October 31, 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

 

OCTOBER 31, 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 410586       EDITH M. INGRAM, ET AL. VS. RAMIN YEGANEH, ET AL.

 

 

EDITH M. INGRAM                       MICHAEL M. MARKMAN

RAMIN YEGANEH                         GEORGE P. ESHOO

 

 

MOTION TO VACATE SEPTEMBER 5, 2014 RENEWAL OF JUDGMENT BY RAMIN YEGANEH

 

 

·         Defendant RAMIN YEGANEH’s Motion to Vacate September 5, 2014 Renewal of Judgment is GRANTED. 

 

·         The only viable judgment in this case is the June 3, 2004 Judgment.  The subsequent September 9, 2004 award of attorneys’ fees was merged into the June 3, 2004 Judgment, as stated explicitly by the Court in its Judgment, the Order granting attorneys’ fees, and a Notice of Entry of Judgment issued by the Court.  (Defendant’s Exhibits B,C, D.)  Once the attorneys’ fee award was ordered merged into the June 3, 2004 Judgment, it “loses all of its vitality and ceases to bind the parties to its execution.  Its force and effect are then expended, and all remaining legal liability is transferred to the judgment.”  This is the doctrine of the law of merger.  Doerr v. Schmitt (1941) 31 N.E. 2d 971, 972.  If it is clear from the Court’s language that a merger was intended, as it was here, a merger is accomplished.  Flynn v. Flynn (1954) 42 Cal.2d 55, 58.  

 

·         Plaintiffs and their counsel cannot apply for a renewal of a judgment more than 10 years after its entry.  Code Civ. Proc. §§ 683.020(a), 683.130(a); OCM Principal Opportunities Fund v. CIBC World Markets Corp. (2008) 168 Cal.App.4th 185, 195.  Accordingly, the untimely September 5, 2014 Renewal of Judgment is vacated.

 

 

MOTION FOR PROTECTIVE ORDER RE: ORDERS OF EXAMINATION & SUBPOENAS DUCES TECUM BY RAMIN YEGANEH

 

 

·         Defendant’s Motion for Protective Order Re: Orders of Examination and Subpoenas Duces Tecum is MOOT in light of the holding above. 

 

·         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

2

CIV 493925       MARK HOLMES, ET AL. VS. COUNTY OF SAN MATEO, ET AL.

 

 

MARK HOLMES                           PRO/PER

COUNTY OF SAN MATEO                   MICHAEL P. MURPHY

 

 

MOTION FOR A PROTECTIVE ORDER REGARDING PLAINTIFF'S DEPOSITION NOTICE AND ADDITIONAL DISCOVERY BY COUNTY OF SAN MATEO

 

 

·         The general rule is that depositions of agency heads are not allowed and the court acknowledges that there are exceptions.  However none of the exceptions have been demonstrated by Plaintiffs. Therefore, the Protective Order is GRANTED to the extent that it precludes the deposition of Mark Church and his obligation to produce documents at the deposition.

 

·         The County seeks to preclude any further discovery in this matter without further leave to Court. This request is DENIED because there has been no showing of good cause to warrant such a ruling.

 

·         The County also requests that the Writ Action be heard first, and then the Civil Action, which is DENIED. The Court has consolidated the Writ Action and Civil Action together and to grant such a request would be to treat them as though they were severed. 

 

·         The County seeks sanctions but fails its notice of motion fails to comply with CCP section 2023.040, thus the request is DENIED. Also, the County does not provide any facts upon which any such sanctions could be awarded, i.e., the amount of sanctions sought and the basis therefor.

 

·         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 519076       ROBERT MCNAMARA, ET AL. VS. EMBASSY SUITES

                   MANAGEMENT, LLC, ET AL.

 

 

ROBERT MCNAMARA                       RICHARD H. SCHOENBERGER

EMBASSY SUITES MANAGEMENT, LLC        JOSEPH A. AGUILAR

 

 

MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION BY CITY MECHANICAL, INC. AGAINST EMBASSY SUITES MANAGEMENT, LLC, FELCOR/CSS HOLDINGS, L.P. AND DJONT OPERATIONS, LLC

 

 

·         Defendants/cross-complainants/cross-defendants Embassy Suites Management, LLC; DJOINT Operations, LLC and Felco/CSS Holdings, LP’s objections to the declaration of Russell Will, Jr., filed in support of the motion for summary judgment are sustained.

 

·         Defendant City Mechanical’s Motion for Summary Judgment is DENIED.

