November 23, 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 JOSEPH C. SCOTT

Department 25

 

400 County Center, Redwood City

Courtroom 2L

 

NOVEMBER 21, 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 503541       ELIZABETH KARNAZES VS. KIRSTEN JEAN PETERSEN

 

 

ELIZABETH KARNAZES                    ELIZABETH KARNAZES

KIRSTEN JEAN PETERSEN                 PRO/PER

 

 

MOTION TO QUASH SERVICE OF PROCESS ON PETITIONER’S REQUEST TO RENEW RESTRAINING ORDER BY KIRSTEN FERRY

 

 

·         On June 16, 2014, Petitioner Elizabeth Karnazes filed a Motion to Renew the Restraining Order issued in this case.  After several continuances that motion was heard by Judge Gerald J. Buchwald on October 23, 2014.  He granted the motion and the restraining order has been extended to October 22, 2015.  The hearing on the Motion to Renew was held despite the fact that on October 22, 2014, Respondent Kirsten Ferry had filed a Motion to Quash Service of the petitioner’s Motion to Renew the Restraining Order.

 

·         Respondent’s Motion to Quash Service is currently set for hearing in the Law and Motion department on November 21, 2014.  However, in granting the petitioner’s unopposed Motion to Renew the Restraining Order, Judge Buchwald has implicitly determined that service of the motion on Respondent was proper.  The Motion to Quash Service is essentially a motion for reconsideration of Judge Buchwald‘s determination that service was proper when he ruled in favor of Petitioner on her Motion to Renew the Restraining Order.

 

·         Consequently, the Motion to Quash Service of the Motion to Renew should be heard by Judge Buchwald in Department 10.  Respondent is directed to contact Department 10 [(650) 261-5110] to arrange a special set hearing on her Motion to Quash.

 

_____________________________________________________________________

9:00

2

CIV 503749       ELIZABETH KARNAZES VS. JOHN EARL FERRY

 

 

ELIZABETH KARNAZES                    ELIZABETH KARNAZES

JOHN EARL FERRY                       PRO/PER

 

 

MOTION TO QUASH SERVICE OF PROCESS ON PETITIONER’S REQUEST TO RENEW RESTRAINING ORDER BY JOHN E. FERRY

 

 

·          On June 16, 2014, Petitioner Elizabeth Karnazes filed a Motion to Renew the Restraining Order issued in this case.  After several continuances that motion was heard by Judge Gerald J. Buchwald on October 23, 2014.  He granted the motion and the restraining order has been extended to October 22, 2015.  The hearing on the Motion to Renew was held despite the fact that on October 22, 2014, Respondent John Ferry had filed a Motion to Quash Service of the petitioner’s Motion to Renew the Restraining Order.

 

·         Respondent’s Motion to Quash Service is currently set for hearing in the Law and Motion department on November 21, 2014.  However, in granting the petitioner’s unopposed Motion to Renew the Restraining Order, Judge Buchwald has implicitly determined that service of the motion on Respondent was proper.  The Motion to Quash Service is essentially a motion for reconsideration of Judge Buchwald‘s determination that service was proper when he ruled in favor of Petitioner on her Motion to Renew the Restraining Order.

 

·         Consequently, the Motion to Quash Service of the Motion to Renew should be heard by Judge Buchwald in Department 10.  Respondent is directed to contact Department 10 [(650) 261-5110] to arrange a special set hearing on his Motion to Quash.

 

_____________________________________________________________________

9:00

3

CIV 511486       WAYNE T. KENNEDY, ET AL. VS. LEONARD BIALER, ET AL.

