties regarding the properties, including the accounting of each project and the accounting of the MIGSIF, LLC.”  If Plaintiff contends Mr. Mameesh had any duties relating to investor relations other than those already identified, they should be identified in Plaintiff’s further response. 

 

Plaintiff shall serve further responses, without objections, to Interrogatories Nos. 22-35, by Aug. 7, 2017.  Plaintiff shall serve the original responses (not copies).  See Code Civ. Proc. Sect. 2030.280(b); Weil & Brown:  Civ. Proc. Before Trial, Sect. 8:1115: 8:1130. 

 

The request for original verifications is DENIED AS MOOT, given Plaintiff’s representation they were recently provided to Mr. Liberty’s office. 

 

The request for sanctions is DENIED.  Most of Plaintiff’s responses were adequate at this stage of the case.  They were served only one day late, due to a calendaring error.  The Court also notes Defendants have served Plaintiffs with a large volume of written discovery requests in the past few months, and it appears Plaintiffs have been diligent in providing timely responses.  The Court declines to award sanctions under these circumstances. 

 

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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Line: 3

17-CIV-01605     ENABLEDWARE, LLC., et al. vs. JACK TURNER, et al.

 

 

ENABLEDWARE, LLC.                      SAMIRA AMATO

STEVE BROWNING                         MARK C. WATSON

ROBERT LINDLOW                         PRO PER

 

MOTION TO STRIKE cross complaint (anti-slapp)

TENTATIVE RULING:

 

Plaintiff / Cross-Defendant ENABLEDWARE, LLC’s Special Motion to Strike is DENIED WITHOUT PREJUDICE.  The Proof of Service filed with the Court lists an incorrect address for Cross-Complainant ROBERT LINDOW, and further was not signed under penalty of perjury under the laws of the State of California.  Code Civ. Proc. § 2015.5. 

 

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

LineS: 4 - 8

CIV537691     AMBER LAUREL BAPTISTE VS. MICHAEL LEWIS GOGUEN

 

 

AMBER LAUREL BAPTISTE                  PATRICIA L. GLASER

MICHAEL LEWIS GOGUEN                   DIANE M. DOOLITTLE

 

 

4. MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION NUMBERS 82 AND 83

TENTATIVE RULING:

 

This matter is continued to August 14 at 9:00 a.m. in the Law and Motion Department.

 

 

5. MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS

TENTATIVE RULING:

 

This matter is continued to August 14 at 9:00 a.m. in the Law and Motion Department.

 

 

 

6. MOTION TO COMPEL INTERROGATORIES (FROM A SPECIAL SET NO. THREE)

TENTATIVE RULING:

 

This matter is dropped from calendar as moot pursuant to stipulation of the parties.

 

 

7. MOTION TO COMPEL ADMISSIONS (SET TWO)

TENTATIVE RULING:

 

This matter is continued to August 14 at 9:00 a.m. in the Law and Motion Department.

 

 

 

8. MOTION TO COMPEL ADMISSIONS (SET ONE)

TENTATIVE RULING:

 

This matter is dropped from calendar as moot pursuant to stipulation of the parties.

 



 

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Line: 9

CLJ534024     IN RE: $1,173.00

 

 

PEOPLE OF THE STATE OF CALIFORNIA       DISTRICT ATTORNEY

MATTHEW LUSK                           CHARLES J. SMITH

 

 

MOTION FOR SUMMARY JUDGMENT

TENTATIVE RULING:

 

The Motion of Plaintiff People of the State of California (“Plaintiff”) for Summary Judgment, is DENIED WITHOUT PREJUDICE.

 

First, it appears that this motion was not properly served.  The proof of service for this motion shows that it was served on Interested Party Matthew Lusk (“Mr. Lusk”), but the court’s records reflect that Mr. Lusk is still represented by counsel Charles Smith. 

 

Second, Plaintiff failed to provide adequate notice of this motion.  A motion for summary judgment shall be served at least 75 days before the hearing, which is increased by 5 days for service by mail. (C.C.P. sec. 437c(a)(2).)  Plaintiff served this motion by mail on May 5, 2017, which is less than 80 days before the hearing.

 

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

Line: 10

CLJ534451     IN RE: $1,324.00

 

 

PEOPLE OF THE STATE OF CALIFORNIA       AMARRA LEE

WILLIAM ESCOBAR JR.                    PRO/PER

 

 

MOTION FOR SUMMARY JUDGMENT

TENTATIVE RULING:

 

The Motion of Plaintiff People of the State of California (“Plaintiff”) for Summary Judgment, is GRANTED.  Plaintiff has met its burden of showing there is no defense to this action.  (C.C.P. §437c(p)(1).)  The evidence establishes all

of the elements of a cause of action for forfeiture of the seized property.  (See Plaintiff’s Undisputed Material Facts nos. 1-5, and Lee Decl., Exhs. B, C & D.)  Further, Interested Party William Escobar Jr. has not opposed this motion, and therefore fails to raise a triable issue of material fact to this cause of action or a defense thereto.   (See C.C.P. §437c(p)(1).)

 

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.

 



 

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 susan irene etezadi

Department 18

 

400 County Center, Redwood City

Courtroom 2L

 

Friday, July 21, 2017

 

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

 you must call (650) 261-5118 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

Line: 1

17-CIV-02240     LINDSAY GROTEWIEL Vs. AVINGER, INC., et al.

