August 29, 2015
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 susan irene etezadi

Department 18

 

400 County Center, Redwood City

Courtroom 2M

 

Friday, August 28, 2015

 

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

1

CIV 440930       MIKE ROSEN VS. LEGACY QUEST

 

 

MIKE ROSEN                            PRO/PER

LEGACY QUEST                          BRADLEY KASS

 

 

MOTION AGAINST SURITIES FOR ORDER AWARDING ATTORNEY’S FEES AND COSTS INCURRED POST-JUDGMENT BY STEPHANIE ROSEN

 

 

Plaintiff’s counsel, Lawrence D. Miller, has advised the court by letter dated August 26, 2015, that this matter has settled. Plaintiff requests that all present and future motions related to this matter be vacated. The Court thus vacates the motion on request of Plaintiff’s counsel.

 

_____________________________________________________________________


9:00

2

CIV 513534       AUSTIAG HORMOZ PARINEH, ET AL. VS. POOROUSHASB

                   PARINEH, ET AL.

 

 

AUSTIAG HORMOZ PARINEH                ANDREW P. HOLLAND

POOROUSHASB PARINEH                   PRO/PER

 

 

MOTION FOR ORDER TO REOPEN DISCOVERY BY GUIV PARINEH

 

 

Defendant / Cross-Complainant GUIV PARINEH’s Motion to Reopen Discovery is DENIED.  Defendant has not met his burden of establishing good cause to reopen discovery at this late stage in the litigation.  Code Civ. Proc. § 2024.050; Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 249.

 

 

Plaintiffs’ evidentiary objections to the Declaration of George P. Eshoo are SUSTAINED as to Objection Nos. 1-15. 

 

 

Prevailing 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 Susan Irene Etezadi, Department 18.

 

_____________________________________________________________________


9:00

3

CIV 518381       LISA RACZYNSKI VS. DALAND NISSAN, INC.

 

 

LISA RACZYNSKI                        ALEXANDER A GUILLEN

DALAND NISSAN, INC., A CALIFOR        DAVID R. SIDRAN

 

 

PETITION TO CONFIRM CONTRACTUAL ARBITRATION AWARD.

 

 

This matter is continued to September 15, 2015, at 9:00 a.m., in the Law and Motion Department per stipulation and order signed by the parties and filed with the court on August 25, 2015.

 

 

Prevailing 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 Susan Irene Etezadi, Department 18.

_____________________________________________________________________


9:00

4

CIV 522667       S.J.AMOROSO CONSTRUCTION CO., INC. VS. F. CONNOLLY

                   CO., ET AL.

 

 

S.J. AMOROSO CONSTRUCTION CO., INC.   JANETTE G. LEONIDOU

F. CONNOLLY CO.

 

 

MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT BY MICHAEL BIRKELAND

 

 

Defendant Michael Birkeland’s motion to set aside default and default judgment is denied.  Defendant failed to attach a copy of the proposed responsive pleading as required by CCP §473(b).  The portion of the motion seeking to set aside the entry of default is untimely as default was entered on October 9, 2013, more than 6 months prior to the filing of this motion. Defendant has not shown the necessary diligence in bringing a motion to set aside the default judgment. Ludka v. Memory Magnetics Int'l (1972) 25 Cal. App. 3d 316, 321; Kendall v. Barker (1988) 197 Cal. App. 3d 619, 625.  Nor has defendant shown a satisfactory excuse for his default.

 

 

Prevailing 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 Susan Irene Etezadi, Department 18.

 

_____________________________________________________________________


9:00

5

CIV 529754       WEST BAY BUILDERS, INC. VS. CITY OF SAN MATEO

 

 

THOMPSON BUILDERS CORPORATION            TIMOTHY L. MCINERNEY

CITY OF SAN MATEO                        DOUGLAS M. MCMANAMON

 

 

DEMURRER TO CROSS-COMPLAINT BY PACIFIC WATER RESOURCES

 

 

The Demurrer as to the Second Cause of Action (Contribution) is SUSTAINED WITHOUT LEAVE TO AMEND because Plaintiff has not alleged the existence of a judgment between the parties, and gives no indication that there is such a judgment.

