July 1, 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, June 26, 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 513408       VALERIE RODRIGUEZ VS. AUTOMATIC DOOR SYSTEMS, INC.

 

 

VALERIE RODRIGUEZ                     GARY B. ROTH

AUTOMATIC DOOR SYSTEMS, INC.          ANN M. ASIANO

 

 

DEMURRER TO AMENDMENT TO COMPLAINT FOR PERSONAL INJURIES AND DAMAGES of VALERIE RODRIGUEZ BY KAISER FOUNDATION HOSPITALS

 

 

  • The Demurrer to Doe Amendment brought by Defendant KAISER FOUNDATION HOSPITALS (“Kaiser”) is SUSTAINED WITHOUT LEAVE TO AMEND on the following grounds:

 

·         The Doe amendment, filed nearly five years after Plaintiff’s alleged injury, is barred by the two-year statute of limitations.  [Code Civ. Proc. § 335.1].  The Doe amendment does not “relate back” to the filing date of the original Complaint, because Plaintiff fails to demonstrate “genuine ignorance” of Kaiser’s identity so as to avail herself of the Doe statute.  [Code Civ. Proc. § 474; Woo v. Superior Court (1999) 75 Cal.App.4th 169, 177].

 

·         Plaintiff’s three year delay in filing the Doe amendment is unreasonable, such that the doctrine of laches applies.  [See Smeltzley v. Nicholson Manufacturing Co. (1977) 18 Cal.3d 932, 939].  “A plaintiff should not be permitted to name a known defendant in a fictitious manner hoping to surprise a defendant by reviving claims that have been allowed to slumber until evidence has been lost, memories have faded and witnesses have disappeared.”  [Elkins v. Derby (1974) 12 Cal.3d 410]. 

 

·         Plaintiff admits an employer-employee relationship between herself and Kaiser in ¶ 3 of the original Complaint.  As such, her sole remedy against Kaiser is workers’ compensation, and her claim is barred by the workers’ compensation exclusivity rule. [Labor Code §§ 3600(a) and 3602(a); Singh v. Southland Stone, USA, Inc. (2010) 186 Cal.App.4th 338]. 

 

·         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.

 

 

MOTION TO BIFURCATE TRIAL BY STANLEY ACCESS, INC.

 

 

·         The Motion to Bifurcate brought by Defendant STANLEY ACCESS, INC. (“Stanley”) is DENIED WITHOUT PREJUDICE.  Moving party may renew this motion before the trial judge.

 

·         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 521944       RICHARD ENFANTINO, ET AL. VS. REALTY WORLD-MARTINELLI

                   PROPERTIES INC., ET AL.

 

 

RICHARD ENFANTINO                     ANITA L. STEBURG

REALTY WORLD-MARTINELLI PROPER        MATTHEW D. ZUMSTEIN

 

 

MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION BY REALTY WORLD-MARTINELLI PROPERTIES INC. AND SILVIA MARTINELLI

 

 

·         The unopposed Motion for Summary Judgment by Defendants Realty World-Martinelli Properties, Inc. and Silvia Martinelli is GRANTED. Defendants have met their initial burden under CCP § 437c(p)(1).  Defendants have demonstrated that Plaintiff cannot prevail on their three causes of action: 1)the cause of action for breach of fiduciary duty fails for a lack of proximate cause [Material facts 6-8, 14-16]; 2) the cause of action for negligence fails for lack of proximate cause [Material facts 6-8, 14-16]; and 3) the cause of action for breach of the covenant of good faith and fair dealing fails for lack of a valid contract between the parties [Material facts 5, 17]. The burden then shifts to Plaintiffs pursuant to CCP §437c(p)(2) to demonstrate a triable issue of material fact. Plaintiffs have not met that burden. In fact, plaintiffs have not filed a response to the motion for summary judgment.

 

·         Judgment is entered for the moving defendants as to these three causes of action.

 

·         Moving parties are 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

3

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

                   AL.

 

 

LANCE H. PEREZ                            NANCY WENG

BANK OF AMERICA, N.A.                     SHARON STEWART

 

 

MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION SET ONE AS TO DEFENDANT RESURGENT MORTGAGE SERVICING AND FOR AN ORDER IMPOSING MONETARY SANCTION BY LANCE H. PEREZ AND MARIA CECILIA PEREZ

 

 

·         These matters are continued to July 17, 2015 at 9:00a.m. on request of the parties.