 

 

LINDSAY GROTEWIEL                      FRANCIS A. BOTTINI, JR.

AVINGER, INC.

 

 

 

Complex Case Status Conference

TENTATIVE RULING:

 

This matter was removed to Federal Court in June of 2017. The matter has not been remanded to State Court. Therefore, the Complex Case Status Conference is continued for approximately 90 days to October 24, 2017.

 



 

 

 

In the Superior Court of the State of California

In and for the County of San Mateo

 

Special Set Calendar

Judge: Honorable V. RAYMOND swope

Department 23

 

400 County Center, Redwood City

Courtroom 7B

 

July 21, 2017

 

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

1.  YOU MUST CALL (650) 261-5123 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.  

 

Case                   Title / Nature of Case

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Line: 1

16-PRO-00463     ANN DOODY TRUST

 

 

ALLEN M. PROWS                         JAMES PAUL GREEN

JOSEPH CASEY                           DARIO DE GHETALDI

 

 

Demurrer TO AMENDED PETITION OF ALLEN M. PROWS TO DETERMINE LIABILITY OF SUCCERSSOR TRUSTEE IN INDIVIDUAL CAPACITY AS OPPOSED TO TRUST OBLIGATION

 

TENTATIVE RULING:

 

The Demurrer to the Amended Petition of Allen M. Prows by Joseph Casey in his individual capacity is SUSTAINED WITH LEAVE TO AMEND.

 

The Amended Petition does not name any specific person as petitioner or respondent and fails to allege with specify the capacity in which each potential respondent is being held liable.

 

In action CIV 523801, this court [Hon. Buchwald] entered judgment in favor of Allen M. Prows in the amount of $173,053.56 “only as against the Ann Doody Trust through Joseph Casey in his capacity as Trustee.”  Judgment was entered September 20, 2016, Notice of Entry of Judgment was entered September 29, 2016, and no Notice of Appeal has been filed in this matter.  Therefore, the September 20, 2016 judgment is final as to all parties.

 

On its own motion, this court takes judicial notice that in action CIV 523801, Plaintiff Allen M. Prows brought a motion to have the judgment awarded against Joseph Casey in his individual capacity as well as against the trust.  Joseph Casey, purporting to act in his capacity as trustee, opposed the motion on the grounds that he had not been named in his individual capacity, had not been served in his individual capacity, and that in any event, he was not a trustee at the time the acts alleged in that action were performed.  The Opposition expressly argued that: “complainant should not be permitted to impute liability without having afforded Joseph Casey the ability to provide himself, as an individual, his day in Court to defend himself at trial, rather than only the Trust.”

 

California courts have held that a “claim may be asserted against the trust by proceeding against the trustee in the trustee’s representative capacity, whether or not the trustee is personally liable on the claim.” (Haskett v. Villas at Desert Falls (2001) 90 Cal.App.4th 864, 880; Galdjie v. Darwish (2003) 113 Cal.App.4th 1331, 1349).  Courts have held that “the question of liability as between the trust estate and the trustee personally may be determined in the same action or in a separate hearing.” (Galdjie v. Darwish (2003) 113 Cal.App.4th 1331, 1348 fn 5.)  Joseph Casey’s opposition to the motion to establish personal liability filed in CIV 523801 appears to have invoked the separate proceeding option.

 

While there is no dispute that Joseph Casey appeared in action CIV 523801 in his capacity as trustee, his decision to argue the merits of personal liability, i.e. that he was not acting as trustee, the same defense raised here, would appear to be a general appearance by Joseph Casey in his individual capacity in CIV 523801. (See e.g.  Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 52 [“if a defendant seeks any affirmative relief on the merits, the application may be deemed a general appearance”].) Since the judgment in action CIV 523801 is final, and since the Judgment in that matter against the trust expressly holds the trust liable for actions by Joseph Casey as trustee, it would appear that Joseph Casey is collaterally estopped from denying that he acted as trustee when the relevant acts were performed. 

 

Accordingly, 15 days leave to amend is granted as follows:

(1)  The Amended Petition may be amended to designate all petitioners and all respondents and the capacity in which each such respondent is being sued.

(2)  The Amended Petition asserts that Joseph Casey acted as agent for a trustee and that his acts were ratified by such trustee.  If, in the alternative, the petition seeks to hold such Trustee personally liable for the acts of Joseph Casey, then the petition may be amended to name such trustee as a respondent and state the facts that make such trustee personally liable for the acts of Joseph Casey.

(3)  If the petition seeks, in the alternative, to hold Joseph Casey personally liable for the judgment issued in action CIV 523801 on the grounds that he is collaterally estopped from disputing that he acted as trustee when the relevant acts were committed and that meets the requirements for personal liability, then those facts must be alleged in separate causes of action stating the facts establishing collateral estoppel and establishing personal liability.

(4)  If, in the alternative, the Petition seeks to hold Joseph Casey personally liable for acts of conversion or other acts performed when Joseph Casey was not a trustee, those claims may be alleged as separate causes of action. 

(5)  The statute of limitations may appear on the face of the complaint with regard to one or more causes of action.  The Petition may be amended to state facts supporting any tolling, estoppel or other grounds which Petitioner contends preclude the statute of limitations from barring a claim.

 

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POSTED:  3:00 PM

 

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