September 28, 2016
Law & Motion Department Tentative Rulings
  • Law and Motion Department Tentative Ruling Line:  (650) 261-5019
  • Other Judges' tentatives: please reference the appropriate Case Number and Case Caption below and contact the appropriate department.

Telephonic Appearances (CourtCall): If an appearance is required or if a party has provided timely notice of intent to appear by 4:00 p.m. to the court and all parties, any party may appear telephonically through CourtCall. To do so, you must contact CourtCall at (888) 882-6878 no later than 4:30 p.m. on the court day prior to the hearing. Notifying CourtCall with your intent to appear is not an alternative to notifying the court. Please visit their website for more information. Please also see California Rule of Court No. 3.670.

 

In the Superior Court of the State of California

In and for the County of San Mateo

 

Law and Motion Calendar

Judge: Honorable jonathan e. karesh

Department 20

 

400 County Center, Redwood City

Courtroom 8C

 

Friday, September 23, 2016

 

NOTICE TO ALL COUNSEL

 

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

 

 

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

 

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

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

 

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

 

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

 

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

 

    Case                  Title / Nature of Case

9:00

Line: 1

16-CIV-00178     ROBERT MCKEEN vs. COUNTY OF SAN MATEO

 

 

ROBERT MCKEEN                          RON E. RAYES

COUNTY OF SAN MATEO                    Rebecca M. Archer

 

 

Hearing on DEMURRER

TENTATIVE RULING:

 

Defendant County of San Mateo’s Demurrer to the complaint is SUSTAINED without leave to amend.

 

Revenue & Taxation Code §63.1(c)(3)(D) is clear and unambiguous. The statute specifically exempts an individual who was adopted after reaching the age of 18.

 

Plaintiff’s arguments regarding equitable adoption fail. Equitable adoption is a doctrine used to enforce an oral contract to adopt, not to give an individual rights equal with those of a legally or statutorily adopted child. Estate of Wilson (1980) 111 Cal App 3d 242, 247. There is no justification for reading the doctrine into the statute.

 

Plaintiff’s arguments regarding equal protection also fail. To withstand a challenge to a classification under the equal protection clause, the law requires only that the classification rationally further a legitimate state interest unless the classification jeopardizes exercise of a fundamental right or category arises on the basis of an inherently suspect characteristic. Nordlinger v. Hahn (1992) 505 US 1, 10. And where a suspect classification is not involved, the burden is on the party challenging the unconstitutionality of the statute to establish that it’s classification is arbitrary. In this case, age is not a suspect classification. In re Chang K. (2006) 145 Cal App 4th 13, 20.

 

The court finds that there are a number of legitimate reasons to support the statute’s age limitation. First, it removes any incentive to abuse the adoption process in order to receive benefits such as this one. Second, the age limit situates adopted children closely to those of biological children as both groups have long-standing, beneficial relationships between and reliance on their parents and use of the real property. Third, those persons adopted after the age of 18 are still eligible for the exemption in relation to their biological parents pursuant to §63.1(c)(3)(A). Moreover, age as a basis for cutting off rights has been upheld as not violating equal protection. See In re Chang K., supra at 20.

 

Because age is not a suspect classification, the plaintiff here bears the burden of establishing that the classification is arbitrary. Plaintiff has not met his burden of showing that the classification is arbitrary. It appears rationally based to legitimate state purposes.

 

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: 2

CIV530270    JANET SKEENS VS. CROWN PROPERTIES

 

 

JANET SKEEN                            LAWRANCE A. BOHM

Crown properties                       THOMAS G. BEATTY

 

 

Motion to compel THE DEPOSITION OF DEFENDANT MARY LEE AND REQUESTS FOR DOCUMENTS

TENTATIVE RULING:

 

Plaintiff Janet Skeen’s Motion to Compel the Deposition of defendant Mary Lee is DENIED without prejudice. Pursuant to CCP §2025.450 in order to bring a motion to compel a deposition, the witness must fail to appear at the noticed deposition without having served a valid objection. Here, the plaintiff unilaterally canceled Ms. Lee’s deposition set for June 30, 2016. Plaintiff then re-noticed the deposition for August 26, 2016. As to this deposition, on August 16, defendant’s counsel notified plaintiff’s counsel that he was unavailable for deposition on that date and offered plaintiff two alternative dates for the deposition, either September 19 or 22. Plaintiff’s counsel did not respond to the offer of those two dates, but instead filed the instant motion to compel. The motion is premature as the defendant has not refused to appear.

 

Plaintiff Janet Skeen’s Motion to Compel defendant Mary Lee’s Response to Request for Production of Documents is DENIED without prejudice. It is unclear from plaintiff’s motion as to what document request they seek to compel. Plaintiff first served a Request for Production of Documents in 2015 which was responded to by the defendant on July 2, 2015. If plaintiff is seeking to compel further responses to that request, it is untimely. Plaintiff’s time to compel further responses expired 45 days after those documents were served, more than one year ago. CCP §2031.310(c); 2016.050.