 

·         Defendant has met its initial burden under CCP 437c(p)(2) of establishing a lack of duty to Plaintiffs. The burden then shifts to cross-complainants Embassy Suites Management, LLC; DJOINT Operations, LLC and Felco/CSS Holdings, LP to show that a triable issue of material fact exists as to each cause of action. They have met that burden. Embassy Suites Management, LLC; DJOINT Operations, LLC and Felco/CSS Holdings, LP have created triable issues of material facts as to defendant’s material facts 6, 7, 8, 9, 10, 17, 18, 19, 23, 24, 25 and 31. They have also submitted an additional 27 material facts that raise triable issues of material fact as to the issue of duty.

 

·         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 519709       IRMA MEDRANO VS. WESTERN INVENTION SUBMISSION

                   CORPORATION, ET AL.

 

 

IRMA MEDRANO                          PRO/PER

WESTERN INVENTION SUBMISSION CORP.    RANDOLPH S. HICKS

 

 

MOTION FOR JUDGMENT ON THE PLEADINGS BY WESTERN INVENTION SUBMISSION

CORPORATION, WESTERN INVENTHELP AND INTROMARK, INC.

 

 

·         Defendants’ motion for judgment on the pleadings is denied as to the 2nd cause of action for fraud and 3rd cause of action for negligent misrepresentation.  These causes of action are tort claims arising from representations that took place where the contracts were entered into and therefore are not causes of action arising from or related to those agreements and do not involve tortious breaches of duties emanating from the agreement or the legal relationship it creates.  Nedlloyd Lines B.V. v.  Superior Court (1992) 3 Cal.App. 4th 459, 470.

 

·         Defendants' motion for judgment on the pleadings is granted as to the 4th cause of action for breach of the covenant of good faith and fair dealing with leave to amend to incorporate allegations of this complaint into the 1st cause of action for breach of contract.  This cause of action as one arising from or related to the agreements and therefore would be governed by the choice of law provision.  Under Pennsylvania law, the implied covenant of good faith does not allow for a cause of action separate and distinct from the breach of contract claim.  Burton v. Teleflex, Inc. (3rd Cir. 2013) 707 F.  3rd 417, 432.

 

·         Defendants’ motion for judgment on the pleadings is denied as to the 5th cause of action for violation of Business & Professions Code §22370 et seq.  Business & Professions Code §22385 contains an anti-waiver provision under has been no showing that Pennsylvania law provides equivalent or greater protection.  1-800-Got Junk?  LLC v. Superior Court (2010) 189 Cal.App. 4th 500.

 

·         Defendants' motion for judgment on the pleadings is granted as to the 6th cause of action for Violation of B & P §17200 with leave to amend to allege a cause of action for violation of Pennsylvania's consumer protection laws.

 

·         Western InventHelp and Intromark's motion for judgment on the pleadings on the grounds of insufficiency of the allegations is denied.  The 1st amended complaint contains sufficient allegations asserting liability on both of these defendants.

 

·         In support of the reply, Defense counsel submitted a declaration with printouts from the California, Tennessee and Pennsylvania Secretary of State websites to support the argument that defendants had identified a Pennsylvania address in official corporate records. In a footnote in its reply, defendants stated that under Evidence Code §452(d), the court could take judicial notice of records of any state and that the court might take judicial notice in ruling on a motion for judgment on the pleadings.  There was no direct request that the court take judicial notice of the attached documents.

 

·         CRC 3.1113(l) requires that "any request for judicial notice must be made in a separate document listing the specific items for which notice is requested…”  Defendants did not make their request for judicial notice in a separate document.  Furthermore, CCP §438(d) requires that when a motion for judgment on the pleadings is based on a matter of which the court may take judicial notice, the matter shall be specified in the notice of motion or in the supporting points and authorities.  Neither the notice of motion nor the moving points and authorities specify that the motion will be based on a matter upon which the court may take judicial notice.  The court declines to take judicial notice of these documents.

 

·         Moving attorney 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 to 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 521318       MR. GEARS, INC. VS. BANK OF AMERICA, N.A., ET AL.

 

 

MR. GEARS, INC.                       WALLACE C. DOOLITTLE

BANK OF AMERICA, N.A.                 KURT C. WENDLENNER

 

 

MOTION FOR JUDGMENT ON THE PLEADINGS BY BANK OF AMERICA, N.A.

