September 2, 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

 

AUGUST 29, 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 505103       DAVID KAROW, ET AL. VS. CARMEN MENDOZA MADRIGAL, ET

                   AL.

 

 

DAVID KAROW                           JOSHUA JK HENDERSON

CARMEN MENDOZA-MADRIGAL               MARK C. RASKOFF

 

 

MOTION TO QUASH AND/OR FOR PROTECTIVE ORDER RE: DEFENDANTS’ DEPOSITION SUBPOENA AND MONETARY SANCTION REQUEST AGAINST DEFENDANTS AND/OR COUNSEL OF RECORD BY DAVID KAROW AND TIFFANY KAROW

 

 

·         This matter has been taken off calendar at the request of the moving parties, Plaintiffs David Karow and Tiffany Karow.

 

_____________________________________________________________________

9:00

2

CIV 508084       MARTIN HERNANDEZ, ET AL. VS. MARCELINO ROCHA-MORALES,

                   ET AL.

 

 

MARTIN HERNANDEZ                      ARNOLDO CASILLAS

MARCELINO ROCHA-MORALES               CHRISTINA E. KIM

 

 

MOTION FOR SUMMARY JUDGMENT AS TO COMPLAINT of HERNANDEZ BY SUNPAY INTERNATIONAL, INC. DBA SUBWAY, SUNIL SEHGAL AND PAYAL SEHGAL

 

 

·         Defendants’ Motion for Summary Judgment on the ground that Defendants owed Plaintiff no duty is denied.  Defendants failed to meet their burden. Defendants presented no evidence showing Plaintiff was an independent contractor, that they did not retain control over the work or safety conditions at the jobsite or that exercise of retained control did not contribute to Plaintiff’s injuries. 

 

·         Defendants’ Motion for Summary Judgment on the ground that the Worker’s Compensation provides Plaintiff’s exclusive remedy is denied.  Defendants failed to meet their burden.  Defendants failed to present evidence showing Plaintiff was an employee.

 

·         Plaintiff’s request for a stay is denied without prejudice to Plaintiff bringing a noticed motion.

 

·         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 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 519760       DEAN DELIS VS. DAVID MORRIS, ET AL.

 

 

DEAN DELIS                            STEVEN M. SHERMAN

DAVID MORRIS

 

 

MOTION TO BE RELIEVED AS COUNSEL FOR DEAN DELIS BY STEVEN M. SHERMAN

 

 

·         This motion has been taken off calendar.  A Substitution of Attorney form has been filed with the court.

 

_____________________________________________________________________

9:00

4

CIV 521183       ROBERTO LEMUS, ET AL. VS. MARCIE ANN WALTER

 

 

ROBERTO LEMUS                         MARK D. ROSENBERG

MARCIE ANN WALTER                     KEVIN K. CHOLAKIAN

 

 

MOTION FOR LEAVE OF COURT FOR AN ORDER FOR A MENTAL EXAMINATION OF PLAINTIFF ROBERTO LEMUS BY MARCIE ANN WALTER

 

 

·         See below.

 

 

MOTION TO REOPEN DISCOVERY BY MARCIE ANN WALTER

 

 

·         The Motion to Reopen Discovery for the limited purpose of conducting a mental examination of Plaintiff is granted.  The Motion for Order That Plaintiff Undergo a Mental Examination is granted.  The examination shall be conducted by Dr. Joanna Berg on September 18, 2014, at 10:00 a.m., at 5665 College Ave., Suite 240E, Oakland, CA 94618 or at a date and place agreed between the parties in writing.

 

·         The ex parte application before Judge Lisa A. Novak was for an Order Shortening Time, which was denied for procedural reasons.  The motion before Judge Robert D Foiles was to continue trial, which was denied.  The present motion to reopen discovery and for order of a mental examination, therefore, has never been addressed on the merits by any department of this Court.

 

·         The Court recognizes the policies behind enforcing discovery deadlines, but the Court weighs them against the strong policy of conducting trial on the merits.  Denying the present motion would severely prejudice Defendant by forcing her to defend against emotional distress claims without the benefit of discovery. In contrast, granting the motion will prejudice Plaintiff only to the extent that trial will be on the merits instead of uneven.

