October 24, 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

 

OCTOBER 24, 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 488367       JOHN F. DIETZ VS. RICHARD MORRISON

 

 

JOHN F. DIETZ                         PRO/PER

RICHARD MORRISON                      PRO/PER

 

 

MOTION TO DISMISS FOR FAILURE TO BRING TO TRIAL BY RICHARD MORRISON

 

 

·         Defendant Richard Morrison’s Motion to Dismiss for Failure to Prosecute is GRANTED pursuant to CCP § 583.360(a).  More than 5 years have passed since the complaint was filed on September 28, 2009 and plaintiff has not brought the matter to trial within the ensuing five years.  The requirements of this article are mandatory and are not subject to extension, excuse or exception except as provided by statute.  CCP § 583.360(b).  See General Motors Corp. v. Superior Court (1966) 65 Cal. 2d 88, 93.  Plaintiff has not cited to any statutory exception.

 

·         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 Elizabeth K. Lee, Department 17.

 

 

_____________________________________________________________________

 

9:00

2

CIV 510933       RI QUIANG HUANG, ET AL VS. U.S. BANCORP, ET AL.

 

 

RI QUIANG HUANG                       MICHAEL YESK

U.S. BANCORP                          ERIC D. HOUSER

 

 

DEMURRER TO THIRD Amended COMPLAINT of HUANG BY U.S. BANK NATIONAL ASSOCIATION

 

 

·         Demurrer to the entire complaint is sustained without leave to amend.  Each cause of action seeks to set aside the foreclosure sale of Plaintiff’s property.  The Complaint fails to comply with the requirement that a must allege a credible tender of the amount of the secured debt to maintain any cause of action for wrongful foreclosure.  An exception to the general tender rule is that tender is not required when the sale is void, rather than merely voidable.

 

·         The allegations in the complaint, if proven, do not support a finding that the sale or underlying transfer of Plaintiffs’ loan was void.  Plaintiffs rely entirely on Glaski v Bank of America, NA (2013) 218 Cal App.4th 1079, 1099.  The Court declines to follow Glaski, and instead follows Jenkins v JP Morgan Chase Bank (2013) 216 Cal.App.4th 497 and Gomes v Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 11. 55- 1156.  Glaski . . . has not been well received by federal courts.  ‘Every court in [the Northern] district that has evaluated Glaski has found it is unpersuasive and not binding authority . . .. Federal courts continue to reject the reasoning in Glaski.  We can find no state or federal cases to support the Glaski analysis and will follow the federal lead in rejecting this minority holding.’”  (Mendoza v. JPMorgan Chase Bank, N.A. (2014) 228 Cal.App.4th 1020, 1034 [citing eight federal cases].)

 

·         (The Court does not consider Defendant’s citation to Yvanova v. New Century Mortgage (2014) 226 Cal.App.4th 495 or Keshtgar v. US Bank (2014) 226 Cal.App.4th 1201, since the Supreme Court has granted review as to both cases.)

 

·         Demurrer to the 1st, 2nd, and 3rd causes of action (breach of deed of trust breach of implied contract, Civil RICO) are sustained without leave to amend for the same reasons above.

 

·         Demurrer to the 4th cause of action is overruled. The Complaint contains no fourth cause of action.

 

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

 

 

_____________________________________________________________________

 

9:00

3

CIV 516550       IAR SYSTEMS SOFTWARE, INC. VS. NADIM SHEHAYED, ET AL.

 

 

IAR SYSTEMS SOFTWARE, INC.            ANTONIO VALLA

NADIM SHEHAYED                        JEFFREY M. CURTISS

 

 

MOTION TO QUASH SUBPOENA BY NADIM SHEHAYED, NADINE ABOU-HAIDAR AND EMPROG, INC.

 

 

·         Defendants’ Motion to Quash Subpoena is granted in part.  The motion to quash is granted as to requests 1, 2, 5, 6, 7 and 8.  The motion to quash is granted as to requests 3 and 4 in part. Emprog shall produce documents reflecting amounts paid to Nadim Shehayed. 

 

·         Request # 1 seeks: "All corporate records of Emprog, Inc, including but not limited to the Articles of Incorporation, Annual Statements, Bylaws, Board Minutes, Shareholder Minutes, and Shareholder Agreements from September 10, 2012 to present."

 

·         The motion is granted as to this request as it does not appear to be relevant to the issues in this case.  Emprog is neither a party to nor mentioned in the complaint; there are no allegations that it is the alter ego of Shehayed.