 

_____________________________________________________________________


9:00

4

CIV 529638       SIOSIUA LIVAI, ET AL. VS. NATIONSTAR MORTGAGE LLC

 

 

SIOSIUA LIVAI                         EUNJI CHO

NATIONSTAR MORTGAGE LLC               LAWRENCE D. HARRIS

 

 

MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION BY NATIONSTAR MORTGAGE LLC

 

 

 

·         The Court admonishes Plaintiff’s counsel Matthew Mellen, Sara Adelaars, Eunji Cho, and the Mellen Law Firm for violating CRC Rule 3.1110(f) (requiring hard tabs between exhibits). The Court directs counsel to comply with Rule 3.1110(f) in all subsequent motions in all matters before the court.

 

·         Plaintiffs’ objection numbers 1 and 2 are SUSTAINED. (Evid. Code § 1523 [oral testimony about contents of writing inadmissible]; lack of foundation.)

 

·         Plaintiffs’ objection number 3 is SUSTAINED. [ Lack of personal knowledge; hearsay. (Thiebaut v. Blue Cross of Indiana (1986) 178 Cal.App.3d 1157, 1161)].

 

·         The Motion for Summary Judgment/Summary Adjudication is DENIED.

 

·         The Motion is DENIED as to Issue 1. Material Fact 10 is undisputed. The Court disregards Declaration of Nationstar paragraph 16 (Objection 1 above), however, Plaintiff admits that Defendant discussed their financial situation and foreclosure alternatives during “some” of the calls in 2009 and 2012. Material Fact 10 does not establish that Defendant fulfilled the requirements of section 2923.55. Defendant contends that the default is for payments from November 2012 onward. (UMF 6.) Therefore, it is not clear that the 2009 and 2012 conversations, some of which preceded a loan modification, pertained to the specific default that triggered recording the July 2014 Notice of Default.  This is a triable issue.

 

·         Section 2923.55(b)(2) also requires that  Defendant provide Plaintiffs with the toll-free HUD number and that they inform Plaintiffs of their right to request a subsequent meeting within 14 days. Defendant’s Material Fact 11 addresses both requirements, but is supported solely by Declaration of Nationstar paragraph 16, to which the Court sustains Plaintiffs’ objection.  No admissible evidence supports Material Fact 11.

 

·         Finally, since a triable issue exists about whether Defendant satisfied the requirement of “initial contact” with Plaintiffs about foreclosure alternatives, then a triable issue exists about whether Defendant waited 30 days after that “initial contact” before filing Notice of Default.

 

·         The Motion is denied as to Issue 2.  It is undisputed that Plaintiffs received a letter dated May 21, 2014, stating that they were denied for a “standard modification.” (UMF 17.) Defendant contends that “standard modification” is the same as “in-house modification.” (Declaration of Nationstar ¶ 13.) Plaintiffs offer evidence that, after receiving the letter, they were told that Defendant was still considering them for an in-house modification. (Declaration of Siosiua Livai ¶ 10; Siosiua Deposition at 52:13- 21, 58:2- 13, 60:14-17, 73:13- 21).  The fact of the letter is undisputed, but the truth of the contents of the letter are not. A triable issue of fact exists about whether Plaintiffs’ request for an in-house modification was under consideration at the time the Notice of Default was recorded. 

 

·         If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiff 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. 

 

_____________________________________________________________________


9:00

5

CIV 530276       MARINA FRANCO, ET AL. VS. BRUCE G. HEATHCOTE, ET AL.

 

 

MARINA FRANCO                         A. K. ABRAHAM

BRUCE G. HEATHCOTE                    DENNIS L. FAORO

 

 

MOTION FOR ORDER MODIFYING DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS TO WELLS FARGO BANK, N.A. BY BRUCE G. HEATHCOTE

 

 

  • Defendants Motion for Order Modifying Deposition Subpoena for Production of Business Records to Wells Fargo Bank is GRANTED.  The first and third categories of the Subpoena are stricken (All monthly statements for the Account; and, the front and back of each check or draft drawn on the Account). The second category shall limited to checks relating to the subject property only. The Subpoena would require disclosure of information pertaining to non-parties without any notice or opportunity to object.

 

  • The requests for Monetary Sanctions by each side are DENIED.

