April 18, 2014
Law & Motions Tentative Rulings
  • Law and Motion Department Tentative Ruling Line:  (650) 363-1882
  • Other Judges' tentatives: please reference the appropriate Case Number and Case Caption below and contact the appropriate department.

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In the Superior Court of the State of California

In and for the County of San Mateo

 

Law and Motion Calendar

Judge: Honorable LISA A. NOVAK

Department 13

 

400 County Center, Redwood City

Courtroom 2C

 

APRIL 18, 2014

 

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

1.      YOU MUST CALL (650) 363-1882 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.  

 

    Case                  Title / Nature of Case

9:00

1

CIV 516505    THE RIACE FINANCIAL GROUP, INC.

              VS.

              NEW LEAF COMMUNITY MARKETS, INC.

 

 

THE RIACE FINANCIAL GROUP, INC.       PAUL E. RICE

NEW LEAF COMMUNITY MARKETS, INC.      EDWARD W. NEWMAN

 

 

MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION OF ISSUES BY BEVERLY M. ASHCRAFT, W.P. CUNHA GROCERY, INC. AGAINST THE RIACE FINANCIAL GROUP, INC.

 

 

·         Ashcraft's objections to evidence 1, 3, 5, 7, 8, 9, are SUSTAINED.

 

·         The balance of Ashcraft’s objections are overruled. 

 

 

·         Ashcraft’s motion for summary judgment is DENIED. [Opposing party’s dispute material facts 8 & 11]  Triable issues of material fact exist as it relates to the 1st and 2nd causes of action alleged against Defendant Ashcraft.

 

·         Ashcraft's motion for summary adjudication as to issue #1 and 2 are denied.  Moving party has not met her burden of showing that plaintiff has no admissible evidence regarding Ashcraft's breach of the contract by encouraging employees or customers holding house accounts to leave plaintiff.

 

·         Ashcraft's motion for summary adjudication as to issue #3 and 4 are denied.  Ashcraft has not met her burden of showing that plaintiffs have no evidence that customers stopped doing business with the Market because of her actions.

 

·         Ashcraft's motion for summary adjudication as to issue #5 is denied.  The 2nd cause of action for breach of the covenant not to compete is an alternative pleading of a breach of contract claim with additional allegations regarding New Leaf's involvement. 

 

·         Ashcraft's motion for summary adjudication as to issue 6 and 7 is denied.  The statute of limitation for breach of a written contract is four years . CCP 337.  The statute of limitations begins to run when a cause of action is complete with all of its elements.  Norgart v. Upjohn Co. (1999) 21 Cal.4th 383.  Normally the [SOL] runs from the occurrence of the last element essential to the cause of action.  Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185.  The FAC alleges a continuously occurring breach from 2008-2011.  Ashcraft has presented no evidence showing that all necessary elements of plaintiffs' causes of action had occurred at the time the June 24, 2008 letter presented as evidence (UMF #7) was sent.  The letter does not refer to damages or state that Ashcraft had in fact solicited Plaintiff’s customers, only that there was an understanding she was attempting to do so.

 

MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION OF ISSUES BY NEW LEAF COMMUNITY MARKETS, INC. AGAINST THE RIACE FINANCIAL GROUP, INC.

 

·         Defendant New Leaf’s objections to the declarations of Antone

and McClendon are OVERRULED. 

 

 

·       The court notes that its review of this motion was made more difficult by the moving party’s failure, in its separate statement, to identify each cause of action or affirmative defense and each supporting material fact with respect to that cause of action or affirmative defense in compliance with CRC 3.1350(d) and both parties’ failure to tab any of their exhibits.  The Court has the discretion to deny the motion simply on procedural grounds.  Counsel is admonished to comply with all rules of procedure and rules of court.  The Court has exercised is discretion and elected to consider the motion on its merits.

 

·      New Leaf's motion for summary adjudication as to the 2nd cause of action for breach the covenant not to compete is granted.  New Leaf was not a party to the contract for sale.  (Undisputed Material Fact #13)

 

·      New Leaf's motion for summary adjudication as to the 3rd cause of action for intentional interference with contractual relations is granted.  New Leaf has met its burden (Undisputed Material Facts #2-4, 6-8, 10-12, and 14-16).  Plaintiff failed to raise a triable issue of material fact as to whether New Leaf engaged in intentional acts designed to induce a breach or disruption of the contractual relationship.  