 

·         Given that the trial date has been continued to April 2015, the granting of these two motions by Defendant will not cause any delay of trial.

 

·         The Court grants Plaintiff’s request for a sanction of $1,400.00 for having to oppose these motions.  If Defendant’s previous counsel, Philip M. Anderson and Associates, had conducted discovery diligently, the present motions and the previous two motions likely would not have been necessary.  For that reason, the sanction is against Defendant Marcie Ann Walter and not Defendant’s present counsel, Cholakian and Associates.

 

·         Further, Defendant shall pay reasonable attorney’s fees incurred by Plaintiff  to oppose (a) the Ex Parte Application for Order Shortening Time to hear Motion to Reopen discovery (April 24, 2014),  (b) the Ex Parte Application for Order Shortening Time to hear Motion to Continue Trial (May 1, 2014) and the Motion to Continue Trial (May 13, 2014).  Plaintiff’s counsel shall file and serve a declaration no later than September 5, 2014 detailing the reasonable fees incurred for these matters, plus supporting exhibits if necessary.  Defendant may file and serve an opposition of five (5) pages no later than September 19, 2014.  The Court will issue a ruling on attorney’s fees by mail.

 

·         If the tentative ruling is uncontested, it shall become the order of the Court.  Thereafter, Plaintiff’s counsel shall prepare for the Court’s signature a written order consistent with the above ruling, 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.

 

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9:00

5

CIV 522523       CATHERINE BULJAN VS. EVA ABER, ET AL.

 

 

CATHERINE BULJAN                      PRO/PER

EVA ABER                              JAMES D. FRANGOS

 

 

MOTION TO SET ASIDE ENTRY OF DEFAULT JUDGMENT OR, IN THE ALTERNATIVE, MOTION FOR RELIEF FROM DISMISSAL, OR ORDER TO VACATE DISMISSAL AND VACATE DEFAULT JUDGMENT BY CATHERINE BULJAN

 

 

·         Plaintiff’s Motion to Set Aside Default and Default Judgment is DENIED.  Plaintiff has failed to comply with the requirements of CCP § 473.  Plaintiff’s motion fails to establish by a preponderance of the evidence that the dismissal of Plaintiff’s Complaint was caused by Plaintiff’s mistake, inadvertence, surprise or excusable neglect. Plaintiff has submitted no competent or admissible evidence in support of the motion.

 

·         Defendant’s Request for Sanctions pursuant to CCP § 473(c) is DENIED.  Defendants have failed to submit any competent or admissible evidence in support of the request for sanctions.

 

·         The moving 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 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 Elizabeth K. Lee in Department 17.

 

_____________________________________________________________________

9:00

6

CIV 524759       GINGER CHARLES, ET AL. VS. WELLS FARGO, ET AL.

 

 

GINGER CHARLES                        MATTHEW MELLEN

WELLS FARGO BANK, N.A.                EDWARD R. BUELL

 

 

DEMURRER TO SECOnd Amended COMPLAINT of CHARLES BY WELLS FARGO BANK, N.A. AND HSBC BANK USA, NATIONAL ASSOCIATION

 

 

·         This matter has been continued to September 29, 2014 at 9:00 a.m. in the Law and Motion Department.

 

_____________________________________________________________________

9:00

7

CIV 526546       ROSE BLUM VS. SEQUOIA MEDICAL ASSOCIATES, INC.

 

 

ROSE BLUM                             PRO/PER

SEQUOIA MEDICAL ASSOCIATES, INC.      SUSAN ZEME

 

 

MOTION FOR RELIEF FROM DEFAULT AND REQUEST FOR SANCTIONS BY SEQUOIA MEDICAL ASSOCIATES, INC.

 

 

·         The uncontested Motion to Set Aside Default filed by Defendant Sequoia Medical Associates, Inc. is DENIED.  Defendant has failed to provide the Court with a valid Proof of Service as required by CCP § 1010, et seq.  Defendant, if it is able, may bring a valid Proof of Service to court on August 29, 2014; if Defendant is planning to do this, the opposing party must be notified.