 

·         The 3rd C/A for breach of contract against Shehayed alleges IAR and Shehayed entered into a written employment contract, and as an implicit/express condition of the contract, Shehayed was to act in IAR's interests and manage its operations.  This C/A alleges Shehayed breached the contract by, among other things, paying himself excessive salaries/bonuses, paying a salary/bonuses to and making 401(k) contributions for his wife even though she was not an employee, and paying himself for business expenses he'd never incurred.  There are no allegations that the employment contract contained provisions prohibiting Shehayed from starting a competing company or soliciting IAR's customers/employees.  Nor are there any allegations in the complaint that Shehayed did so.

 

·         Request #2 seeks: All tax records of Emprog, Inc., including but not limited to Form SS4, Form 1120-C or 1120-S, Form 1099 -INT, Form 1099 -DIV, Sales Tax Returns, and Employment Tax Returns from September 10, 2012 to present.

 

·         The motion is granted as to this request as the documents do not appear to be relevant.  While the employment tax returns could be relevant to the mitigation of Shehayed's lost wage claim in his cross-section complaint, the request for all employment tax returns is overbroad and IAR could obtain the information through less intrusive means such as sending an interrogatory to Shehayed or requesting he produce documents showing payment of wages.

 

·         Request #3 seeks: “All business records of Emprog, Inc., including but not limited to employee payroll records, Loan Agreements, Stock Purchase Agreements, and Promissory Notes, convertible or otherwise from September 10, 2012 to present.”

 

·         Defendants/Emprog argue the request is inappropriate because it is overbroad, not directly relevant, and seeks private 3rd-party information, including financial information and trade secret information.  IAR argues it should be permitted to seek discovery related to Shehayed's claim for lost wages and that Shehayed testified untruthfully that he was working as a consultant, while not admitting he was the CEO, CFO and principal shareholder of Emprog.

 

·         During his 7/20/13 deposition, Shehayed testified he had a part-time contracting job paying $80 per hour for a "business service management position" and that he did not want to name his employer.  IAR has provided a printout entitled "business entity detail" from the California Secretary of State website for Emprog, showing it was filed on 4/3/13.  IAR has also presented a "Statement of Information" filed with the California Secretary of State on 1/4/14 for Emprog, showing that Shehayed is the CEO, CFO, director and president.  IAR argues Shehayed was untruthful during his deposition, but has not presented any information that (1) prior to 1/4/14, Shehayed held any of these positions with Emprog or (2) if Shehayed was involved in the formation of Emprog, he did not perform work for another company while doing so.

 

·         This request is overbroad and much of the requested information does not appear to be relevant to the issues in this case.  The only relevant records are those regarding payments to Shehayed which would be relevant to mitigation of his claimed wage loss and to his credibility.  This request is hence limited to records pertaining to wages or other amounts paid to Shehayed. 

 

·         Request #4 seeks: “Any Employment Agreements or Consulting Agreements by and between Emprog, Inc. and Nadim Shehayed, Nadine Abou- Haidar, or Nader Shehayed from September 10, 2012 to present."  [Apparently, Nader Shehayed, listed as Emprog's secretary, is Nadim Shehayed's brother.]

 

·         Defendants/Emprog argue the request is inappropriate because it is overbroad, not directly relevant, and seeks private 3rd-party information, including financial information and trade secret information.

 

·         Employment or consulting agreements with Nadim Shehayed would be relevant to his claim for lost wages.  Defendant/Emprog argue, without offering any facts or explanation, that these agreements contain trade secret information.  Any concerns about possible trade secret information could be alleviated by ordering that the agreements be produced "for attorney's eyes only".

 

·         It is not clear whether Nadine Abou-Haidar is making a claim for lost wages.  The 6th C/A in the cross-complainant alleges Skarin caused Abou-Haidar emotional distress by making inappropriate sexual advances and naming her as a defendant in the complaint.  Nader Shehayed is not a party to nor referenced in the complaint.  In opposing this motion to quash, plaintiff has not discussed how the employment records of either Abou-Haidar or Nader Shehayed would be relevant.

 

·         Request #5 seeks: "All records relating to the registration of URL accounts for Emprog, Inc., registration of email accounts for Emprog, Inc., and social media accounts for Emprog, Inc from September 10, 2012 to present."