 

·      [The court has not considered the arguments that both causes of action are barred due to a failure to show damages or by the statute of limitations due to New Leaf's failure to present undisputed material facts regarding these issues in its separate statement in support of the motion.  Frazee v Seely (2000) 295 Cal.App. 4th 627, 636]

 

·      Moving attorneys are directed to prepare written orders 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 orders are to be submitted directly to Judge Lisa A. Novak, Department 13.

 

 _____________________________________________________________________
9:00

2

CIV 519736    CARR & FERRELL, LLP VS. BLAZE MOBILE, INC., ET AL.

 

 

CARR & FERRELL, LLP                   MARTIN D. GOODMAN

BLAZA MOBILE, INC.

 

 

MOTION FOR ASSIGNMENT ORDER BY CARR & FERRELL, LLP

 

 

·         Matter continued to June 02, 2014. 

 

 

_____________________________________________________________________


9:00

3

CIV 521280    CHERYL G. LEVINE, ET AL.

              VS.

              GEMMA G. GUILLERMO, M.D., ET AL.

 

 

CHERYL G. LEVINE                      MARJORIE G. MANDANIS

GEMMA G. GUILLERMO, M.D.              SCOTT R. KANTER

 

 

MOTION TO AMEND THIRD AMENDED COMPLAINT BY CHERYL G. LEVINE

 

 

·         The motion to amend the Third Amended Complaint [TAC] as it relates to Defendant Dignity Health is DENIED.  The court previously granted this defendant’s demurrer without leave to amend, followed by a judgment in its favor.  To include it in the TAC as a defendant is improper.  The Court will on its own motion strike Dignity Health as a Defendant in this action.

 

·         The motion to amend the Third Amended Complaint to add a claim for punitive damages as against Defendants Guillermo, Xuereb and Ng is DENIED. Plaintiff’s burden is to must establish a "substantial probability" that she will prevail on the claim for punitive damages. (Code of Civ. Proc. § 425.13(a).)  The burden is to show (1) a legally sufficient claim, (2) that is "substantiated" by competent, admissible evidence. (College Hosp., Inc. v. Sup. Ct. (1994) 8 Cal.4th 704, 719-20 [requiring competent admissible evidence within the declarant’s personal knowledge].) The motion is supported solely by the Declaration of Cheryl Levine.

 

·         In order to obtain leave to amend to add a punitive damages claim against a healthcare provider, Plaintiff must establish a "substantial probability" that she will prevail on that claim. (Code of Civ. Proc. § 425.13(a).) "Substantial probability" requires Plaintiff to show (1) a legally sufficient claim, (2) that is "substantiated" by competent, admissible evidence. (College Hosp., Inc. v. Sup. Ct. (1994) 8 Cal.4th 704, 719) Therefore, the burden is on Plaintiff to produce evidence that, if accepted by the trier of fact, would establish a prima facie showing of "malice, oppression or fraud" under a "clear and convincing" standard of proof required under Civil Code Section 3294(a). (Looney. v. Sup. Ct. (1993) 16 Cal.App.4th 521, 538.

 

·         “Substantiation" of a proposed punitive damages claim occurs where the factual recitals are made under penalty of perjury and set forth competent admissible evidence within the declarant’s personal knowledge. (College Hosp., Inc. v. Sup. Ct., supra, 8 Cal.4th at 719- 720.)

 

·         This motion is supported by only Plaintiff’s declaration (Declaration of Levine), THE contents of which fail to meet the necessary burden.  Plaintiff recounts her conversations with various doctors who were directly or tangentially involved in treating Vieira. The declaration amounts to not much more than the following narrative:

 

o   Vieira was treated by Dr. Guillermo during his 14-day hold.

 

o   Dr. Xuereb signed Vieira’s discharge papers because Dr. Guillermo was unavailable. Upon discharge, Dr. Xuereb gave Vieira 10 Cymbalta tablets. Dr. Xuereb gave him only 10 tablets because of overdose concerns.

 

o   The discharge papers referred Vieira to Dr. Nakamura. Dr. Xuereb did not know who Dr. Nakamura was, but said he would look into it. He never got back to Plaintiff to explain who Dr. Nakamura was.

 

o   Plaintiff spoke with Vieira’s primary care physician, Dr. Ng, who gave Plaintiff a list of the medications that Vieira was on. None of them was an antidepressant. Dr. Ng stated that Vieira had been trying to seek treatment by a psychiatrist, but none would take his insurance.

