February 20, 2017
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 RICHARD H. DuBOIS

Department 16

 

400 County Center, Redwood City

Courtroom 7A

 

Friday, February 17, 2017

 

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

Lines: 1 & 2

16-CIV-01446     CARLOS CARRANZA vs. SOUTH SAN FRANCISCO TIRE SERVICE,

                     INC., et al.

 

 

CARLOS CARRANZA                       DANIEL L. FEDER

GEORGE YOUNG                          SARAH E. LUCAS

 

 

 

1. FOR JUDGMENT ON THE PLEADINGS

TENTATIVE RULING:

 

This matter is continued to March 8, 2017 at 9:00 a.m. in the Law and Motion department.

 

2. FOR JUDGMENT ON THE PLEADINGS

TENTATIVE RULING:

 

This matter is continued to March 8, 2017 at 9:00 a.m. in the Law and Motion department.

 

 



9:00

Line: 3

16-CIV-02955     LORELEI ROCKWELL, et al  vs.  O'SHEA'S COMPUTER

                    CONSULTANTS, INC., et al

 

 

LORELEI ROCKWELL                      KAREN M. KUBALA

O'SHEA'S COMPUTER CONSULTANTS, INC.

 

 

HEARING FOR RIGHT TO ATTACH ORDER, ORDER FOR ISSUANCE OF WRIT OF ATTACHMENT

TENTATIVE RULING:

 

This matter is dropped from calendar as a dismissal has been filed.

 



9:00

Lines: 4 & 5

16-CIV-03030     ALICE HUFFMAN, et al. vs. PLCP SF BAY HOTEL OWNER,

                     LLC, et al.

 

 

GWEN MOORE                            JOHN L. BURRIS

PLCP SF BAY HOTEL OWNER, LLC          MARK S. POSARD

 

 

4. Demurrer TO COMPLAINT

TENTATIVE RULING:

 

Defendant PLCP SF BAY HOTEL OWNER, LLC’s unopposed Demurrer to Complaint is DENIED WITHOUT PREJUDICE.  Defendant’s moving papers were not filed and served in accordance with Code Civ. Proc. Sec. 1005.  The Proof of Service indicates that the moving papers were served via U.S. Mail on January 31, 2017, for a hearing on February 17, 2017, which is insufficient.  Moreover, Defendant failed to file a meet-and-confer declaration pursuant to Code Civ. Proc. Sec. 430.41 in support of its 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.

 

 

5. motion to strike

TENTATIVE RULING:

 

Defendant PLCP SF BAY HOTEL OWNER, LLC’s unopposed Motion to Strike is DENIED WITHOUT PREJUDICE.  Defendant’s moving papers were not filed and served in accordance with Code Civ. Proc. Sec. 1005.  The Proof of Service indicates that the moving papers were served via U.S. Mail on January 31, 2017, for a hearing on February 17, 2017, which is insufficient.

 

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

Line: 6

17-CIV-00114     CHARLES TANIGUCHI, et al. vs. RESTORATION HOMES,

                     LLC, et al.

 

CHARLES TANIGUCHI                     MATTHEW MELLEN

RESTORATION HOMES, llc

 

 

MOTION TO CONSOLIDATE HEARING SET ON CIV 525919

TENTATIVE RULING:

 

The Motion to Consolidate Actions 17CIV00114 and CIV525919 is GRANTED.

 

The claims set forth in case number 17-CIV00114 are identical to the facts giving rise to the causes of action against Defendant Restoration Homes in case number CIV 525919. Since trial of both cases would require trial of the same facts and rely on the same witnesses and evidence, consolidation is proper.

 

Defendant contends that filing a new case and moving for consolidation is a mere sham to avoid this Court’s previous ruling denying Plaintiffs’ motion for leave to amend.  The earlier ruling does not necessitate denying consolidation, for several reasons.

 

First, the motion to file a Second Amended Complaint sought to add a new party, drop an existing party, drop the claims for conversion and violation of Civil Code section 2924.17, and add claims for violation of Civil Code section 1788.17, and add claims against Defendant SN Servicing. None of those changes is set forth in the new case, which alleges only two causes of action, both against Defendant Restoration Homes. The new case is different from the previously proposed amendment. Therefore, the present motion is not an “end run” around this Court’s earlier ruling.

 

Second, the Court denied leave to amend in part because of the pending trial date and Plaintiffs’ delay. Subsequent to the Court’s denying that motion, the parties stipulated to continue trial to October 2017, and to extend all trial-related deadlines. The prejudice on December 7, 2016, no longer exists. Defendant has sufficient time to demur, answer, and move for summary judgment.

