December 11, 2016
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 jonathan e. karesh

Department 20

 

400 County Center, Redwood City

Courtroom 8C

 

Friday, December 9, 2016

 

NOTICE TO ALL COUNSEL

 

Until further order of the Court, no endorsed-filed “courtesy copy” of pleadings is required to be provided to the Law and Motion Department.

 

 

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

 

1. YOU MUST CALL (650) 261-5019 BEFORE 4:00 P.M. TO INFORM THE COURT OF YOUR INTENT TO APPEAR.

2. You must give notice before 4:00 P.M. to all parties of your intent to appear pursuant to California Rules of Court 3.1308(a)(1).

 

Failure to do both items 1 and 2 will result in no oral presentation.

 

Notifying CourtCall with your intent to appear is not an alternative to notifying the court.

 

All Counsel are reminded to comply with California Rule of Court 3.1110.  The Court will expect all exhibits to be tabbed accordingly. 

 

    Case                  Title / Nature of Case

9:00

Line: 1

16-CIV-00578     PENINAH KANIU vs. DELEON HILL

 

 

PENINAH KANIU                         Brian W. Newcomb

DELEON HILL

 

 

PETITION TO CONFIRM ARBITRATION AWARD

TENTATIVE RULING:

 

Per order signed by the Court on December 5, 2016, the Petition has been continued to February 10, 2017 at 9 a.m. in the Law and Motion Department.  Therefore, the case is ordered off calendar.

 



9:00

Line: 2

16-CIV-00694     SHERRY LANGROCK, et al vs. BHNV CONSTRUCTION, INC.

 

SHERRY LANGROCK                       JAMES R. WALSH

BHNV CONSTRUCTION, INC.

 

 

PETITION TO CONFIRM ARBITRATION AWARD

TENTATIVE RULING:

 

The petition to confirm arbitration award is granted.

 

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 Jonathan E. Karesh, Department 20.  Counsel for the moving party shall also submit a judgment, in the form attached as Exhibit B to the Stipulation and Consent for Entry of Judgment, for Judge Karesh’s signature. 

 



9:00

Line: 3

16-CIV-00814     DAVID A. DAILEY vs. CITY OF MENLO PARK POLICE

                    DEPARTMENT

 

 

DAVID A. DAILEY                       PrO/PER

CITY OF MENLO PARK POLICE DEPARTMENT  Nicolas A. Flegel

 

 

DEMURRE TO PLAINTIFF'S FIRST AMENDED COMPLAINT

TENTATIVE RULING:

 

Demurrer to Plaintiff’s First Amended Complaint is SUSTAINED WITH LEAVE TO AMEND for failure to state a cause of action. The Complaint alleges acts that are immunized under Government Code sections 855.8 and 856. The allegations regarding searching and seizing Plaintiff’s property fail to state a claim. (Welf. & Inst. Code Sect. 5325 & 5156.) The Complaint fails to allege any statutory basis for liability. (Gov’t Code Sect. 815(a).) Finally, the complaint fails to allege that Plaintiff complied with the Tort Claims requirements. (See Gov’t Code Sec. 905, 905.2, 915, & 950.2.)

 

The Plaintiff is to file his amended complaint within 20 days of the service of the notice of entry of order.

 

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, prevailing 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 Jonathan E. Karesh, Department 20.

 



9:00

LineS: 4 & 5   

16-CIV-01430     THE ESTATE OF DIEGO GALINDO, et al vs. BALLY TOTAL

                    FITNESS CORPORATION, et al.

 

 

MARIA GONZALEZ                        MARK J. GERAGOS

BALLY TOTAL FITNESS CORPORATION

 

 

 

4. DEMURRER to COMPLAINT

TENTATIVE RULING:

               

Off calendar at the request of the moving party.

 

5. motion to strike

TENTATIVE RULING:

 

Off calendar at the request of the moving party.

 



9:00

Line: 6

16-CIV-01734     GRANITE HILL INDIA OPPORTUNITIES FUND, L.P., et al.

                     vs. FLUXCAP, LLC, et al.

 

 

GRANITE HILL INDIA OPPORTUNITIES FUND, L.P.    DOMINIQUE L. WINDBERG

FLUXCAP, LLC

 

 

Application to appear as counsel pro hac vice

TENTATIVE RULING:

 

The Application is ordered off calendar because it was removed to Federal Court on November 10, 2016.