 

o   Plaintiff later learned that Dr. Ng had prescribed Cymbalta for Vieira, even though Dr. Ng. is not a psychiatrist.

 

·         Even if Plaintiff were to prove all of these facts, they do not add up to “malice, fraud, or oppression” that is required in order to impose punitive damages.  Therefore, the contents of the declaration fail to meet the necessary burden.

 

·         If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, Defendant Guillermo 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.

 _____________________________________________________________________


9:00

4

CIV 522176    APPLIED UNDERWRITERS, INC. VS. ARTISAN BUILDERS, ET AL.

 

 

APPLIED UNDERWRITERS, INC.            MICHAEL K. PERKINS

ARTISAN BUILDERS                      BETTY J. LEVINE

 

 

DEMURRER TO 1st Amended COMPLAINT of APPLIED UNDERWRITERS, INC. BY UNINSURED EMPLOYERS BENEFITS TRUST FUND

 

·         The parties are admonished to identify at the beginning of their pleadings any organization by its full name which is intends to refer using only an acronym [“WCAB”]

 

·         Defendant UNINSURED EMPLOYERS BENEFIT TRUST FUND’s Demurrer to the First Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND as to the Third Cause of Action for Declaratory Relief, on the ground that it is not a necessary party to this action.  The Fund is not a party to the contract between Plaintiffs, ARTISAN, and POWELL, nor is it a party to the underlying worker’s compensation case filed by SILVA.  That the Fund may ultimately pay an unpaid award of benefits against an illegally uninsured employer, is a hypothetical set of facts upon which no judicial determination may be based at this time.  BKHN, Inc. v. Dept. of Health Services (1992) 3 Cal.App.4th 301, 308; Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 100, 117. 

 

·         The Court clearly has jurisdiction over this instant matter.  There have been two prior rulings by this Court that no exclusive jurisdiction arises with in the Worker’s Compensation Appeals Board until and unless this Court determines the question of coverage.  The Worker’s Compensation judge has recognized this court’s jurisdiction over this dispute.  That argument should finally be put to rest. 

 

·         If the tentative ruling is uncontested, it shall become the order of the Court. The moving party 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 523865    JULIE ECKERT VS. COLLEEN PARKER

 

 

JULIE ECKERT                          JOSEPH F. CHARLES

COLLEEN PARKER                        TODD A. ANGSTADT

 

 

MOTION TO COMPEL FURTHER RESPONSE FROM DEFENDANT COLLEN PARKER BY JULIE ECKERT

 

·         Plaintiff’s objections to Portions of the declaration of Erin Chan-Adams is sustained as to paragraphs 3, 4, 5 and 24.  The objection to paragraph 22 is sustained in part as it relates to the purported knowledge of Defendant.

 

·         The motion to compel further response to plaintiff’s Request for Admission No. 7 is denied.  After the initiation of the meet and confer process, Defendant submitted a further response to RFA No. 7.   Plaintiff found this response lacking and engaged in further meet and confer, as well as propounding a special interrogatory concerning the efforts Defendant made at attempting to secure the information such that she might be able to either admit or deny RFA No. 7.  Plaintiff has not established that defendant failed to make a reasonable inquiry to obtain the facts necessary to admit the request.  To the contrary, Defendant responded to the special interrogatory addressing her efforts, and she responded that numerous phone calls were placed to the installer, with messages left, and that no return call was received.  The Court cannot find that these efforts were not reasonable. 

 

·          All requests for sanctions are denied. 

 

·         If the tentative ruling is uncontested, it shall become the order of the Court. The moving party 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

6

CIV 524566    JUANITA LAGATAO, ET AL VS.  MOHAMED SAYED MOUSTAFA

 

 

JUANITA LAGATAO                       STEPHEN L. MOSES

MOHAMED SAYED MOUSTAFA

 

 

MOTION RE: SETTING ASIDE DEFAULT AND DEFAULT JUDGMENT BY MOHAMED SAYED MOUSTAFA

 

 