 

 

·         Defendant Bank of America’s Motion for Judgment on the Pleadings is GRANTED WITH LEAVE TO AMEND as to the first cause of action for Plaintiff Mr. Gears, Inc. only. Defendant Bank of America’s Motion for Judgment on the Pleadings is GRANTED as to the first cause of action for Plaintiffs Joseph Hybl and Beverly Jean Hybl because they have not alleged that they had a contract with Defendant bank, nor that they were intended beneficiaries of the contract between the corporate plaintiff and defendant. 

 

·         Defendant Bank of America’s Motion for Judgment on the Pleadings is GRANTED WITH LEAVE TO AMEND as to the third cause of action for common counts for Plaintiffs to plead that Bank of America actually received some of the Plaintiffs’ funds. “Recovery is denied in such cases unless the defendant himself has actually received the money.” Whittier v. Home Sav. Bank, 161 Cal. 311 (1911).

 

·         Defendant Bank of America’s Motion for Judgment on the Pleadings is GRANTED WITH LEAVE TO AMEND as to the fourth cause of action.

 

·         Defendant Bank of America’s Motion for Judgment on the Pleadings is GRANTED WITH LEAVE TO AMEND as to the fifth cause of action for Plaintiffs to plead it with particularity.  When defendant is a corporation, the plaintiff must allege the names of persons who made the representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. Hamilton v. Greenwich XXVI, LLC, 195 Cal. App. 4th 1602, 1614 (2011).

 

·         Defendant Bank of America’s Motion for Judgment on the Pleadings is GRANTED WITH LEAVE TO AMEND as to the sixth cause of action. Plaintiffs are given an opportunity to plead facts sufficient to state a cause of action for an intentional tort, other than breach of fiduciary duty.  Banks do not have a fiduciary duty to depositors. Copesky v. Superior Court, 229 Cal. App. 3d 678, 694 (1991).

 

·         Defendant Bank of America’s Request for Judicial Notice is GRANTED pursuant to Evidence Code § 438(d).  

 

·         Pursuant to CCP § 438(h)(2), Plaintiffs are granted 30 days to file an amended complaint. 

·         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 524843       ELIZABETH KARNAZES VS. JOHN FERRY, ET AL.

 

 

ELIZABETH KARNAZES                    PRO/PER

JOHN FERRY                            PRO/PER

 

 

MOTION FOR STAY OF ALL PROCEEDINGS PENDING THE OUTCOME OF RELATED CASES BY JOHN E. FERRY AND KIRSTEN FERRY

 

 

·         Defendants’ unopposed Motion to Stay pending the outcome of the criminal case in SM386553 is GRANTED. 

 

·         Defendants’ Motion to Stay pending the outcome of the civil case in CIV527902 is DENIED.  Defendants have not offered any evidence or authority to establish that a stay is necessary or proper under the circumstances.

 

·         Defendants have made only conclusory assertions that the outcome of CIV 527902 will affect the issues and damages in this action.

 

·         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

7

CIV 525673       JOSE GARCIA VS. GARY KASSINOV, ET AL.

 

 

JOSE GARCIA                           CARY KLETTER

GARY KASSINOV                         PRO/PER

 

 

MOTION FOR AN ORDER STRIKING DEFENDANTS’ ANSWER AND ENTERING DEFAULT AND REQUEST FOR MONETARY SANCTIONS BY JOSE GARCIA

 

 

·         Plaintiff Jose Garcia’s unopposed Motion to Strike Defendants’ answer and Enter Default Judgment will be CONTINUED pursuant to CLD Const., Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141.  Although a corporation cannot act in propria persona, and must be represented by an attorney in a court proceeding, the Defendant corporation must also be given a reasonable amount of time to obtain counsel.  Defendant Gary’s Guaranteed Rooster, Inc. is directed to attain counsel, and the case will be continued to November 26, 2014.  If Defendant corporation has not retained a licensed attorney by the next court date, the Court will grant the Plaintiff’s motion to strike Defendants’ answer and enter default judgment against corporate Defendant Gary’s Guaranteed Rooter, Inc.. 

 

·         Furthermore, Plaintiff Jose Garcia’s request for terminating sanctions and attorney’s fees due to Mr. Kassinov’s failure to appear at two depositions is DENIED without prejudice.  Notwithstanding the merits of the claim, terminating and/or monetary sanctions will not be awarded unless counsel for Plaintiff first moves, pursuant to CCP § 2025.450(a), for an order compelling Mr. Kassinov’s deposition attendance and testimony.    

 

·         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

8

CIV 528655       JOHN K. BLAKE, JR., ET AL. VS. NELSON TRIM CO., ET

                   AL.