 

·         Defendants/Emprog argue this request is inappropriate because it is overbroad and not directly relevant.  Plaintiff did not discuss this request in its opposition to the motion.  This information does not appear relevant to this case.  There is no claim in the complaint that Shehayed started Emprog while still employed by IAR.

 

·         Request #6 seeks: "All correspondence between Nadim Shehayed, Nader Shehayed, or any other Emprog, Inc. personnel and any current or former customers of IAR Systems Software, Inc., including, but not limited to, Segger Microcontroller Systems and Freescaie Semiconductors."

 

·         Defendants/Emprog argue the request is inappropriate because it is overbroad, not directly relevant, and seeks private 3rd-party information, including financial information and trade secret information.  Plaintiff argues that it has reason to believe that Shehayed has, in violation of his contract with IAR, exploited information/materials regarding IAR's customers/employees through his position at Emprog.

 

·         As discussed above, there are no allegations in the complaint that the employment contract contained provisions prohibiting Shehayed from starting a competing company or soliciting IAR's customers/employees.  Nor are there any allegations in the complaint that Shehayed did so.  Thus, this request is not relevant.

 

·         Request #7 seeks: "Any and all documents containing phone records that evidence communications between Nadim Shehayed, Nader Shehayed, or any other Emprog, Inc. personnel and any current or former customers of IAR Systems Software, Inc., including, but not limited to, Segger Microcontroller Systems and Freescale Semiconductors."

 

·         Defendants/Emprog argue the request is inappropriate because it is overbroad, not directly relevant, and seeks private 3rd-party information, including financial information and trade secret information.

 

·         As discussed above, there are no allegations in the complaint that the employment contract contained provisions prohibiting Shehayed from starting a competing company or soliciting IAR's customers/employees.  Nor are there any allegations in the complaint that Shehayed did so.  Thus, this request is not relevant.

 

·         Request #8 seeks: "Any and all documents reflecting or relating to any communications, whether written or oral, between Nadim Shehayed, Nader Shehayed, or any other Emprog, Inc personnel and any current or former employees of IAR Systems Software, Inc."

 

·         Defendants/Emprog argue the request is inappropriate because it is overbroad, not directly relevant, and seeks private 3rd-party information, including financial information and trade secret information.

 

·         As discussed above, there are no allegations in the complaint that the employment contract contained provisions prohibiting Shehayed from starting a competing company or soliciting IAR's customers/employees.  Nor are there any allegations in the complaint that Shehayed did so.  Thus, this request is not relevant.

 

·         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 Elizabeth K. Lee, Department 17.

 

 

MOTION FOR LEAVE TO CONDUCT DISCOVERY OF DEFENDANT NADIM SHEHAYED'S FINANCIAL CONDITION BY IAR SYSTEMS SOFTWARE, INC.

 

·         Plaintiff’s attorneys are instructed to familiarize themselves with CRC 3.1110(f) and comply with it in future filings.

 

·         The court has reviewed defendants' objections to plaintiff's evidence.  The court notes that defendants failed to set forth the language verbatim to which objection was being made and, in many instances, the legal ground for objection.  (See Weil & Brown (The Rutter Group) California Practice Guide: Civil Procedure Before Trial §9:102.6).  The court notes that many of the "objections" consisted of arguments that the proferred evidence did not support plaintiff's argument.  These arguments should have been contained in defendants' memorandum of Points and Authorities in opposition to the motion. 

 

·         The court sustains defendants' objections to the Expenditure Authorization Policy and accompanying e-mails (Exhibit B to Michael Purcell's declaration).  Although the Policy and accompanying emails were submitted as Exhibits 20 and 21 to the Nadim Shehayed deposition (August 10, 2013), excerpts from that transcript establishing the foundation for those documents were not provided to the court (pages 346, and 349).  The court also sustains defendants’ objections to page 26 of the Kwok Yau deposition, page 124 of Stephan Strom's deposition, and page 9 of the Burgard deposition. The remaining objections are overruled. 

 

·         Defendants’ objections to the evidence submitted with the reply are overruled.  While limiting the reply to five pages, the minute order did not prohibit the introduction of further evidence to support statements made in the reply.  Further plaintiff referred to this evidence at the hearing on October 2, 2014 to which defendants objected on the grounds that the evidence had not been submitted to the court.

 

·         Plaintiff argues it is likely to prevail because Shehayed has been charged with embezzlement.  The court has given no weight to this argument as Shehayed’s criminal case is pending and there has not been a verdict or final determination as to the charges.