 

  • 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

6

CIV 532520       GEORGE SCHOEN VS. NEW HAMPSHIRE INSURANCE COMPANY

 

 

GEORGE SCHOEN                            JACOB HARKER

NEW HAMPSHIRE INSURANCE COMPANY          KENDALL A. LAYNE

 

 

DEMURRER TO 2nd Amended COMPLAINT of GEORGE SCHOEN BY NEW HAMPSHIRE INSURANCE COMPANY AND PUBLIC STORAGE

 

 

·         Moot.  This case was dismissed on June 9, 2015.

 

_____________________________________________________________________


9:00

7

CIV 533067       MICHAEL C. O'CONNELL, ET AL. VS. COUNTY OF SAN MATEO

 

 

MICHAEL C. O'CONNELL                  MICHAEL D. MCCRACKEN

COUNTY OF SAN MATEO                   BRIAN E. KULICH

 

 

DEMURRER TO COMPLAINT of MICHAEL C. O'CONNELL BY COUNTY OF SAN MATEO

 

 

  • Defendant’s Demurrer to the Complaint is SUSTAINED WITH LEAVE TO AMEND in part and OVERRULED in part.  It should be noted at the outset that Exhibits A and B that are referenced in the Complaint are not attached to it in the Court file. 

 

  • Regarding the First Cause of Action for declaratory relief, the demurrer is OVERRULED. Plaintiffs have stated a cause of action for relief under this theory.   

 

  • Concerning the Second, Third and Fourth Cause of Action for quiet title, breach of contract, and specific performance, respectively the Demurrers are SUSTAINED WITH LEAVE TO AMEND.

 

  • With regard to the quiet title cause of action, Plaintiffs have not stated the second element required for an action to quiet title, i.e., that they held title to the property, as the Complaint admits that they did not hold title. 

 

  • Regarding the causes of action for breach of contract and specific performance, the element of breach of contract is missing, as it appears that the Defendant complied with the terms of the Contract as stated in the Complaint.  

 

  • Defendant’s Request for Judicial Notice is DENIED. The document supplied contains additional material not found in the Court’s records (i.e., Exhibits A and B and correspondence from Plaintiffs’ counsel).

 

  • Plaintiff shall file a 1st Amended Complaint, should he elect to do so, no later than July 10, 2015.

 

  • 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

8

CIV 533493       IN THE MATTER OF BEACH PARK BOULEVARD ASSOCIATION

 

 

BEACH PARK BOULEVARD ASSOCIATION      RAYMOND T. KAISER

 

 

PETITION TO REDUCE REQUIRED VOTING PERCENTAGE

 

 

  • The unopposed Petition by Beach Park Boulevard Association to Reduce the Required Voting Percentage is GRANTED pursuant to Civil Code §4275(c). The restated declaration is approved on the basis of the affirmative votes received during the balloting period, subject only to the requirement that the restated declaration be executed and acknowledged by petitioner’s president and secretary and recorded in the office of the San Mateo County Recorder pursuant to Civil Code §4275(f).

 

  • Petitioner 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

9

CLJ 494946       STATE FARM MUTUAL AUTOMOBILE INS. CO. VS. NEILSON G.

                   ADRIANO, ET AL.

 

 

STATE FARM MUTUAL AUTOMOBILE INS. CO. JOSEPH M. PLEASANT

NEILSON G. ADRIANO

 

 

MOTION TO AMEND JUDGMENT AND OF NONAPPEARANCE BY STATE FARM MUTUAL AUTOMOBILE INS. CO.

 

 

  • The Request for Judicial Notice by Plaintiff is GRANTED pursuant to Evidence Code §452(d).

 

  • The unopposed  Motion to Amend Judgment brought by Plaintiff is GRANTED.  A court may amend a judgment at any time so that the judgment will properly designate the real defendant. [CCP §187, Danko v. O’Reilly (2014) 232 Cal App 4th 732, 735].  In this case, Neilson Gino Adriano is merely an additional and routinely used name of the same defendant.  As such, the court grants Plaintiff’s motion to amend the judgment so that Defendant’s name reads as follows: “NEILSON G. ADRIANO aka GINO NEILSON aka NEILSON GINO ADRIANO.”

 

  • 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

10

CLJ 514777       CACH, LLC VS. MARIO DELACONCHA

 

 

CACH, LLC                             GLORIA ZARCO

MARIO DELACONCHA

 

 

MOTION FOR ENTERING JUDGMENT PURSUANT TO DEFENDANTS DEFAULT UNDER STIPULATION FOR ENTRY OF JUDGMENT BY CACH, LLC

 

 

  • The unopposed Motion for Entry of Judgment Pursuant to Terms of Stipulated Settlement by Plaintiff CACH, LLC is GRANTED pursuant to CCP § 664.6.  Judgment for Plaintiff is entered in the amount of $5,886.75.