 

 

The Demurrers as to the First Cause of Action (Equitable Indemnity and Declaratory Relief) and Third Cause of Action (Indemnity Based on Tort of Another) are OVERRULED.

 

 

Cross-defendant Pacific Water Resources shall file and serve its answer within 20 days after service of Notice of Entry of Order.

 

 

Prevailing 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 Susan Irene Etezadi, Department 18.

_____________________________________________________________________


9:00

6

CIV 533041       MONIQUE T. DAVENPORT, ET AL. VS. BANK OF AMERICA

                   N.A./COUNTRYWIDE LOANS

 

 

MONIQUE T DAVENPORT                   Yousef J. Totah

BANK OF AMERICA NA/COUNTRYWIDE LOANS  JASON M. RICHARDSON

 

 

DEMURRER TO 1st Amended COMPLAINT of DAVENPORT BY BANK OF AMERICA NA/COUNTRYWIDE HOME LOANS

 

 

The unopposed Demurrer to the First Amended Complaint brought by Defendant BANK OF AMERICA, N.A. is SUSTAINED WITHOUT LEAVE TO AMEND, as follows:

 

 

SUSTAINED WITHOUT LEAVE TO AMEND as to the First Cause of Action for Fraud. The elements of fraud, which give rise to a tort action for deceit, are (1) misrepresentation; (2) knowledge of falsity; (3) intent to defraud; (4) justifiable reliance; and (5) resulting damage.  Nagy v. Nagy (1989) 210 Cal. App. 3d 1262, 1268.

 

 

Plaintiff has failed to demonstrate any resulting damages from          the alleged misrepresentation. The statute of limitations for fraud is three years.  Code Civ. Proc. § 338(d). Plaintiff entered into the loan in question in August 2007. Plaintiff sought a loan modification in 2010 and received a final denial of the modification application on March 5, 2012. This case was filed on March 23, 2015, which is more than three years after that last act, therefore this cause of action is barred by the statute of limitations.

 

 

SUSTAINED WITHOUT LEAVE TO AMEND as to the Second Cause of Action for an Accounting. An accounting “is not an independent cause of action but merely a type of remedy and an equitable remedy at that.” Batt v. City & County of San Francisco (2007) 155 Cal. App. 4th 65, 82.  Plaintiff has not alleged any basis for recovery of that form of equitable relief, nor does the accounting claim itself identify any such basis.

 

SUSTAINED WITHOUT LEAVE TO AMEND as to the Third Cause of Action for Unfair Business Practices.  To state a claim for unfair business practices, a Plaintiff must allege that Defendant engaged in business conduct that was unfair, unlawful or fraudulent.  See Bus. & Prof. Code § 17200.  A private party may sue under Bus. & Prof. Code § 17200 only if he has suffered injury in fact, and lost money or property as a result of unfair competition. Bus. & Prof. Code § 17204; R & B Auto Ctr., Inc. v. Farmers Group, Inc. (2006) 140 Cal. App. 4th 327, 360. Here, Plaintiff fails to allege any loss of money or property by virtue of her allegations against Bank of America.

 

 

SUSTAINED WITHOUT LEAVE TO AMEND as to the Fourth Cause of Action for Declaratory Relief.  The fundamental basis of declaratory relief is the existence of an “actual, present controversy over a proper subject.” City of Cotati v. Cashman (2002) 29 Cal. 4th 69, 79. The controversy must be pleaded specifically and the facts of the respective claims must be given. Id. at 80. Plaintiff has failed to allege specific facts as to the existence of any justiciable controversy as against Defendant.  

 

 

SUSTAINED WITHOUT LEAVE TO AMEND as to the Fifth Cause of Action for Quiet Title.  In order to assert a cause of action for quiet title, Plaintiff must allege tender.  “A mortgagor of real property cannot, without paying his debt, quiet his title against the mortgagee.” Miller v. Provost (1984) 26 Cal. App. 4th 1703, 1707. The offer of tender must be of the amount borrowed. Arnolds Management Corp. v. Eischen (1984) 158 Cal. App. 3d 575, 578. The Plaintiff must (1) demonstrate a willingness to pay and (2) show the ability to pay. In re Worcester 811 F. 2d 1224, 1231 (9th Cir. 1987) Plaintiff has failed to allege tender, or the present ability to tender.