 

·         In this action Plaintiff has raised claims of conversion, fraud and breach of fiduciary duty.

 

·         Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion are the plaintiff's ownership or right to possession of the property at the time of the conversion; the defendant's conversion by a wrongful act or disposition of property rights; and damages. It is not necessary that there be a manual taking of the property; it is only necessary to show an assumption of control or ownership over the property, or that the alleged converter has applied the property to his own use.  Oakdale Village Group v. Fong (1996) 43 Cal. App. 4th 539, 543-44.

 

·         “The elements of fraud are: (1) a misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (or scienter); (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage.” Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal. 4th 979, 990. 

 

·         “To establish a cause of action for breach of fiduciary duty, a plaintiff must demonstrate the existence of a fiduciary relationship, breach of that duty and damages.”  Charnay v. Cobert (2006) 145 Cal. App. 4th 170,182. 

 

·         In order to prevail on its claim for punitive damages, IAR USA must also prevail on the underlying claims.  Although IAR’s motion did not address the underlying elements of these C/A, the court finds at IAR’s attorney did sufficiently lay out the evidence showing that IAR USA was very likely to prevail on the underlying causes of action at the hearing on October 2, 2014.  This is supported by the evidence that was submitted to the court by Plaintiff in his moving papers.

 

·         In support of the motion, Plaintiff has presented:

 

  1. Excerpts from Shehayed's deposition in which he stated (1) his wife's salary was embedded in his salary so he didn't list her as an employee and/or he overlooked listing her, (2) his position was that if he authorized a business expense (and IAR Sweden didn’t object to it), it was legitimate, (3) he stated that clothing and sunscreen purchased at Costco were travel related expenses; (4) that the $200-$400 Costco Cash cards he purchased with IAR funds were "employee perks", some of which went to him; (5) he believed he had authority to use IAR funds to pay for his family to travel as a business expense (Disney World and a 10 day European trip); (6) he paid some (most) balances on his Chase credit card with IAR checks; (7) he deleted the IAR check register from his IAR laptop.  I am somewhat on the fence as to whether these activities amount to fraud or rise to the level of malice required for punitive damages or merely show bad judgment;

 

  1. Excerpts from the depositions of the IAR accountants stating that Shehayed directed them to reclassify expenses;

 

  1. Strom's testimony that the accountants had told him Shehayed had them change expense numbers to match the budget.  (This is hearsay.)  Strom also testified that it was Shehayed’s responsibility to review the people listed on the 401(k) plan.  Strom testified Shehayed was instructed in 2009 to send in an expense report for approval with receipts and supporting documents, but they weren’t expecting expense reports as Shehayed almost never traveled and they were not expecting entertainment costs as he had no contacts with customers.  Shehayed was also instructed to send in expense reports in 2010 and was given the expenditure, travel and entertainment policies;

 

  1. Burgard’s testifimony that (1) after she took over cutting the IAR checks, Shehayed told her something corrupted the check writing database on the company server but a copy was on his laptop [which was later deleted], (2) not to tell Skarin/Strom that IAR USA had a profit-sharing plan, (3) after she got the password to log on to the Paychex account from the IAR accountant, she found out about Shehayed’s wife being on the payroll and;

 

  1. Copies of the credit card statements from JP Morgan Chase Bank submitted with the reply. These statements show repeated and numerous charges at  dozens of restaurants and stores including Bed Bath & Beyond, Chevron, Safeway, Guitar Center (in an aggregate amount of approximately $18,000), B Street Music, Home Depot, Lady Footlocker, Frys, K&C Drycleaners, Target, Macys, Ikea, Safeway, Lucky’s, hotels, foreign exchange transactions and other charges. These charges were incurred during a substantial period of time (2007 through 2012), and many were incurred after Shehayed was instructed again (2010) as to IAR USA”s expenditure, travel, and entertainment policy.  It appears very likely that many of these charges were personal expenditures which Shehayed was expected to submit for approval prior to the expenditure and did not.  Further, during his deposition, Shehayed, who owed a fiduciary duty to IAR USA, stated that some monthly balances were paid with an IAR check and admitted that it “could be most”. (p. 264)

 

·         In support of his opposition, Shehayed argues that he was given no policy/directions on how to run IAR USA and therefore operated at his own discretion.  As he had the discretion to set policy, anything that he authorized was legitimate.  Shehayed argues that IAR USA, a company which he managed, or IAR Sweden could have checked the records (whose preparation he controlled).  Shehayed argues that accountants and auditors checked the accounts and found nothing wrong.  However, IAR USA presented evidence that the accounting firm prepared the records and accounts as directed by Shehayed.  Shehayed’s argument is that since IAR Sweden left him to operate on his own discretion and didn’t catch him or object, it cannot now complaint after the fact.  Shehayed is apparently arguing that since IAR Sweden didn’t tell him he was doing anything wrong, he didn’t have the malice or intent necessary to justify punitive damages.  Against the backdrop of Plaintiff’s evidence, these arguments are unavailing.