 



9:00

Line: 7

CIV528707     FLETCHER HYLER, ET AL. VS. JAMES IRIZARRY

 

 

FLETCHER HYLER                        Pro/per

JAMES IRIZARRY                        EDWARD J. RODZEWICH

 

 

Motion for summary of judgment/adjudication of issues

TENTATIVE RULING:

 

The unopposed Motion of Defendant Pacific Gas and Electric Company (“PG&E”) for Summary Judgment, or, in the alternative, Summary Adjudication, to the First Amended Complaint of Plaintiffs Fletcher Hyler and Sheryl Root (“Plaintiffs”), is ruled on as follows:

 

PG&E’s Motion for Summary Judgment is GRANTED. 

 

A defendant moving for summary judgment must show that either:  (1) one or more elements of a cause of action cannot be established, or (2) there is a complete defense to that cause of action.  (C.C.P. § 437c(p)(2).)  A defendant may meet this burden of showing that an essential element of plaintiff’s claim cannot be established by presenting evidence that a plaintiff does not possess and cannot reasonably obtain needed evidence.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.) 

 

PG&E has met its burden here of establishing that Plaintiffs do not possess and cannot reasonably obtain needed evidence, to support that PG&E caused the fire with respect to the Fourth Cause of Action for Negligence and Eighth Cause of Action for Products Liability.  (See Defendant’s Undisputed Material Facts nos. 1-12, and Holl Decl., Exhs. A-G.)

 

Once a defendant has met this burden of proof, the burden then shifts to plaintiff to raise a triable issue of fact as to that element of the cause of action.  (C.C.P. § 437c(p)(2).)  Plaintiffs have not opposed this motion, and therefore fail to raise a triable issue of material fact as to these claims.

 

Judgment is therefore GRANTED.  Plaintiffs’ claims against PG&E are DISMISSED.

 

PG&E also asks in a footnote that judgment be entered as to the Cross-Complaint brought by Defendant and Cross-Complainant James Irizarry (“Irizarry”) against PG&E, if this motion is granted.  Such a motion is not properly before the court though, as the notice of motion fails to indicate that summary judgment is also sought to Irizarry’s Cross-Complaint.  (See C.C.P. § 1010; Cal. Rules of Court, Rule 3.1110(a) )

 

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, prevailing 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 Jonathan E. Karesh, Department 20.

 



9:00

Line: 8

CIV530278     GERALD BALDWIN, ET AL. VS. PETER YIMMING NG

 

 

GERALD BALDWIN                        JOEL H. SIEGAL

PETER YIMMING NG                      Lee J. Danforth

 

 

MOTION FOR ORDER DETERMINING GOOD FAITH SETTLEMENT BY CHANGRU LI

TENTATIVE RULING:

 

Defendants Changru Liu’s and Yuanliang Yu’s Motion for Order Determining Good Faith Settlement is GRANTED.  Per the moving defendants’ Nov. 23, 2016 Supplemental Brief and supporting declaration, despite initially opposing this motion, non-settling defendant Peter Yimming Ng later signed a Stipulation on Oct. 20, 2016 agreeing that Plaintiffs’ settlement with defendants Liu and Yu was made in good faith pursuant to Code Civ. Proc. Sect. 877.6.  Thus, all parties now support this motion and have jointly requested the Court’s determination that the settlement was entered into in good faith.  Further, defendant Liu tendered the limits of his insurance policy despite evidence indicating that Liu and Yu have minimal liability exposure.  Accordingly, the Court finds the settlement was entered into in good faith under Code Civ. Proc. Sect. 877.6 and Tech-Built, Inc. v. Woodward-Clyde Associates (1985) 38 Cal.App.3d 488, 499.  

 

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, prevailing 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 Jonathan E. Karesh, Department 20.

 



9:00

Line: 9

CIV537436     CHARLENE WING WO, et al. VS. MINGPING FAN, ET AL.

 

 

CHARLENE WING WO                      MARK C. WATSON

MINGPING FAN                          EVAN A. CHAN

 

 

motion TO ENFORCE SETTLEMENT

TENTATIVE RULING:

 

Defendants’ Motion to Enforce Settlement Agreement is GRANTED in part.

