September 22, 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, September 22, 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

 

 

 

 

 

 

 

 

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17-UDL-00198     David Kong vs. Alexander Mayer, et al.

 

 

David Kong                             JAMES L. HAND

ALEXANDER MAYER                        DAVID M. KING

 

 

ALEXANDER MAYER AND JUTJARIN FAITH’S MOTION TO SET ASIDE UNLAWFUL DETAINER SETTLEMENT

TENTATIVE RULING:

 

Defendants Alexander Mayer’s and Nutjarin Faith’s “Motion to Set Aside Unlawful Detainer Settlement” is DENIED. 

 

This case involves a shared office space in Menlo Park, Ca. pursuant to an April 2016 Commercial Sublease Agreement.  Plaintiff Kong sublet a portion of the property to Defendants to operate a business called Proud Thai Massage (PTM).  It is clear from the record that the parties do not get along at all.  In March 2017, after Plaintiff filed this unlawful detainer case alleging Defendants made improper alterations to the premises, and following a JAMS mediation, the parties signed a “stipulated resolution” to their dispute, which provided that Defendants would receive certain concessions in exchange for their agreement to vacate the premises no later than Sept. 30, 2017—six months earlier than was provided for in the Sublease.  (See 4-6-17 Order, Ex. A).  After signing the Stipulation, and after the Court dismissed this case, the parties continued their strained relationship, with each side accusing the other of repeatedly violating the Stipulation.  Defendants filed motions to compel Plaintiff to comply with the agreement (and to be held in contempt), alleging Dr. Woo (Kong’s mother) was harassing and improperly communicating with Defendants’ staff members.  In June 2017, the Court found Dr. Woo had violated the Stipulation, and admonished her to have no further communications with PTM staff.  Defendants’ present motion and the supporting declarations state that on 7-5-17, Dr. Woo again improperly communicated with Defendants’ staff.  

 

Without condoning any of Plaintiff’s and/or Dr. Woo’s alleged acts, nor minimizing them, the Court finds Defendants have not met their burden of demonstrating “extrinsic fraud,” “mistake of fact,” or “surprise” under Code Civ. Proc. Sect. 473(b), and have not presented grounds to set aside the parties’ 3-30-17 Stipulation.  This is not a case involving a default Judgment; rather, the Court dismissed this case in light of the parties’ JAMS-mediated settlement agreement.  The fact that Plaintiff Kong and/or Dr. Woo may have thereafter breached terms of the Stipulation, perhaps even multiple times, does not mean Plaintiffs procured the settlement through fraud.  Defendants claim “extrinsic fraud” and “mistake of fact” under Sect. 473(b), arguing Mr. Kong and Dr. Woo both knew, when they signed the agreement in March 2017, that they would never comply with it terms, and allege Mr. Kong knew he would thereafter be unable to control his mother’s subsequent breaches.  See Civ. Code Sect. 1710(4); CACI 1902 (“False Promise”).  For purposes of Sect. 473(b), the evidence does not sufficiently establish that Plaintiff fraudulently induced Defendants to sign the agreement, or that Kong or Woo never intended to comply with it.  Nor does the evidence sufficiently establish a “mistake of fact” under Sect. 473(b) on grounds Defendants mistakenly believed Woo was capable of controlling her actions.  The Court also disagrees with Defendants’ contention Dr. Woo’s small claims courts case constitutes a “surprise” under Sect. 473(b) sufficient to void the settlement agreement. 

 

Further, from a discretionary perspective, given the parties’ strained relationship, the Court finds that vacating the Stipulation and reinstating the Lease under these circumstances would not be a just or appropriate outcome.  The Court is aware of Defendants’ contention that Plaintiff’s and Dr. Woo’s actions have damaged its business, and that Defendants have filed suit in a separate case to recover their alleged damages.  (See Complaint filed Aug. 1, 2017 in Case No. 17CIV03480).  The Court is also sympathetic to the fact Defendants now need to find new office space.  These facts, however, do not yield a different result.  

 

Plaintiff David Kong’s Objections to the Mayer Declaration are ruled upon as follows:

 

·         Obj. to Parag. 2-4.  OVERRULED.  No formal objection is stated.  The Court has reviewed the Stipulation and is not relying on Mayer’s characterization of it. 

·         Obj. to Parag. 6 (“Woo berated …”).  OVERRULED. 

·         Obj. to Parag. 7 (“Other incidents …”).  SUSTAINED.  Lacks foundation.

·         Obj. to Parag. 11 (“At the conclusion …”).  SUSTAINED.  The transcript speaks for itself.