 

Third, Defendant acknowledges that not only are the cases factually identical, but also that the new action is duplicative of the present action. If that is true, then Defendant presumably needs little, if any, additional discovery on the new claims.  Defendant contends that a demurrer will dispose of the new action. But that demurrer may occur regardless of consolidation. On its face, however, the new action alleges different legal theories, which might survive a demurrer for “another action pending.”

 

Defendant argues that the new action constitutes an impermissible splitting of causes of action. Consolidation cures that defect. In the alternative to consolidating the actions, Defendant may, at its option, stipulate that Plaintiffs file a Second Amended Complaint that incorporates, verbatim, the complaint in 17-CIV-00114, and then dismiss the newer action.  Otherwise:

 

The actions are ordered consolidated and shall proceed under Case Number CIV 525919 as the lead case.

 

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 Richard H. DuBois, Department 16.

 



9:00

Line: 7

17-UDL-00051     SUSAN KRUEGER vs. DANA T. KITAURA, et al.

 

 

SUSAN KRUEGER

DANA T. KITAURA                       ALEXANDRIA C. KAVALARIS

 

 

demurer TO PLAINTIFF'S COMPLAINT

TENTATIVE RULING:

 

Defendant Dana Kitaura’s Demurrer to Plaintiff’s Complaint is OFF CALENDAR and this action is STAYED pending a determination of the parties’ respective rights regarding ownership and possession of the house at issue, located at 427 Park St. in Redwood City, in the parties’ related Family Law Case, No. FAM0118921.  The Court in the family law case previously addressed the parties’ rights to this property.  See Sept. 16, 2014 Judgment in the family law case, attaching the parties’ Marital Settlement Agreement, which states that the house shall be held in joint tenancy.  The Court is aware of Plaintiff’s contention that she now owns the property outright by virtue of a June 2014 Grant Deed.  Defendant, however, contends the parties’ rights to possession of the house “is currently being adjudicated by the family law court.”  Reply Brief at 4.  The family law court specifically reserved jurisdiction over this property.  The parties are requested to seek a determination/clarification of their respective rights regarding the house in the family law case.  Once that issue has been resolved, the parties may revisit this issue in this unlawful detainer action or file a request for dismissal, whichever is applicable. 

 

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

Line: 8

CIV525919     CHARLES TANIGUCHI, ET AL. VS. RESTORATION HOMES LLC

 

 

CHARLES TANIGUCHI                     EUNJI CHO

RESTORATION HOMES LLC                 GLENN H. WECHSLER

 

 

MOTION TO CONSOLIDATE

TENTATIVE RULING:

 

The Motion to Consolidate actions 17CIV00114 and CIV525919 is GRANTED.

 

The claims set forth in case number 17-CIV00114 are identical to the facts giving rise to the causes of action against Defendant Restoration Homes in case number CIV 525919. Since trial of both cases would require trial of the same facts and rely on the same witnesses and evidence, consolidation is proper.

 

Defendant contends that filing a new case and moving for consolidation is a mere sham to avoid this Court’s previous ruling denying Plaintiffs’ motion for leave to amend.  The earlier ruling does not necessitate denying consolidation, for several reasons.

 

First, the motion to file a Second Amended Complaint sought to add a new party, drop an existing party, drop the claims for conversion and violation of Civil Code section 2924.17, and add claims for violation of Civil Code section 1788.17, and add claims against Defendant SN Servicing. None of those changes is set forth in the new case, which alleges only two causes of action, both against Defendant Restoration Homes. The new case is different from the previously proposed amendment. Therefore, the present motion is not an “end run” around this Court’s earlier ruling.

 

Second, the Court denied leave to amend in part because of the pending trial date and Plaintiffs’ delay. Subsequent to the Court’s denying that motion, the parties stipulated to continue trial to October 2017, and to extend all trial-related deadlines. The prejudice on December 7, 2016, no longer exists. Defendant has sufficient time to demur, answer, and move for summary judgment.

 

Third, Defendant acknowledges that not only are the cases factually identical, but also that the new action is duplicative of the present action. If that is true, then Defendant presumably needs little, if any, additional discovery on the new claims.  Defendant contends that a demurrer will dispose of the new action. But that demurrer may occur regardless of consolidation. On its face, however, the new action alleges different legal theories, which might survive a demurrer for “another action pending.”

 

Defendant argues that the new action constitutes an impermissible splitting of causes of action. Consolidation cures that defect. In the alternative to consolidating the actions, Defendant may, at its option, stipulate that Plaintiffs file a Second Amended Complaint that incorporates, verbatim, the complaint in 17-CIV-00114, and then dismiss the newer action.  Otherwise:

 

The actions are ordered consolidated and shall proceed under Case Number CIV 525919 as the lead case.

 

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 Richard H. DuBois, Department 16.