 

 

WAYNE T. KENNEDY                      HELENE A. SIMVOULAKIS

LEONARD BIALER                        ARON K. LIANG

 

 

MOTION TO COMPEL DEFENDANT LEONARD BIALER'S RESPONSES TO SPECIAL INTERROGATORIES, SET TWO; DEMAND FOR PRODUCTION OF DOCUMENTS, SET TWO AND FORM INTERROGATORIES, SET TWO AND FOR AN ORDER COMPELLING FURTHER RESPONSES TO REQUESTS FOR ADMISSIONS, SET ONE, NOS. 5, 6, 10 AND 11; REQUEST FOR MONETARY SANCTIONS AGAINST DEFENDANT LEONARD BIALER AND FOR AN ORDER THAT REQUESTS FOR ADMISSION, SET ONE RE: FACTS NOS. 1-4, 7-9, 12-15 AND GENUINENESS OF DOCUMENT NOS. 1-97 BE DEEMED ADMITTED AGAINST DEFENDANT LEONARD BIALER BY WAYNE T KENNEDY AND LORELEI F. ROCKWELL, INDIVIDUALLY AND AS TRUSTEES OF THE KENNEDY/ROCKWELL 1998 TRUST

 

 

·         The Motion to Compel, Compel Further and Deem Matters Admitted brought by Plaintiffs WAYNE T. KENNEDY and LORELEI F. ROCKWELL, individually and as Trustees of the KENNEDY/ROCKWELL 1998 TRUST is GRANTED as follows: 

 

·         The Motion to Compel Responses to Special Interrogatories (Set Two); Form Interrogatories (Set Two) and Request for Production of Documents (Set Two) is GRANTED pursuant to Code Civ. Proc. §§ 2030.290(b) and 2031.300(b).  Having failed to provide a timely response, Defendant LEONARD BIALER has waived all objections to this discovery.  [Code Civ. Proc. §§ 2030.290(a) and 2031.300(a)].  Defendant is ordered to provide full and complete, verified responses, without objections, no later than December 5, 2014.

 

·         The Motion to Compel Further Responses to Request for Admissions (Set One), Requests Re: Facts Nos. 5, 6, 10 and 11 is GRANTED.  Code Civ. Proc. § 2033.220(b) requires that a response to request for admission shall clearly admit or deny the request, with qualifications as necessary.  Here, Defendant’s responses to the foregoing do not comply with Section 2033.220(b) because they do not contain an admission or denial.  Defendant is ordered to provide Code-compliant, verified responses to these requests no later than December 5, 2014.

 

·         The Motion to Deem Matters Admitted is GRANTED as to Request for Admissions Re: Facts Nos. 1-4, 7-9, 12-15 and Request for Admissions Re: Genuineness of Documents Nos. 1-97 on the ground that the responses are unverified.  Code Civ. Proc. § 2033.240(a) requires that a response to request for admissions must be verified, unless the response contains only objections.  An unverified response is the same as no response at all.  [Food 4 Less Supermarkets, Inc. v. Superior Court (1995) 40 Cal.App.4th 651, 654].  Where a proper, timely response is not given, Code Civ. Proc. § 2033.280 permits the propounding party to move for an order that the genuineness of any documents and truth of any matters specified in the requests be deemed admitted.

 

·         Plaintiffs’ Request for Monetary Sanctions against Defendant is GRANTED in the amount of $1,160.00, which is to be paid no later than December 5, 2014.

 

·         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

4

CIV 519105       MATTHEW COUGHLIN VS. METROPOLITAN LIFE INSURANCE CO.,

                   ET AL.

 

 

MATTHEW COUGHLIN                      NICOLE N. HANCOCK

METROPOLITAN LIFE INSURANCE CO.       DENNIS F. MORIARTY

 

 

MOTION FOR LEAVE TO FILE AMENDED CROSS-COMPLAINT BY METROPOLITAN LIFE INSURANCE CO.