 

·         If the defendant brings to court a valid Proof of Service, Defendant Sequoia Medical Associates, Inc.’s Motion to Set Aside the Default will be GRANTED.  Defendant has established by a preponderance of the evidence that the default entered against Defendant Sequoia Medical Associates, Inc. was a result of mistake, inadvertence, surprise or excusable neglect.  In addition, Defendant Sequoia Medical Associates, Inc. has established by a preponderance of the evidence that the default was entered as a result of the mistake, inadvertence, surprise or excusable neglect of counsel for Sequoia Medical Associates, Inc.  Defendant Sequoia Medical Associates, Inc. has filed a timely Motion to Set Aside the Default pursuant to CCP § 473 (b).  Sequoia Medical Associates, Inc. shall serve a response to Plaintiff’s Complaint within ten (10) days after service of notice of entry of the order setting aside the default against Sequoia Medical Associates, Inc.

 

·         Defendant Sequoia Medical Associates, Inc.’s Request for Monetary Sanctions is DENIED without prejudice.  At the time that the Motion to Set Aside the Default was filed, Defendant Sequoia Medical Associates, Inc. was in default as to the Complaint.  The only relief that Defendant Sequoia Medical Associates, Inc. requested at that time was to ask the Court to set aside the default.

 

·         The moving 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 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 Elizabeth K. Lee in

 

Department 17.

 

_____________________________________________________________________

9:00

8

CIV 527299       CHANTEL JOHNSON VS. FOSTER FAMILY HOME AND SMALL

                   FAMILY HOME INSURANCE FUND

 

 

CHANTEL JOHNSON                       GERALD SINGLETON

FOSTER FAMILY HOME                    SUSAN J. KAWALA

 

 

DEMURRER TO COMPLAINT of CHANTEL JOHNSON BY FOSTER FAMILY HOME AND SMALL FAMILY HOME INSURANCE FUND

 

 

·         Defendant FOSTER FAMILY HOME AND SMALL FAMILY HOME INSURANCE FUND’s Demurrer to Complaint is OVERRULED in its entirety as to Plaintiff’s sole cause of action for negligence. 

 

·         The Complaint is timely filed pursuant to Health & Safety Code § 1527.6(b); Rodriguez v. Superior Court (2003) 108 Cal.App.4th 301.  The Complaint does not show, on its face, that Plaintiff’s claim arises out of “criminal acts” committed by her foster parents such that it is excluded by Health & Safety Code § 1527.3(a) nor is this demonstrated by any matters judicially noticed.  Further, pursuant to Estate of McGowan (1973) 35 Cal.App.3d 611, an independent examination of the facts is necessary to determine whether Moore actually committed a criminal offense for the purpose of this proceeding.  Finally, Defendant’s third through sixth grounds for demurrer are misplaced as the Complaint makes clear that Defendant is being sued in its capacity as an insurance fund for foster homes and not for any act or omission committed by the FUND itself. 

 

·         Defendant’s Request for Judicial Notice is GRANTED as to Exhibit No. 2.  As to the remainder of the exhibits, judicial notice is GRANTED insofar as these documents were filed with various governmental entities, but not as to the truth of any matters asserted therein. 

 

·         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 Elizabeth K. Lee, Department 17.

 

_____________________________________________________________________

9:00

9

CIV 528839       DAVID CLAVEAU, ET AL. VS. WEBCOR, L.P., ET AL.

 

 

DAVID CLAVEAU                         DANIEL W. SMITH

WEBCOR, L.P.                          SANDY KAPLAN

 

 

DEMURRER TO COMPLAINT of CLAVEAU BY WEBCOR, L.P.; WEBCOR CONSTRUCTION, L.P. DBA WEBCOR BUILDERS; W HOLDINGS, L.P.; W INVESTORS, L.P. AND PARAMOUNT INVESTORS, LLC

 

 

·         Defendants’ Demurrer to the 1st, 2nd and 3rd Causes of Action of Plaintiffs’ Complaint is SUSTAINED with leave to amend. 