·         Obj. to Parag. 12 (“She (the new therapist”)…).  OVERRULED. 

·         Obj. to Parag. 12 (“I have been informed … further informed …”).  SUSTAINED.  Hearsay.

·         Obj. to Parag. 15 (“Hand referred to …”).  OVERRULED.  No formal objection is stated. 

·         Obj. to Parag. 16 (“Woo sued me …”).  OVERRULED. 

·         Obj. to Parag. 17 (Kong has refused …”).  OVERRULED. 

·         Obj. to Parag. 18 (“A similar incident …”).  OVERRULED. 

 

 

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-UDL-00492    EQUITY GROWTH ASSET MANAGEMENT vs. WILFRED SHAW, et al

 

 

EQUITY GROWTH ASSET MANAGEMENT          Jak Marquez

WILFRED SHAW                           Pro/PER

 

 

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

TENTATIVE RULING:

 

Plaintiff’s unopposed motion for summary judgment is GRANTED.  Plaintiff has met its burden to show that there is no defense to the action as it has proved each element of its cause of action for unlawful detainer.  CCP §437c(p)(1). 

 

A plaintiff moving for summary judgment meets its burden of showing that there is no defense to a cause of action if it proves each element of the cause of action.  CCP §437c(p)(1).  Here, plaintiff has offered evidence sufficient to establish each of the elements of an unlawful detainer action under CCP §1161a(b)(3).

The subject property was sold to plaintiff at a trustee’s sale on May 19, 2017.  See declaration plaintiff’s CEO, Ray Grinsell at ¶2; RJN, Ex. D.  The sale was conducted pursuant to a deed of trust executed by defendant.  Id., Ex. A. 

The trustee’s deed upon sale establishes that the property was sold in accordance with Civil Code §2924 as it states that all requirements regarding the mailing, personal delivery or publication of the notice of default and notice of trustee’s sale have been complied with.  Id. at Ex. D.  This recital constitutes prima facie evidence of compliance with these requirements.  Civil Code §2924(c). With respect to a bona fide purchaser, the recital is conclusive.  Here, the Grinsell declaration states that plaintiff purchased the property for $752,000 without any knowledge of any purported irregularities in the sale process.  Id. at ¶¶2-3.  

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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CIV535154     CYPRESS INSURANCE, ET AL. VS. STATE OF CALIFORNIA, ET AL

 

 

CYPRESS INSURANCE COMPANY                   DAVID W. HUGHES

STATE OF CALIFORNIA, DEPT OF TRANSPORTATION  DAVID SULLIVAN

 

 

3. DEFENDANT’S MOTION FOR SUMMARY ADJUDICATION OF CLAIM FOR DAMAGES PURSUANT TO CODE OF CIVIL PROCEDURE §437c(t)

TENTATIVE RULING:

 

The Motion of Defendant State of California, by and through The Department of Transportation (“State”), for Summary Adjudication, is DENIED. 

 

Plaintiff Cypress Insurance Company (“Plaintiff”) and the State stipulated to cross-motions for summary adjudication pursuant to Code of Civil Procedure section 437c(t), on the following issue: “Whether the fact that Ezequiel Gomez did not file a Government Code Section 900 et. seq. claim bars CYPRESS INSURANCE COMPANY‘S [Plaintiff] recovery of damages in excess of the actual workers' compensation benefits CYPRESS INSURANCE COMPANY [Plaintiff] paid, or becomes obligated to pay to, or on behalf of, Ezequiel Gomez.”  (See Notice of Motion for Summary Adjudication of Claim of Damages, 2:3-6.) 

 

Compliance with the government claims statute is mandatory, and failure to file a claim is fatal to the cause of action.  (Pacific Tel. & Tel. Co. v. County of Riverside (1980) 106 Cal.App.3d 183, 188.)  Where there has been an attempt to comply but the compliance is defective, the test of substantial compliance controls.  (Id.)  Under the substantial compliance test, the court must ask whether sufficient information is disclosed on the face of the filed claim to reasonably enable the public entity to make an adequate investigation of the merits of the claim and to settle it without expense of a lawsuit.  (Id.)  Substantial compliance however, cannot be predicated upon no compliance.  (Id.) 

 

The principal purpose of the claims requirement is to give notice to the public entity in order that it be afforded a timely opportunity to investigate the claim and determine the facts, and to avoid unnecessary lawsuits by giving the public entity the opportunity to settle meritorious claims without going through an avoidable trial.  (Lacy v. City of Monrovia (1974) 44 Cal.App.3d 152,155.)  In Lacy, the court found that the husband’s claim gave the municipality all notice and knowledge it needed concerning the wife’s claim.  (Id.) Thus, the fact that the wife did not file her own claim did not bar her from bringing the action because it was clear that the husband presented the claim on his own behalf and on behalf of his wife and children.  (Id.)