·         Counsel for Plaintiff, Declarant Swayne, and Defendant are ordered to appear.  Defendant seeks relief from this court asserting that the court has no jurisdiction over him in that the substituted service of process is flawed; as such, Defendant moves this court to quash the service of summons and vacate the default judgment entered against him.  Defendant has submitted a declaration under penalty of perjury wherein he states that the residence at which the summons was served is not his home, and that he does not know a person named “Carmen Moustafa” whom it is alleged by Plaintiff was the occupant who directed that the summons be left on the doorstep.  The declaration of Plaintiff’s process server, Swayne, states that service was initially attempted at 2041 Pioneer Court, Suite 207 in San Mateo, which was indicated as a valid address for Defendant.  When the declarant attempted service at that address on October 3, 2013, he states the premises were vacant.  He attests he then phoned the Defendant and upon informing him of the efforts to serve papers, Defendant hung up.  The Court takes judicial notice of papers filed by Defendant in pro per subsequent to the date of October 3, 2013 which list his address as 2041 Pioneer Court, Suite 207, in San Mateo.  The Court requires further information from the parties so as to determine the veracity of statements set forth under penalty of perjury by each declarant.

 

_____________________________________________________________________


9:00

7

CIV 525586    CITY OF MILLBRAE VS. FLIGHTCAR, INC.

 

 

CITY OF MILLBRAE                      EMILY M. CHARLEY

FLIGHTCAR, INC.                       RICHARD L. SEABOLT

 

 

DEMURRER TO PETITION of CITY OF MILLBRAE BY FLIGHTCAR, INC.

 

 

·         This matter has been continued to May 13, 2014.

 

 

_____________________________________________________________________


9:00

8

CIV 526792    REED ALLISON VS. JONATHAN GERBER, ET AL.

 

 

REED ALLISON                          JEFF D. FEINBERG

JONATHAN GERBER

 

 

DEMURRER TO COMPLAINT of ALLISON BY BRITTA CARILLO

 

 

·         Moot.  First amended complaint filed April 11, 2014

 

 

_____________________________________________________________________


9:00

9

CLJ 514422    CAVALRY SPV I, LLC VS. MARIA T. GUTIERREZ, ET AL.

 

 

CAVALRY SPV I, LLC                    CASEY M. JENSEN

MARIA T. GUTIERREZ                    PRO/PER

 

 

MOTION TO DEEM FACTS AS ADMITTED BY CAVALRY SPV I, LLC

 

·         Plaintiff Cavalry SPV I, LLC’s Motion To Deem Facts As Admitted and Request for Attorney Fees is GRANTED pursuant to CCP § 2033.280.  All those matters set forth in Plaintiff’s Request for Admissions [Set 1] dated January 16, 2014 are hereby deemed admitted. Defendant is also ordered to pay sanctions to Defendant in the amount of $60.00, reimbursement for the filing fee associated with this motion, pursuant to CCP § 2033.280(c). Sanctions shall be paid within ten [10] days of service of the order.

 

·         If the tentative ruling is uncontested, it shall become the order of the Court. The moving party 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

10

CLJ 525773    MIDLAND FUNDING, LLC VS. DENISE BACCHI

 

 

MIDLAND FUNDING, LLC                  FLINT C. ZIDE

DENISE BACCHI                         FRED W. SCHWINN

 

 

MOTION FOR ORDER TO COMPEL RESPONSES TO DEMAND FOR COPY OF ITEMS BY DENISE BACCHI

 

 

·         Off calendar at request of moving party.

 

 

_____________________________________________________________________


9:00

11

CLJ 526373    JENNIFER MARQUEZ VS. CHECK N. GO

 

 

JENNIFER MARQUEZ                      TODD M. FRIEDMAN

CHECK N. GO

 

 

MOTION TO STAY AND COMPEL ARBITRATION OF PLAINTIFF JENNIFER MARQUEZ' CLAIMS BY CHECK N. GO

 

 

·          The Court herby GRANTS the Defendant’s Motion to Stay and Compel Arbitration of Plaintiff arbitration pursuant to CCP § 1281.2. 

 

·         Federal and California law supports contractual arbitration. 

A written agreement to submit a controversy to arbitration is valid and enforceable and non-revocable under California law.  CCP § 1281. Additionally, California has a strong public policy in favor of arbitration as a speedy and relatively inexpensive means of dispute resolution.  The written Agreement to Arbitration requires the parties to submit to arbitration for all claims arising between the parties. Thus, both claims alleging wrongful acts under the Telephone Consumer Protection Act and the Rosenthal Fair Debt Collection Practices Act are subject to the Agreement to Arbitrate.

 

·         If the tentative ruling is uncontested, it shall become the order of the Court. The moving party 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. 

 

_____________________________________________________________________

 

 

 

 

 


POSTED:  3:00 PM

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