 

 

JOHN K. BLAKE, JR.                    PRO/PER

NELSON TRIM CO.

 

 

MOTION FOR ATTORNEY'S FEES AND COSTS PURSUANT TO CCP SECTION 473(B) BY JOHN K. BLAKE, JR. AND CHRISTINE CHANG BLAKE

 

 

·         Plaintiffs' motion for attorney's fees and costs pursuant to CCP §473(b) is denied due to insufficient notice (CCP §1005(b)).

 

·         Moving attorney 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 to 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

CIV 530285       RENEE GLOVER CHANTLER, ET AL. VS. FARIN NAMDARAN

                   YEGANEH, ET AL.

 

 

RENEE GLOVER CHANTLER                 MICHAEL S. TRACY

FARIN NAMDARAN YEGANEH                WILLIAM E. GILG

 

 

DEMURRER TO COMPLAINT of CHANTLER BY FRAN YEGANEH, KEN YEGANEH AND RAMIN YEGANEH

 

 

·         The demurrer is overruled.

 

·         The Court concludes that there was only one enforceable judgment in the underlying case, and the judgment was entered June 3, 2004. 

 

·         The Complaint alleges Action on Judgment, pursuant to Code of Civil Procedure section 683.050. The statute of limitations does not begin to run until judgment is final and all right to appeal has expired or all appeals are finally determined. The Complaint alleges that “on or about April 10, 2006,” the Bankruptcy Trustee was authorized to dismiss Defendant’s appeals. (Complaint ¶ 58.) The only reasonable inference from that allegation is that Defendant’s appeal was still pending “on or about April 10, 2006.” Therefore, the statute did not begin to run until after that date. The Complaint in this action was filed within 10 years and is timely. (Code of Civ. Proc. § 337.)

 

·         Although the Court concludes that Plaintiffs’ underlying judgment expired in June 2014, neither party offers any authority addressing the question whether a non-renewed judgment may be the basis for an Action on Judgment under Section 683.050. Therefore, the Court cannot sustain demurrer on the ground that Plaintiffs’ judgment expired before Plaintiffs filed the present action.

 

·         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 523158       ASSET CAPITAL RECOVERY GROUP, LLC VS. ALEX A. ESCOBAR

 

 

ASSET CAPITAL RECOVERY GROUP, LLC     KENNETH J. MIELE

ALEX A. ESCOBAR

 

 

MOTION FOR ORDER SETTING ASIDE DEFAULT AND DEFAULT JUDGMENT UNDER CCP SECTION 473(B) BY ASSET CAPITAL RECOVERY GROUP, LLC

 

 

·         Plaintiff ASSET CAPITAL RECOVERY’s Motion for Order Setting Aside Default and Default Judgment under CCP §473(b) is DENIED. Under 11 U.S.C. § 362(a)(1), an automatic stay has been instituted by the United States Bankruptcy Court, Northern District of California (San Francisco). While the automatic stay remains in effect, all judicial actions by this Court are void. In re Marriage of Sprague & Spiegel-Sprague, 105 Cal. App. 4th 215, 219 (2003). Thus, the default judgment entered into against Defendant on June 10, 2014 is void. Plaintiff should refrain from filing any moving papers until the stay is released to prevent Plaintiff from violating the stay.

 

·         The court, on its own motion, pursuant to CCP §473(d), vacates the June 10, 2014 judgment as a void judgment.

 

·         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

11

CLJ 530172       PITCAIRN HOMEOWNERS ASSOCIATION VS. ELIZABETH MARIE BARNSON KARNAZES

 

 

PITCAIRN HOMEOWNERS ASSOCIATION       KEVIN D. FREDERICK

ELIZABETH MARIE BARNSON KARNAZES

 

 

MOTION TO QUASH SERVICE OF COMPLAINT AND SUMMONS THEREON BY ELIZABETH KARNAZES

 

 

·         Defendant Elizabeth Karnazes Motion to Quash Service of Summons and Complaint is GRANTED. The proof of service and the declaration of process server Scott Feely create a rebuttable presumption of proper service. Floveyer Int’l. Ltd. V. Superior court (1997) 59 Cal. App. 4th 789, 795. The declarations of Defendant Karnazes and Edward Novak have sufficiently rebutted this presumption. Both declarations states under penalty of perjury that Defendant was not at home at the time she was purportedly served. Both state that defendant was with Mr. Novak in another city at the time of the purported service.

 

·         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.

 

 

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