 

It is ORDERED that: (1) Plaintiffs shall turn over the tenants’ security deposits of $4,800 to Defendants; (2) Plaintiffs shall pay Defendants $167.81 per day from October 10, 2016 until Plaintiffs signed and turned over the grant deed to Defendants on November 12, 2016 for interest on the $612,500; and (3) Plaintiffs shall pay Defendants $2,860.00 in attorney’s fees and costs for the fees and costs incurred in filing this motion. (Presumably, but for the Veterans’ Day holiday, the grant deed would have been received in the mail on Nov. 11, 2016, therefore Nov. 12, 2016 is chosen as the date of receipt.)

 

A security deposit is property of the tenant, to be held in trust for the tenant by the landlord. Plaintiffs have transferred their ownership interest in the property to the Defendants; therefore they no longer have any right or interest in the tenants’ security deposit.

 

Plaintiffs failed to timely sign and turn over the grant deed to the property, necessitating the filing of this motion; therefore Plaintiffs shall pay Defendants attorney’s fees and costs incurred of $2,860.

 

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, prevailing 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 Jonathan E. Karesh, Department 20.

 



9:00

Lines: 10 - 12

CIV537635     USS CAL BUILDERS, INC. VS. PROJECT FROG, INC.

 

 

USS CAL BUILDERS, INC.                MARK A. FELDMAN

PROJECT FROG, INC.                    JORDAN A. RODMAN

 

 

10. Joint Motion for change of venue

TENTATIVE RULING:

 

Defendants Project frog, Inc. and ACIC’s Joint Motion for Change of Venue Is DENIED.

 

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, prevailing 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 Jonathan E. Karesh, Department 20.

 

11. Joint Motion to Consolidate CIV537635

TENTATIVE RULING:

 

Plaintiff USS CAL Builders, Inc. and Arch Insurance Company ‘s Motion to Consolidate San Mateo County Superior Court case No. 537635 with San Mateo County Superior Court case Nos. 537635, 538555, 538968 and 538989 is GRANTED pursuant to CCP §1048.  The cases involve the same or similar parties and similar claims; arise from the same or substantially identical transactions, incidents and events, requiring the determination of the same or substantially identical questions of law or fact; involve claims against title to, possession of, or damages to the same property and are likely to require substantial duplication of judicial resources if heard in separate forums.

 

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, prevailing 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 Jonathan E. Karesh, Department 20.

 

12. Motion to transfer

TENTATIVE RULING:

 

Plaintiff USS CAL Builders, Inc. and Arch Insurance Company ‘s Motion to Transfer San Francisco Superior Court Case Number CGC-16-554758. Project Frog, Inc. v. USS CAL Builders, Inc., is MOOT. The Court heard a motion to transfer this case as part of USS CAL Builders, Inc. and Arch Insurance Company ‘s Motion to Consolidate and Transfer which was heard on December 1, 2016. At that hearing, the court consolidated San Mateo County Superior Court case Nos. 537635, 538555, 538968 and 538989 and ordered the San Francisco case [Project Frog v. USS Cal Builders, case No. CGC-16-554758 transferred to San Mateo County pursuant to CCP §403, CRC 3.500(c).

 

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, prevailing 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 Jonathan E. Karesh, Department 20.

 



9:00

Line: 13

CIV539125     MISSION CITY REBAR, INC. VS. CAL-PACIFIC CONSTRUCTIO

 

 

MISSION CITY REBAR, INC.              ARMAND M. ESTRADA

CAL-PACIFIC CONSTRUCTION, INC.        Patricia Walsh

 

 

motion to compel arbitration AND FOR STAY

TENTATIVE RULING:

 

Defendants CAL-PACIFIC CONSTRUCTION, INC.; HARTFORD FIRE INSURANCE COMPANY; and HARTFORD CASUALTY INSURANCE COMPANY’s Petition to Compel Arbitration and Stay Action is DENIED.  Defendants have not demonstrated, and the Court does not find, that an agreement to arbitrate the controversy exists.  In support of its petition, Defendants submit a heavily edited document “Long Form Standard Subcontract” which was apparently signed by Plaintiff on August 17, 2015, but was never executed by CAL-PACIFIC.  (Decl. Chan, Exhibit A.)  The Court does not find that Plaintiff made a judicial admission with respect to agreeing to arbitrate this controversy, as Defendants contend.  As no agreement to arbitrate exists, the instant petition is 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.

 

 


 

 

 

 

 


POSTED:  3:00 PM

 

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