 

In this case, Plaintiff’s government claim substantially complies with the government claims requirement.  It put the State on notice that the claim sought recovery for both Gomez’s tort damages as well as workers’ compensation benefits paid by Plaintiff to Gomez.  (See Guzman Decl., Exh. B.)  The State therefore had notice and knowledge of what it needed to investigate the claim, and an opportunity to settle the claim. 

 

The State relies on Pacific Tel. & Tel. Co. v. County of Riverside (1980) 106 Cal.App.3d 183, which is distinguishable.  In Pacific Tel., the employer timely filed a claim against the County asserting a dangerous condition of the roadway and sought to recover $55,000 in death benefits paid to the survivors of each of its deceased employees and burial expense of $1,000 paid to each survivor.  The widow of an employee did not file a government claim, but then filed a complaint in intervention for wrongful death.  The court found that the widow’s failure to file a claim was fatal to her claim.  (Id.)  This case is distinguishable from the facts here because P’s claim here put the State on notice of Gomez’s tort damages, whereas the employer’s claim in Pacific Tel. & Tel. Co. did not address any wrongful death claim.

 

Accordingly, the fact that Gomez did not file a separate government claim does not bar Plaintiff from recovering damages in excess of the actual workers’ compensation benefits Plaintiff paid, or becomes obligated to pay to Gomez. 

 

The State’s evidentiary objections nos. 1, 2 and 3 are OVERRULED.

 

As to the issue raised by the State of whether or not Plaintiff has actual authority from Gomez to seek Gomez’s tort damages, the court need not to reach this issue on this motion.  The State contends in reply that Plaintiff has not presented any evidence that it is authorized to seek Gomez’s tort damages.  However, in the State’s motion for summary adjudication, for purposes of this motion, the parties stipulated to summary adjudication of only a very narrow issue of whether Gomez’s failure to file a claim bars recovery of his tort damages.  Thus, the issue of whether Plaintiff has actual authority is a factual issue, and the State may still raise this issue of lack of actual authority at trial to the extent it contends Plaintiff had no authority. 

 

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, Plaintiff 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.

 

 

 

4. PLAINTIFF’S MOTION FOR SUMMARY ADJUDICATION OF CLAIM FOR DAMAGES PURSUANT TO CODE OF CIVIL PROCEDURE §437c(t)

TENTATIVE RULING:

 

 

The Motion of Plaintiff Cypress Insurance Company (“Plaintiff”) for Summary Adjudication, is GRANTED. 

 

Plaintiff and Defendant State of California (“State”) stipulated to cross-motions for summary adjudication pursuant to Code of Civil Procedure section 437c(t), on the following issue: “Whether the fact that Ezequiel Gomez did not file a Government Code Section 900 et. seq. claim bars CYPRESS INSURANCE COMPANY‘S [Plaintiff] recovery of damages in excess of the actual workers' compensation benefits CYPRESS INSURANCE COMPANY [Plaintiff] paid, or becomes obligated to pay to, or on behalf of, Ezequiel Gomez.”  (See Notice of Motion for Summary Adjudication of Claim of Damages, 2:3-6.) 

 

Compliance with the government claims statute is mandatory, and failure to file a claim is fatal to the cause of action.  (Pacific Tel. & Tel. Co. v. County of Riverside (1980) 106 Cal.App.3d 183, 188.)  Where there has been an attempt to comply but the compliance is defective, the test of substantial compliance controls.  (Id.)  Under the substantial compliance test, the court must ask whether sufficient information is disclosed on the face of the filed claim to reasonably enable the public entity to make an adequate investigation of the merits of the claim and to settle it without expense of a lawsuit.  (Id.)  Substantial compliance however, cannot be predicated upon no compliance.  (Id.) 

 

The principal purpose of the claims requirement is to give notice to the public entity in order that it be afforded a timely opportunity to investigate the claim and determine the facts, and to avoid unnecessary lawsuits by giving the public entity the opportunity to settle meritorious claims without going through an avoidable trial.  (Lacy v. City of Monrovia (1974) 44 Cal.App.3d 152,155.)  In Lacy, the court found that the husband’s claim gave the municipality all notice and knowledge it needed concerning the wife’s claim.  (Id.) Thus, the fact that the wife did not file her own claim did not bar her from bringing the action because it was clear that the husband presented the claim on his own behalf and on behalf of his wife and children.  (Id.)