 

  • 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

11

CLJ 522069       STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY VS.

                   FADI ALHOUR

 

 

STATE FARM MUTUAL AUTOMOBILE COMPANY  RICHARD L. MAHFOUZ

FADI ALHOUR                           PRO/PER

 

 

MOTION TO COMPEL DISCOVERY RESPONSES AND FOR SANCTIONS BY STATE FARM MUTUAL AUTOMOBILE COMPANY

 

 

·         Appear.

 

_____________________________________________________________________


9:01

12

CIV 490011       STEVE SMITH, ET AL. VS. CAROLE DELMAR, ET AL.

 

 

STEVE SMITH                           JAMES PAUL GREEN

CAROLE DELMAR                         DENNIS J. KELLY

 

 

MOTION FOR LEAVE TO FILE AMENDED ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT BY CAROLE DELMAR AND CAFE REAL ESTATE, INC

 

 

·         APPEAR.  There is a strong public policy in favor of permitting amendments and Plaintiffs have not established that that they will suffer prejudice.  The proposed defense presents only a question of law.  Therefore, the Court is inclined to permit the amendment.  However, there is some confusion as to the exact defense defendants intend to assert.  Defendants memorandum of points and authorities refers to a defense under Civil Code §47(b) for statements made in a judicial proceeding but the amended answer asserts a defense under §47(c), which pertains to statements made by an interested party to another interested party.  Consequently, the parties are directed to appear so that defendants may clarify the proposed amendment. 

 

_____________________________________________________________________


9:01

13

CIV 520542       STEVE SMITH, ET AL. VS. JAMES MARSHALL ELLIOT, ET AL.

 

 

STEVE SMITH                              JAMES PAUL GREEN

JAMES MARSHALL ELLIOT

 

 

SUPPLEMENTAL MOTION AND MOTION FOR AWARD OF FEES AND COSTS PURSUANT TO CCP SECTION 425.1(C)(1) IN THE AMOUNT OF $293,967.00 BY JAMES MARSHALL ELLIOT AND CAFE REAL ESTATE, INC.

 

 

·         The two Motions for Attorney’s Fees and Costs by Defendants James Marshall Eliot, Café Real Estate, Inc. DBA Del Mar Properties Two Motions for Attorney’s Fees and Costs are GRANTED pursuant to CCP §425.16(c). The court awards Defendants reasonable attorney’s fees of $154,945.00 and costs of $930.00.

 

·         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.

 

 

MOTION FOR ATTORNEY'S FEES FILED BY JAMES MARSHALL ELLIOT

 

 

·         See above.

 

_____________________________________________________________________


 

In the Superior Court of the State of California

In and for the County of San Mateo

 

Special Set Calendar

Judge: Honorable ELIZABETH K. LEE

Department 17

 

1050 Mission Road, South San Francisco

Courtroom J

 

Friday, June 26, 2015

 

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

3. YOU MUST CALL (650) 261-5112 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 525758       N.A. SALES COMPANY, INC. VS. HAE-SUK LEE, ET AL.

 

 

N.A. SALES COMPANY, INC.              BRIAN H. SONG

HAE-SUK LEE                          

 

 

MOTION FOR ORDER GRANTING RELIEF FROM DEFAULT JUDGMENT AGAINST DEFENDANT JUNE KIM BY JUNE KIM

 

 

·         This matter is continued to July 24, 2015 at 2:00 p.m. before Judge Elizabeth Lee, Department 17. 

 

______________________________________________________________________


2:00

2

CIV 525829       DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING VS. WAYNE

                  McFADDEN, ET AL.

 

 

DEPT. OF FAIR EMPLOYMENT & HOUSING    MEGAN ELSEA

WAYNE McFADDEN                        WAYNE A. McFADDEN 

 

 

MOTION FOR SUMMARY JUDGMENT AGAINST WAYNE McFADDEN BY DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING

 

 

·         This matter is moot.  This action was dismissed with prejudice on April 22, 2015. 

 

______________________________________________________________________

 

 

 

 

 


POSTED:  3:00 PM

 

© 2015 Superior Court of San Mateo County