 

If the plaintiff is asking the court to enter an order in connection with the Request for Documents that accompanied the deposition notice, it is also premature and does not comply with the requirements of CCP §2025.450. In order to bring a motion to compel, the witness must fail to produce for inspection documents at the deposition. And here, the deposition has never gone forward.

 

Plaintiff Janet Skeen’s Request for Sanctions is DENIED. The request is procedurally defective because the Notice of Motion fails to expressly state the request for sanctions. CCP §2030.030. See Alliance Bank v. Murray (1984) 161 Cal App 3d 1, 5-6.

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10.  If the tentative ruling is uncontested, prevailing party is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order is to be submitted directly to Judge Jonathan E. Karesh, Department 20.

 



9:00

Line: 3

CIV535494     HETTY KAN TULLOSS VS. MILLS-PENISULA HEALTH

 

 

HETTY KAN TULLOSS                      WILLIAM B. TULLOSS, JR.

MILLS-PENINSULA HEALTH SERVICES        JAHMAL T. DAVIS

 

 

Motion to compel further RESPONSES TO SPECIAL INTERROGATORIES (SET ONE)

TENTATIVE RULING:

Plaintiff’s Motion to Compel Further Responses to Interrogatory Nos. 38 and 39 is GRANTED.  The dispute centers on whether the requested information is relevant to the case.  Although Defendant’s responses include a privilege objection, the Opposition brief focuses solely on the relevance issue.  The Court finds that the interrogatories seek relevant information, or at a minimum are reasonably calculated to lead to the discovery of relevant, admissible evidence. 

The operative Complaint asserts claims for wrongful termination and constructive discharge.  Plaintiff contends she applied for a position with Palo Alto Medical Foundation (PAMF) because of MPHS’ non-response to her complaints about MPHS’ alleged regulation violations, and that MPHS may have ruined her chances of working for PAMF by making negative comments about her to PAMF.  Thus, communications that MPHS may have had with PAMF, which could include evidence of how MPHS felt about Plaintiff’s abilities, her work performance, and her qualifications for either her MPHS job or the PAMF position, are relevant to her wrongful termination and discharge claims, and potentially to damages. 

The argument that PAMF is not a party, and that the information sought is not part of Plaintiff’s “personnel and employment records” does not render it immune from discovery.  Discovery rights are broad; they are not limited to personnel or employment records.  And while this ruling is not based on any conclusion regarding an affiliation between PAMF and MPHS, the two entities clearly appear affiliated to some extent.  In fact, Plaintiff contends she applied for the PAMF position as an “internal” candidate through the on-line personnel system shared by MPHS and PAMF.  Without opining on the merits of the asserted claims, the requested discovery is permissible.  Defendant shall serve verified, further responses to Interrogatory Nos. 38 and 39 within 15 days of service of the notice of entry of order.     

 

The Court declines to impose sanctions.  However, Defendant is reminded that the “relevance to the subject matter” and “reasonably calculated to lead to discovery of admissible evidence” standards are applied liberally.  Any doubt is generally resolved in favor of permitting discovery.  See Colonial Life & Acc. Ins. Co. v. Sup.Ct. (1982) 31 Cal.3d 785, 790.  In its request for a discovery referee, Defendant states that it foresees additional discovery disputes and additional motions to compel by Plaintiff.  Hopefully further motions can be avoided by Defendant applying the correct standard for “relevant” information.  

 

Given that the parties disagree on whether a discovery referee is needed, because the appointment of a referee would add costs, and because there has been no showing that this case is “unusual” to the point of necessitating a referee (see Taggares v. Superior Court (1998) 62 Cal.App.4th 94, 105), the Court declines to appoint a discovery referee at this time.  This ruling is without prejudice to the parties raising this issue again should the need for a referee become more apparent.   

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10.  If the tentative ruling is uncontested, prevailing party is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order is to be submitted directly to Judge Jonathan E. Karesh, Department 20.

 



9:00

Lines: 4 & 5

CIV535500     AHNA BALI VS. HISHAM MOHAMED ADEL, ET AL.

 

 

AHNA BALI                              CHRISTOPHER B. DOLAN

Hisham Mohamed adel                    Sharon l. hightower

 

 

4. Hearing on demurrer to plaintiff’s First Amended Complaint to the Second Cause of Action for General Negligence

TENTATIVE RULING:

 

Defendant HD Car Wash, dba Jack’s Car Wash and Detail’s Demurrer to the Second Cause of Action found in the First Amended Complaint is SUSTAINED without leave to amend, pursuant to CCP sec. 430.10(e) because it fails to state facts sufficient to constitute a cause of action for general negligence against Defendant Jack’s Car Wash as a common carrier.

 

For purposes of the demurrer, all material facts in the pleadings are assumed to be true. Ellenberger v. Espinosa (2004) 30 Cal. App. 4th 943, 947. However, the deductions or conclusions of fact or law are not accepted as true. Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.