 



9:00

Line: 9

CIV535435     PATRICK R. GILSON VS. AMIN M. ELJAAFREH, ET AL.

 

 

PATRICK R. GILSON                     FRANK M. PITRE

AMIN M. ELJAAFREH                     RICHARD E. MCGREEVY

 

 

MOTION TO COMPEL

TENTATIVE RULING:

 

Plaintiff’s Motion to Compel Deposition of Person(s) Most Qualified Regarding Dashcam and Deposition of Person(s) Most Qualified Regarding Vehicle Registration and Ownership and for Sanctions is GRANTED in part.

The request to compel attendance at deposition is MOOT as the parties have agreed to deposition dates.

The request for monetary sanctions is GRANTED.  The objection that “the deposition is set for a date that was unilaterally scheduled by Plt’s counsel” is not a valid objection to a deposition notice. There is no obligation to confer prior to setting a date for a deposition. In this instance, Plaintiff’s counsel was willing to re-set the depositions for another date, had Defendants contacted counsel. Defendants’ silence and refusal to cooperate on selecting alternative deposition dates until this motion was filed is the reason for the sanctions. Defendants’ use of a settlement offer as an exhibit to the opposition, in blatant disregard of the privilege afforded to such communications, is improper and unacceptable. 

Defendants are ordered to pay $2,500 in sanctions to Plaintiff within five (5) days of Notice of Entry of this Order.  Plaintiff’s request for issue sanctions 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.

 



9:00

Line: 10

CIV537891     JOSUE BONET VS. KHACHO ENTERPRISES INC, ET AL.

 

 

 

KHACHO ENTERPRISES, INC.              MATTHEW J. WEBER

JOSUE BONET                           SCOTT MAURER

 

 

MOTION FOR SUMMARY ADJUDICATION OF ISSUES

TENTATIVE RULING:

 

Defendants KHACHO ENTERPRISES, INC. dba THREE AMIGOS AUTO CENTER and 3RD GENERATION, INC. dba CALIFORNIA AUTO FINANCE’s Motion for Summary Adjudication of Plaintiff’s Fourth Cause of Action is DENIED. 

 

Defendants are correct in stating that Plaintiff failed to file a response to their Separate Statement.  However, this motion does not involve a factual dispute.  Rather, this motion must be determined as a matter of law with respect to which statute of limitations applies.

 

Defendants, relying primarily on Stone v. James (1956) 142 Cal.App.2d 738 which was decided six years before the Automobile Sales Finance Act (“ASFA”) was enacted, argue that the rescission remedy set forth in the ASFA at Civil Code Sec. 2983.1 should be considered a “penalty or forfeiture” such that the one year statute of limitations set forth in Code Civ. Proc. Sec. 340(a) applies. 

 

The Court is not convinced by this argument.  The Court in Nelson v. Pearson Ford Co. (2010) 186 Cal.App.4th 983 (disapproved on other grounds), while ultimately determining the statute of limitations issue in that case to be moot, nonetheless provided an informative discussion regarding the enactment of the ASFA and the type of remedies provided therein.  Specifically, in discussing the addition of Civil Code Sec. 2983.1 to the ASFA, the Court stated:

 

[I]t appears the Legislature created the rescission option in section 2983.1 to codify the legal principles discussed by the General Motors and Katsaros

 courts. Notably, these legal principles track the Civil Code, which requires a party seeking rescission to “[r]estore to the other party everything of value which he has received from him under the contract or offer to restore the same upon condition that the other party do likewise, unless the latter is unable or positively refuses to do so.” (Sec. 1691, subd. (b).) 

 

Id. at 1011, emphasis added.

 

Moreover, in interpreting a statute, the Court’s fundamental task is “to determine the Legislature’s intent so as to effectuate the law’s purpose.”  Anderson Union High School District v. Shasta Secondary Home School (2016) 4 Cal.App.5th 262, 283.  “We look first to the plain meaning of the statutory language, giving the words their usual and ordinary meaning.  If there is no ambiguity in the statutory language, its plain meaning controls; we presume the Legislature meant what it said.”  Id.

 

Here, Civil Code § 2983.1(d) specifically allows a buyer to “elect to rescind the contract and return the motor vehicle” where a conditional sale contract is not enforceable under Sections 2983 or 2983.1.  The Legislature specifically chose to call this a “rescission” remedy, rather than using language to indicate it was a “penalty or forfeiture”.  In light of the discussion by the Nelson court set forth above and the plain reading of the statute, the Court views Plaintiff’s Fourth cause of action as one seeking rescission rather than a penalty or forfeiture.  Accordingly, Defendants’ motion on statute of limitations grounds is denied.