 

In this case, Plaintiff’s government claim substantially complies with the government claims requirement.  It put the State on notice that the claim sought recovery for both Gomez’s tort damages as well as workers’ compensation benefits paid by Plaintiff to Gomez.  (See Guzman Decl., Exh. B.)  The State therefore had notice and knowledge of what it needed to investigate the claim, and an opportunity to settle the claim. 

 

The State relies on Pacific Tel. & Tel. Co. v. County of Riverside (1980) 106 Cal.App.3d 183, which is distinguishable.  In Pacific Tel., the employer timely filed a claim against the County asserting a dangerous condition of the roadway and sought to recover $55,000 in death benefits paid to the survivors of each of its deceased employees and burial expense of $1,000 paid to each survivor.  The widow of an employee did not file a government claim, but then filed a complaint in intervention for wrongful death.  The court found that the widow’s failure to file a claim was fatal to her claim.  (Id.)  This case is distinguishable from the facts here because P’s claim here put the State on notice of Gomez’s tort damages, whereas the employer’s claim in Pacific Tel. & Tel. Co. did not address any wrongful death claim.

 

Accordingly, the fact that Gomez did not file a separate government claim does not bar Plaintiff from recovering damages in excess of the actual workers’ compensation benefits Plaintiff paid, or becomes obligated to pay to Gomez. 

 

As to the issue raised by the State of whether or not Plaintiff has actual authority from Gomez to seek Gomez’s tort damages, the court need not to reach this issue on this motion.  The State contends in reply that Plaintiff has not presented any evidence that it is authorized to seek Gomez’s tort damages.  However, in the State’s motion for summary adjudication, for purposes of this motion, the parties stipulated to summary adjudication of only a very narrow issue of whether Gomez’s failure to file a claim bars recovery of his tort damages.  Thus, the issue of whether Plaintiff has actual authority is a factual issue, and the State may still raise this issue of lack of actual authority at trial to the extent it contends Plaintiff had no authority. 

 

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, Plaintiff 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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CIV537691     AMBER LAUREL BAPTISTE VS. MICHAEL LEWIS GOGUEN

 

 

AMBER LAUREL BAPTISTE                  PATRICIA L. GLASER

MICHAEL LEWIS GOGUEN                   DIANE M. DOOLITTLE

 

 

MOTION FOR SUMMARY JUDGMENT/ADJUDICATION OF ISSUES

TENTATIVE RULING:

 

Defendant’s motion for summary judgment and alternative motion for summary adjudication are DENIED.

 

The basis of both motions is Goguen’s contention that Baptiste failed to perform her “no communication” obligation in Paragraph 9 of the Agreement. The argument does not support summary judgment or summary adjudication.

 

A.   Baptiste’s Performance Is not an Element of Her Cause of Action

     for Breach of Contract.

 

A prima facie case for breach of contract sometimes includes the element that the plaintiff fully performed all her contractual obligations. (CACI 303 (Element 2).) That element, however, is optional and depends on whether the parties’ respective covenants were dependent or independent. Element 2 of CACI 303 is that plaintiff fully performed or was excused from performing. In its “Directions for Use” of CACI 303, the Judicial Council explains that Element 2 is proper when the covenants are dependent:

 

[T]he two obligations must be dependent, meaning that the parties specifically bargained that the failure to perform the one relieves the obligation to perform the other. While materiality is generally a question of fact, whether covenants are dependent or independent is a matter of construing the agreement. (Brown v. Grimes (2011) 192 Cal.App.4th 265, 277–279.)

 

If there is no extrinsic evidence in aid of construction, the question is one of law for the court. (Verdier v. Verdier (1955) 133 Cal.App.2d 325, 333.) Therefore, element 2 should not be given unless the court has determined that dependent obligations are involved. If parol evidence is required and a dispute of facts is presented, additional instructions on the disputed facts will be necessary.

 

(CACI 303, Instructions for Use.)  Therefore, Goguen’s motion would have merit only if his obligation to pay $40 million was dependent on Baptiste’s obligation to not communicate with him.

 

“The question whether covenants are to be held dependent or independent of each other is ordinarily a question of fact, to be determined by the intention and meaning of the parties, as expressed by them, and by the application of common sense.” (17B C.J.S. Contracts § 667; see also Brown v. Grimes (2011) 192 Cal.App.4th 265, 277–279 (“question of fact”).)