 

·         IAR USA’s motion for leave to conduct financial discovery is granted.  IAR USA has presented sufficient evidence to show that it is "very likely" to prevail on the underlying causes of action or its claim for punitive damages.

 

·         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 Elizabeth K. Lee, Department 17.

 

 

_____________________________________________________________________

 

9:00

4

CIV 518267       KARINA LOPEZ VS. CAROL FORD

 

 

KARINA LOPEZ                          PRO/PER

CAROL FORD                            MORGAN WEST HANSEN

 

 

MOTION TO TAX COSTS BY KARINA LOPEZ

 

 

·         The motion to tax is granted.  CCP §§1033.5(a)(8) and 1033.5(b)(1) indicate that only expert witness fees ordered by the court or expressly authorized by law are recoverable as costs.  Neither the costs memorandum nor plaintiff’s opposition indicates any basis for recovery of the expert fees at issue. 

 

·         In ruling on a motion to tax costs, the court must first determine whether CCP §1033.5 expressly allows the particular item and whether it appears proper on its face.  If so, the burden shifts to the objecting party to show the costs to be unnecessary or unreasonable.  Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.  If, however, the costs do not appear to be proper on their face, the burden of proof is on the party claiming them.  Ladas v. California State Auto Ass’n (1993) 19 Cal.App.4th 761, 774-776. 

·         With respect to witness fees, CCP §1033.5 has several provisions.  Ordinary witness fees pursuant to Govt. Code §68093 are recoverable as costs under §1033.5(a)(7).  §1033.5(a)(8) further provides that fees of expert witnesses ordered by the court are allowable as costs.  However, §1033.5(b)(1) states that, except when expressly authorized by law, the fees of experts not ordered by the court are not allowable as costs. 

·         In this case, the witnesses whose fees are at issue did not testify as ordinary witnesses.  Defendant identifies them as the biomechanical expert and the independent medical examiner.  Because expert fees are only allowable as costs where ordered by the court and nothing in the costs memorandum indicates these fees were ordered, they are not proper on their face and defendant bears the burden to establish that they are allowable.  She has not done so.  The opposition and declaration of defense counsel are silent as to the basis for an award of the fees. 

·         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 Elizabeth K. Lee, Department 17.

 

 

_____________________________________________________________________

 

9:00

5

CIV 524315       DILIP GUNAWARDENA VS. JOHN ANTRACOLI

 

 

DILIP GUNAWARDENA                     PRO/PER

JOHN ANTRACOLI                        TIMOTHY SCHWEIGERDT

 

 

MOTION FOR LEAVE TO AUGMENT/AMEND DEFENDANT’S EXPERT WITNESS DISCLOSURE BY JOHN ANTRACOLI

 

 

·         Defendant John Antracoli’s Motion to Augment/Amend Defendant’s Expert Witness Disclosure is DENIED.  Defendant has not demonstrated either good cause or due diligence in augmenting its expert witness disclosure.  Defendant’s counsel was aware in March 2014 of Plaintiff’s claim related to swimming and waited until 2 weeks prior to the trial date to bring this motion.

 

·         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 Elizabeth K. Lee, Department 17.

 

 

_____________________________________________________________________

 

9:00

6

CIV 529863       MARK TECHNOLOGIES CORPORATION VS. INVESTEK PROPERTIES

                   COMPANY, ET AL.

 

 

MARK TECHNOLOGIES CORPORATION         GARY R. KERSHNER

INVESTEK PROPERTIES COMPANY           REG J. LORMON

 

 

DEMURRER TO COMPLAINT of MARK TECHNOLOGIES CORPORATION BY INVESTEK PROPERTIES COMPANY

 

 

·         Defendant’s Requests for Judicial Notice are granted pursuant to Cal. Evid. Code § 452(d).  However, the truth of the statements in these documents or their proper interpretation is not subject to judicial notice to the extent those matters are reasonably disputed by the parties.  See Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal.App.4th 97, 113. 