 

Defendants’ Request for Judicial Notice of Plaintiff’s Complaint is GRANTED insofar as it was filed with this Court, but not as to the truth of any matters asserted therein.

 

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

Line: 11

CLJ539004     COLLECTO, INC. VS. DONNA RAMSAY, ET AL.

 

 

COLLECTO, INC.                        MICHAEL K. SIPES

DONNA RAMSAY

 

 

MOTION TO SET ASIDE DEFAULT JUDGMENT

TENTATIVE RULING:

 

The Motion to Vacate the Judgment and Dismiss the Action as to defendant Kevin Ramsay is granted.

 

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, Plaintiff 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 Richard H. DuBois, Department 16.

 

 


9:01

Line: 12

17-UDL-00075   Equity Residential Management LLC vs. Zachary Freyer

 

 

Equity Residential Management LLC      JEAN M. TRENBEATH

Zachary Freyer

 

 

Demurrer

TENTATIVE RULING:

 

Defendant ZACHARY FREYER’s Demurrer to Complaint is OVERRULED.

 

A demurrer is used to challenge defects that appear on the face of the pleading, or from matters outside the pleading that are judicially noticeable.  Blank v. Kirwan (1985) 39 C3d 311, 318; Weil & Brown, Cal. Practice Guide:  Civil Procedure Before Trial (The Rutter Group 2016), Ch. 7, § 7:7.8.  When considering a demurrer, all facts pleaded in the complaint are assumed to be true.  Weil & Brown, supra, Ch. 7, § 7:5.  On demurrer, the court can also consider facts appearing in exhibits attached to the complaint.  Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726.

 

Here, Plaintiff has sufficiently pled facts supporting its action for unlawful detainer.  The Complaint identifies the subject property, the amount of monthly rent, the type of notice served, and the amount owed.  The 3-day Notice is attached as an exhibit to the Complaint.  Defendant does not provide any legal basis to support his demurrer.

 

Defendant shall file an answer to the complaint by February 24, 2017.

 

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.

 

 

In the Superior Court of the State of California

In and for the County of San Mateo

 

Special Set Calendar

Judge: Honorable JONATHAN E.KARESH

Department 20

 

400 County Center, Redwood City

Courtroom 8C

 

Friday, February 17, 2017

 

If you plan to appear on any case on this calendar,

 you must call (650) 261-5120 before 4:00 p.m. and you must give notice also before 4:00 p.m. to all parties of your intent to appear pursuant to California Rules of Court 3.1308(a)(1).

 

Case                   Title / Nature of Case

11:00

Line: 1

CIV532816     LAWRENCE & KIMBERLY SHAPIRO VS. ERIC LUNDAHL

 

 

BARBARA BULICHI                        MICHAEL V. NUDELMAN

BAHA PIRATES

 

 

MOTION TO TAX COSTS AND FOR SANCTIONS FOR BAD FAITH AND FRIVOLOUS TACTICS

Tentative Ruling:

 

Plaintiff’s Motion to Tax Costs is GRANTED.

 

The following categories in the Defendant’s Memorandum of Costs (by item number) are revised as follows:

(1)         Reduced by $435. Defendant may seek a refund of the overpayment of his first appearance fee paid twice from the Clerk of Court;

(8) Expert witness fees are reduced to $5,075, as Code of Civil Procedure sec. 998(c)(1) only grants the Court discretion to award the Defendant post-offer expert witness fees;

(11) Photocopies and exhibits of $6,602 is stricken, as it is unclear whether this is disallowed copies (CCP sec. 1033.5(a)(13)) not used at trial or allowed exhibits (CCP sec. 1033.5(b)(3));

(13) Add $73,485.60 for the trial preparation services of Douglas Stimpson and Accident Investigation & Reconstruction, under CCP sec. 1033.5(c)(2) & (4), because the Court finds these expenses were reasonably necessary to the conduct of the litigation, rather than merely convenient or beneficial to its preparation. Ladas v. California State Auto. Ass’n., 19 Cal. App. 4th 761, 774 (1993).

 

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.

 

 


1:30

Line: 2

CIV531054     CITY OF PALO ALTO VS. GARY P. CECCATO, ET AL.

 

 

CITY OF EASTPALO ALTO                  MARC G. HYNES

LYNDA MONTGOMERY                       PETER H. BONIS

 

 

MOTION FOR SANCTIONS AGAINST CROSS-COMPLAINANTS AND CROSS-COMPLAINANTS ATTORNEY OF RECORD

Tentative Ruling:

 

On the Court’s own motion the Motion for Sanctions is continued to March 3, 2017 at 11:00 a.m. in Department 20.

 

 

 

 

 

 


POSTED:  3:00 PM

 

© 2017 Superior Court of San Mateo County