 

Paragraph E of the Agreement states that Goguen’s payment is “in exchange for” Baptiste’s confidentiality and release. It does not state that the payment is in exchange for no-communication. Paragraph 2 states that Baptiste releases Goguen “in consideration for the $40,000,000.” It does not state that “no communication” was consideration for the money. Paragraph 9 states that the parties mutually agree to have no communication with each other. One reasonable interpretation of Paragraph 9 is that each party’s promise is the consideration for the other party’s identical promise.

 

The only language potentially connecting the “no communication” clause with the $40 million is in Paragraph 1, which states that Goguen will pay the money as consideration for “the terms” of this agreement.” This sentence must be considered in the context of the entire agreement. Paragraph 1 does not explicitly state that the no-communication promise of Paragraph 9 is consideration for the payment. At best, it is ambiguous whether the consideration includes Paragraph 9. As an ambiguity, the Court may interpret Paragraph 1 with parol evidence at trial. At a minimum, a triable issue of fact exists about whether Paragraph 9 was consideration for $40 million.

 

In addition to the above, the case of Verdier v. Verdier (1955) 133 Cal.App.2d 325, 333 applies factually and legally. Verdier involved a marital separation agreement under which Husband was obligated to pay monthly support, and both parties mutually agreed not to harass (“molest”) each other. Wife breached the agreement by harassing Husband. The trial court ruled that Wife’s breach terminated the agreement and Husband had no obligation to continue making payments. The appellate court reversed.

 

The Court of Appeal noted that, as in the present case, the “no harassment” provision in Verdier was mentioned only once in the agreement, imposing the obligation on both parties. The Court held that the Wife’s breach of the no-harass provision did not excuse Husband from further payments. (Id. at 333-35.) “Rather, the agreement not to molest appears but incidental to, or an elaboration of, the agreement to live separate and apart.” (Id. at 335.) The Court concluded that the covenants were independent and that Wife’s breach did not excuse Husband’s obligation to make monthly support payments. (Id.at 336.)

 

As in Verdier, the present Agreement contains no clear language connecting the $40 million obligation with the obligation that Baptiste not communicate with Goguen. Rather, Paragraph 9 suggests that each party’s promise not to communicate with the other is the consideration for the other party to do the same.

 

Goguen’s payment obligation and Baptiste’s no-communication obligation are independent covenants. Alternatively, the Agreement is ambiguous whether the covenants are dependent or independent, and a triable issue of fact exists on that issue. Therefore, the motion fails to establish that Baptiste must prove performance of Paragraph 9 as an element of her cause of action.

 

     B.   A Failure to Perform the No-Communication Obligation

          Does not Excuse Goguen’s Obligation to Pay.

 

Goguen’s second argument is that his obligation to perform was excused because Baptiste failed to perform the no-communication obligation. Although generally the failure of one party’s performance excuses the other party’s performance, the same does not hold true when the obligations are independent covenants. (See Brown v. Grimes (2011) 192 Cal. App. 4th 265, 279 (performance excused when covenants were dependent); Verdier, supra (breach of independent covenant does not excuse performance.) For the reasons set forth above, the motion fails to establish that, as a matter of law, Goguen’s performance was excused.

 

     C.   Repudiation

 

Goguen’s final argument is that Baptiste anticipatorily repudiated the agreement. Repudiation is a question of fact. (Singh v. Burkhart (1963) 218 Cal. App. 2d 285, 293.) Baptiste made various statements and purported threats relating to her request that Goguen accelerate the payments, as well as demands that Goguen attend therapy. Although the words are undisputed, the meanings of the words and whether they constitute an anticipated repudiation are a question of fact. The Court cannot determine as a matter of law that the words, as a matter of law, constituted a repudiation.

 

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, BAPTISTE 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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CLJ531400     MARINA ZIGMAN VS. VLADISLAV POWERMAN ET AL.

 

 

MARINA ZIGMAN                          JOSEPH WOOD

VLADISLAV POWERMAN                     Pro/PER

 

 

DEFENDANT’S MOTION FOR ORDER DISMISSING THE CASE WITH PREJUDICE

TENTATIVE RULING:

 

Defendant’s motion to dismiss is moot.  The matter was voluntarily dismissed by plaintiff without prejudice on September 7, 2017.  To the extent the motion seeks a dismissal with prejudice, a discretionary dismissal under CCP §583.410 for delay in prosecution is without prejudice to renewed litigation.  Franklin Capital Corp. v. Wilson (2007) 148 Cal.App.4th 187. 

 

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.

 


 

 

 

 


POSTED:  3:00 PM

 

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