 

 

·         The Motion for Leave to File an Amended Cross-Complaint, brought by  Metropolitan Life Insurance Co., is GRANTED.  It would appear that the causes of action Metropolitan Life seeks to add are compulsory (CCP § 426.30(a)).  There has been no showing that Metropolitan Life has acted in bad faith.  (CCP § 426.50.)  In the event that the causes of action are not compulsory, Metropolitan Life has provided an explanation for its delay in seeking leave to amend.  Questions as to whether some of the new causes of action fail to state facts sufficient or are barred by the statute of limitations are better left to demurrer and/or summary adjudication.  In order to avoid prejudice to Defendant Perseid, the Court orders that its upcoming Motion for Summary Judgment be treated as one for summary adjudication.

 

·         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 Joseph C. Scott, Department 25.

 

_____________________________________________________________________

9:00

5

CIV 521423       ROSALIO AVINA, ET AL. VS. BANK OF AMERICA, N.A., ET

                   AL.

 

 

ROSALIO AVINA                         NICK PACHECO

BANK OF AMERICA, N.A.                 ERIC D. HOUSER

 

 

MOTION FOR ORDER DISMISSING ACTION AND FOR ENTRY OF A JUDGMENT OF DISMISSAL; REQUEST FOR JUDICIAL NOTICE BY MARJORIE BERGER, INDIVIDUALLY AND DBA EXPERT FINANCIAL

 

 

·         The unopposed Motion for Order Dismissing Action and for Entry of a Judgment of Dismissal, brought by Defendant Marjorie Berger, individually and dba Expert Financial is GRANTED pursuant to CCP § 581(c).

 

·         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 523065       RAEL & LETSON VS. MICHAEL CLARK, ET AL.

 

 

RAEL & LETSON                         MICHAEL S. DORSI

MICHAEL CLARK                         PAUL J. BARULICH

 

 

MOTION TO COMPEL (1) THE PRODUCTION OF MICHAEL CLARK AND/OR SUSAN CLARK’S AMERICAN EXPRESS COSTCO CARD, BANK OF AMERICA VISA AND BANK OF AMERICA MASTERCARD STATEMENTS FROM 2003 THROUGH 2013 AND (2) MICHAEL CLARK’S TESTIMONY REGARDING THE IRS AUDIT BY RAEL & LETSON

 

 

·         The Motion to Compel Michael Clark’s testimony regarding the IRS audit is DENIED.  The moving party did not comply with California Rules of Court, Rule No. 3.1345(a) (4) regarding the requirement of a separate statement.  The response to questions at the deposition were objections, thus a separate statement is required.

 

·         The Motion to Compel Michael Clark to produce certain credit card statements is DENIED.  It is clear that Mr. Clark is asserting his lack of possession of the credit card statements as a reason for his not producing the statements.  Mr. Clark states that the documents are in his former office, and he even offered to get them for Plaintiff if he is allowed back into his office.  Apparently, this offer was refused resulting in the current motion.

 

·         Based on the foregoing, the only way Mr. Clark could comply with the Document Demand is for him to request copies of the credit card statements from the various credit card companies and wait for their processing.  It would be futile to order Mr. Clark to complete production by a date certain because he has no control over the credit card companies.  It should be noted that Plaintiff elected not to subpoena the documents from the various credit card companies.

 

·         Requests for Sanctions are DENIED.

 

·         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

7

CIV 523261       APELU FINAUGA, ET AL. VS. REMY'S QUALITY

                   CONSTRUCTION, INC., ET AL.

 

 

APELU FINAUGA                         CONOR GRANAHAN

REMY'S QUALITY CONSTRUCTION, INC.     DAN BEATTY

 

 

MOTION TO EXLCUDE EVIDENCE OF PLAINTIFF APELU FINAUGA'S NEUROPSYCHOLOGICAL INJURIES AND TO RECOUP EXPERT WITNESS FEES FOR NON-APPEARANCE AT SCHEDULED INDEPENDENT MEDICAL EXAMINATION BY REMY SIJBRANT

 

 

·         Appear. 