 

Defendant Jack’s Car Wash is not a “common carrier” within the meaning of Civil Code sec. 2100, et seq. A car wash is not analogous to a train, an airplane, an elevator, or an amusement park ride because the patron of the car wash has not relinquished control over the vehicle on the conveyor belt to the operator of the conveyor belt.

 

A car wash patron may either fail to put the car into neutral and/or press on the brake while the car is on the conveyor belt and thus remain in control of his own car and overpower the conveyor belt.

 

This Court declines to make new law, nor to expand the holding in Gomez v. Superior Court (2005) 35 Cal. 4th 1125.

 

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.  HEARING ON MOTION TO STRIKE

TENTATIVE RULING: 

 

For the reasons set forth above, Defendant HD Car Wash, dba Jack’s Car Wash and Detail’s Motion to Strike is GRANTED, pursuant to CCP secs. 435, 436(a). Paragraph 4 of the second cause of action in Plaintiff’s First Amended Complaint is stricken as a legal conclusion improperly included in the First Amended Complaint.

 

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

CIV537484     BANC OF AMERICA LEASING & CAPITAL LLC VS. PERSEID SOFTW LLC

 

 

BANC OF AMERICA LEASING & CAPITAL LLC KEVIN P. WHITEFORD

PERSEID SOFTWARE LLC                  DATEV DAVE SHENIAN

 

 

MOTION TO be relieved as counsel

TENTATIVE RULING:

 

Counsel Datev Shenian’s unopposed Motions to Withdraw as counsel for Defendant Perseid Software, LLC  is GRANTED pursuant to CCP § 284(2) and CRC Rule 3.1362.

 

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 client and opposing party/counsel as required by law and the California Rules of Court.  The order is to be submitted directly to Judge Jonathan E. Karesh, Department 20. 

 



9:00

Line: 7

CIV537530     SOPHIA ANDRITSAKIS VS. DAVID J. KAPLAN, ET AL.

 

 

SOPHIA ANDRITSAKIS                     EDIRIVERERE PATIENCE ADEYANJU

DAVID J. KAPLAN                        ARTHUR W. CURLEY

 

 

Motion to compel further responses

TENTATIVE RULING:

 

The Motion of Defendant David J. Kaplan, D.P.M., erroneously sued herein as David J. Kaplan (“Defendant”), to Compel Further Responses to Special Interrogatories, is GRANTED in part.  Plaintiff has not justified any of its objections to these interrogatories, and therefore is ordered to provide further responses without these objections.  However, Plaintiff’s supplemental responses also refer to writings in responses to these interrogatories, which is permitted by Code of Civil Procedure section 2030.210(a)(2).  Defendant has not established that Plaintiff waived this right.  Accordingly, no further substantive responses are required by Plaintiff as the court finds such responses to be code-compliant. 

 

Plaintiff shall therefore provide further responses, consisting solely of removing all objections, within ten days of service of notice of entry of order.

 

Both Defendant’s and Plaintiff’s requests for monetary sanctions are DENIED.

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10.  If the tentative ruling is uncontested, Defendant is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order is to be submitted directly to Judge Jonathan E. Karesh, Department 20.

 



9:00

LineS: 8, 9 & 10

CIV537691     AMBER LAUREL BAPTISTE VS. MICHAEL LEWIS GOGUEN

 

 

AMBER LAUREL BAPTISTE                   PATRICIA L. GLASER

MICHAEL LEWIS GOGUEN                    DIANE M. DOOLITTLE

 

 

8.  MOTION to compel further responses to special interrogatories AND DOCUMENTS

TENTATIVE RULING: 

 

The motion is GRANTED as to all matters. The matter is unopposed. The interrogatories seek discoverable information, and Plaintiff’s objections to all interrogatories lack merit. The Requests for Documents seek discoverable matter, and Defendant demonstrates good cause for production and inspection of the requested documents. Plaintiff’s objections to all document requests lack merit.

 

Plaintiff shall respond further to special interrogatories 17 through 36, inclusive.

 

Plaintiff shall respond further to request for production of documents, categories 68, 69, 70, 71, 72, 74, and 75.

 

Plaintiff shall serve the verified supplemental responses within 14 calendar days after service of Notice of Entry of Order Order granting this motion, whichever is later.

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10.  If the tentative ruling is uncontested, prevailing party is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order is to be submitted directly to Judge Jonathan E. Karesh, Department 20.

 

 

9.  MOTION for issuance of a letter of request regarding darcy hunt

TENTATIVE RULING: 

 

The unopposed Motion for Issuance of Letter of Request as to Darcy Hunt 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, prevailing party is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim, as well as any additional orders that are necessary, for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order is to be submitted directly to Judge Jonathan E. Karesh, Department 20.

 

 

10.  MOTION for issuance of letters of request regarding the city of calgary and bryan ward

TENTATIVE RULING:

 

The unopposed Motion for Issuance of Letter of Request as to the City of Calgary and Bryan Ward 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, prevailing party is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim, as well as any additional orders that are necessary, for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order is to be submitted directly to Judge Jonathan E. Karesh, Department 20.

 


 

 

 

 

 


POSTED:  3:00 PM

 

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