 

·         Defendants’ Demurrer to Plaintiff’s Complaint is SUSTAINED without leave to amend.  This action would more appropriately be heard by the San Francisco County Superior Court.  The parties engaged in a protracted arbitration and litigation in that Court and there is a final judgment in that Court on all the issues here.  The San Francisco Court is the proper Court to provide any clarification that Plaintiff seeks. 

 

·         Plaintiff’s causes of action are barred by the doctrines of res judicata and collateral estoppel.  See Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 792, 797.  Although Plaintiff attempts to frame the issues as separate from the issues initially alleged in the San Francisco complaint, they are not.  Plaintiff simply seeks clarification of the Judgment in the San Francisco action that decided the issues in Defendant’s complaint. 

 

·         Further, the Court declines to hear the causes of action for declaratory relief as the Court’s “determination is not necessary or proper at the time under all the circumstances.”  CCP § 1061; Leach v. Leach (1959) 172 Cal.App.2d 330, 333.  The San Francisco County Superior Court can more properly decide if this action has merit.

 

·         Plaintiff’s arguments regarding the procedural defects in Defendant’s Demurrer are unavailing.  Defendant later provided the table of contents and table of authorities missing from its Memorandum of Points and Authorities.  Further, the documents attached to the Memorandum of Points and Authorities are not judicially noticed by the Court to the extent they are not included in the request for judicial notice.

 

·         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 Elizabeth K. Lee, Department 17.

 

 

_____________________________________________________________________

 

 

In the Superior Court of the State of California

In and for the County of San Mateo

 

Special Set Calendar

Judge: Honorable JOSEPH C. SCOTT

Department 25

 

400 County Center, Redwood City

Courtroom 2L

 

OCTOBER 24, 2014

 

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

3.      YOU MUST CALL (650) 261-5125 BEFORE 4:00 P.M. TO INFORM THE COURT OF YOUR INTENT TO APPEAR.

4.      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 499820    JOWHAL HOLDINGS, LTD VS. LAWRENCE A. KRAUSE

 

 

JOWHAL HOLDINGS, LTD                  JEREMY KATZ

LAWRENCE A. KRAUSE                    JOEL A. GOLDMAN

 

 

MOTION FOR ATTORNEY’S FEES

 

 

·         GRANTED in part.  Attorney fees $64,603.00, costs $5611.00.

 

·         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 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

2

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

 

 

APPLIED UNDERWRITERS, INC.            MICHAEL K. PERKINS

ARTISAN BUILDERS                      BETTY J. LEVINE

 

 

MOTION FOR RECONSIDERATION OF THE ORDER ON DEMURRER AND MOTION TO STRIKE

 

 

·         Appear.  CourtCall is acceptable. .

 

 

______________________________________________________________________

 

9:00

3

PRO 119392    CONSERVATORSHIP OF SARAH FRENCH

 

 

DEREK FRENCH                          SETH E. WATKINS

 

 

HEARING RE: 3RD AND FINAL ACCOUNTING

 

·         Appear. 

 

 

HEARING RE: 3RD AND FINAL ACCOUNTING & REPORT OF SUCCESSOR & SUCCESSOR TRUSTEE; PETITION FOR ALLOWANCE

 

·         Appear. 

 

 

____________________________________________________________________

 

 

In the Superior Court of the State of California

In and for the County of San Mateo

 

SPECIAL SET CALENDAR

Judge: Honorable MARK R. FORCUM

Department 8

 

400 County Center, Redwood City

Courtroom 2H

 

OCTOBER 24, 2014

 

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

 you must call (650) 261-5108 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

1:30

1

CIV 498147    KENNETH KIM, ET AL. VS. PACIFIC PENINSULA GROUP

 

 

KENNETH KIM                           ANTHONY J. ADAIR

PACIFIC PENINSULA GROUP               ETHAN A. MILLER

 

 

MOTION TO SEVER BY CLARENDON AMERICA INSURANCE COMPANY

 

·         Defendant Clarendon America Insurance Company’s Motion to Sever is DENIED.

 

 

JOINDER OF LEXINGTON INSURANCE COMPANY TO CLARENDON AMERICA INSURANCE COMPANY’S MOTION TO SEVER

 

·         Defendant Lexington Insurance Company’s Joinder to Clarendon Insurance Company’s Motion to Sever is DENIED.

 

 

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© 2014 Superior Court of San Mateo County