 

_____________________________________________________________________

9:00

8

CIV 523570       AMERICAN EXPRESS CENTURION BANK VS. MICHELLE

                   VANBEMMEL

 

 

AMERICAN EXPRESS CENTURION BANK       LINA M. MICHAEL

MICHELLE VANBEMMEL                    BRAD STUCKEY

 

 

MOTION TO SET ASIDE JUDGMENT BY AMERICAN EXPRESS CENTURION BANK

 

 

·         Plaintiff’s unopposed Motion to Vacate the September 2, 2014 Judgment is GRANTED.  Plaintiff has established by competent or admissible evidence that the judgment should be vacated.  See CCP § 663. 

 

·         The prevailing party is directed to prepare a written order consistent with the court's tentative ruling for the court's signature, pursuant to CRC 3.1312, and to provide notice thereof to all counsel as required by law and the California Rules of Court.  A copy of the order is to be delivered directly to Judge Joseph C. Scott in Department 25.

 

_____________________________________________________________________

9:00

9

CIV 527290       MELODY HAWKINS VS. REBECCA DELGADO

 

 

MELODY HAWKINS                        GARY S. MOBLEY

REBECCA DELGADO                       PRO/PER

 

 

MOTION TO COMPEL FURTHER ANSWERS TO PLAINTIFF’S FIRST SET OF FORM INTERROGATORIES AND FOR AN AWARD OF MONETARY SANCTIONS BY MELODY HAWKINS

 

 

·         Plaintiff’s Motion to Compel Further Answers to Plaintiff’s First Set of Form Interrogatories and for Monetary Sanctions is DENIED without prejudice.  Plaintiff did not include the required separate statement under Cal. Rule of Court, 3.1345.  Sanctions cannot be imposed on Defendant because Plaintiff’s motion was unsuccessful. [CCP § 2030.300(d)].  Plaintiff is not subject to sanctions as she did not file this motion without substantial justification - Defendant’s response to Form Interrogatory 15.1 does appear to be deficient.

 

·         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

10

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

 

 

MARINA FRANCO                         A.K. ABRAHAM

BRUCE G. HEATHCOTE                    DENNIS L. FAORO

 

 

DEMURRER TO COMPLAINT of FRANCO BY BRUCE G. HEATHCOTE, INDIVIDUALLY AND DBA MID PENINSULA MANAGEMENT

 

 

·         Moot in light of the fact that Plaintiffs filed a First Amended Complaint on November 12, 2014.  CCP § 472 authorizes a plaintiff to amend a pleading before hearing of demurrer.

 

·         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.

 

 

DEMURRER TO COMPLAINT of FRANCO BY GERALD E, HEATHCOTE, INDIVIDUALLY AND DBA MPM MAINTENANCE

 

 

·         Moot in light of the fact that Plaintiffs filed a First Amended Complaint on November 12, 2014.  CCP § 472 authorizes a plaintiff to amend a pleading before hearing of demurrer.

 

·         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

11

CIV 530622       CORY NAROG VS. BANK OF NEW YORK MELLON, ET AL.

 

 

CORY NAROG                            MATTHEW MELLEN

BANK OF NEW YORK MELLON

 

 

MOTION TO BE RELIEVED AS COUNSEL FOR CORY NAROG BY MATTHEW MELLEN

 

 

·         The Motion by Plaintiff’s counsel to be Relieved as Counsel for Plaintiff is GRANTED.  Plaintiff’s counsel has established by a preponderance of the evidence there are irreconcilable differences between Plaintiff and Plaintiff’s counsel and that the Motion to be Relieved as Counsel for Plaintiff should be granted.

 

·         The moving party’s counsel is directed to prepare a written order consistent with the court's tentative ruling on the appropriate Judicial Council form for the court's signature, pursuant to CRC 3.1312, and to provide notice thereof to all counsel as required by law and the California Rules of Court.  A copy of the order is to be delivered directly to Judge Joseph C. Scott in Department 25.

 


 

 

 


POSTED:  3:00 PM

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