 

o   Plaintiff’s 1st Cause of Action does not provide sufficient facts to constitute a cause of action for breach of contract under CCP § 430.10(e).  Plaintiffs have not alleged the condition precedent of having sufficient funds available to make payments to Plaintiffs pursuant to Section 7.06(b)(iv) of the Limited Partnership Agreements.  Consolidated World Investments, Inc. v. Lido Preferred Ltd. (1992) 9 Cal.App.4th 373, 380.  The plain language of the “Limits” section at issue provides that if the “excess” is sufficiently large, payments to the limited partners may be reduced in the order of limited partners who separated by termination, retirement/disability or death.  Thus, it is possible that the “excess” in the past years was sufficiently large that it reduced the payments to limited partners who separated from the partnership by termination or retirement/disability to zero in order to provide for those limited partners who separated from the partnership by their death.

 

o   Plaintiffs’ 2nd and 3rd Causes of Action for open book account and account stated do not provide sufficient facts to constitute a cause of action because they are based on the same set of facts and seek the same recovery as Plaintiffs’ 1st Cause of Action.  “If plaintiff is not entitled to recover under one count in a complaint wherein all the facts upon which his demand is based are specifically pleaded, it is proper to sustain a demurrer to a common count set forth in the complaint, the recovery under which is obviously based on the set of facts specifically pleaded in the other count.”  Zumbrun v. University of Southern California (1972) 25 Cal.App.3d 1, 14.

 

  • Defendants’ Demurrer for Uncertainty is OVERRULED.  Demurrers for uncertainty are disfavored.  This ground will only be sustained where the complaint is so bad that the Defendant cannot reasonably respond.  See Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 fn 2.  Here, although Plaintiffs have failed to specifically allege which causes of action are alleged against each defendant, Plaintiffs do allege “that at all times mentioned in this complaint the defendants and each of the defendants were the agents and employees of each of the remaining defendants and in doing the things herein alleged were acting within the purpose and scope and course of agency and employment and with the permission and consent of each other.”  Paragraph 12 of the Complaint.  This is sufficient to overrule the demurrer.

 

·         Demurring 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 Elizabeth K. Lee, Department 17.

 

_____________________________________________________________________

9:00

10

CIV 528919       LORI WILLIAMS VS. CARPENTERS UNION LOCAL #217

 

 

LORI WILLIAMS                         PRO/PER

CARPENTERS UNION LOCAL #217           ROBERTA D. PERKINS

 

 

MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT BY CARPENTERS UNION LOCAL #217

 

 

·         Defendant Carpenters Union Local #217’s Motion to Quash Service of Summons and Complaint is GRANTED.  Plaintiff has not complied with any of the statutory methods by which service of a summons and complaint can be accomplished.  There has been no compliance with CCP § 416.40(b) because the person served is not an officer of Union Local #217 nor is she authorized to accept service on behalf of the Local.  There has been no compliance with substituted service under CCP § 415.20 because she did not mail the Summons and Complaint to the address where the Summons and Complaint were left.  Additionally, the Summons served on Defendant has not been issued by the court in compliance with CCP § 412.20.  See Exhibit 1 attached to the Declaration of Counsel (Roberta D. Perkins) in Support of Motion to Quash.

 

·         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 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 524184       GE CAPITAL RETAIL BANK VS. CRISTHIAN LEMUSCHACON

 

 

GE CAPITAL RETAIL BANK                TARA MUREN

CRISTHIAN LEMUSCHACON                 PRO/PER

 

 

MOTION FOR LEAVE TO FILE AND SERVE FIRST AMENDED COMPLAINT BY GE CAPITAL RETAIL BANK FKA GE MONEY BANK

 

 

·         Plaintiff GE Capital Retail Bank’s unopposed Motion to File a First Amended Complaint is GRANTED pursuant to CCP § 473(a)(1).

 

·         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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POSTED:  3:00 PM

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