 

 

Defendant’s Request for Judicial Notice is GRANTED, but only insofar as the documents were duly filed or recorded, but not as to the truth of any matters contained therein. The Court cannot accept as true the contents of pleadings or exhibits in another action because such documents are inadmissible hearsay. Day v. Sharp (1975) 50 Cal. App. 3d 904, 914.  

 

 

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

7

CIV 534029       SERENITY PRIVATE HOME CARE, INC. VS. ESTATE OF CESARE

                   FREDIANI

 

 

SERENITY PRIVATE HOME CARE, INC.      MARK A. MUNTEAN

ESTATE OF CESARE FREDIANI             JENNIFER GARDELLA

 

 

DEMURRER TO CROSS-COMPLAINT BY SERENITY PRIVATE HOME CARE INC.

 

 

Plaintiff/Cross-Defendant’s Demurrer to Defendant’s/Cross-Complainant’s Cross-Complaint is OVERRULED. The Cross-Complaint sufficiently states claims against Cross-Defendants with enough clarity to inform the Cross-Defendants what claims are being made against them.

 

 

Prevailing 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 Susan Irene Etezadi, Department 18.

_____________________________________________________________________


9:00

8

CIV 534191       CHALLENGE HORTICULTURE, INC. VS. STEVEN DODGE, ET AL.

 

 

CHALLENGE HORTICULTURE, INC.              NAM H. LE

STEVEN DODGE

 

 

DEMURRER TO FIRST Amended COMPLAINT BY JOSHUA VUKELICH, ET AL.

 

 

Matter is off calendar given stipulated change of venue by parties to San Diego County.

 

_____________________________________________________________________


9:00

9

CLJ 211366       JOHN T. CALLAN, ET AL. VS. RODNEY DUDUM, ET AL.

 

 

JOHN T. CALLAN                        JOHN T. CALLAN

RODNEY DUDUM                          SAMER DANFOURA

 

 

MOTION FOR SUMMARY JUDGMENT AS TO COMPLAINT (UNLAWFUL DETAINER) of CALLAN FILED BY RODNEY DUDUM, ET AL.

 

 

Defendants Rodney and Julie Dudum’s Motion for Summary Judgment is DENIED.  The declaration of plaintiff John Callan creates triable issues of material facts as to whether Plaintiffs did accept rent for a period extending beyond the expiration of the termination notice. The declaration of Plaintiff Kelly Callan creates triable issues of material fact as to both retaliation and breach of the warrant of habitability. There are triable issues of material facts as to Facts 4, 6, and 7.

 

 

MOTION FOR SUMMARY JUDGMENT AS TO COMPLAINT (UNLAWFUL DETAINER) of CALLAN FILED BY JOHN T. CALLAN, ET AL

 

Plaintiffs John and Kelly Callan’s Motion for Summary Judgment is DENIED. The declaration of defendant Rodney Dudum creates triable issues of material fact as to whether plaintiffs did accept rent for a period extending beyond the expiration of the termination notice. His declaration also creates triable issues of material fact as to retaliation and breach of the warrant of habitability. There are triable issues of material facts as to Facts 7, 12, 13, 14, and 15.

 

 

Plaintiff 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 Susan Irene Etezadi, Department 18

 

_____________________________________________________________________


9:00

10

CLJ 525352       STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY VS.

                   JOSE CONTRERAS, ET AL

 

 

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY  TODD F. HAINES

JOSE CONTRERAS

 

 

MOTION TO ENFORCE SETTLEMENT AGREEMENT BY STATE FARM MUTUAL AUTOMOBILE INSURANCE

 

 

Plaintiff State Farm Mutual Automobile Insurance Co.’s Motion to Enforce the Settlement is GRANTED pursuant to CCP §664.6. Judgment is entered in favor of Plaintiff in the amount of $5,957.64.

 

 

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.

 

_____________________________________________________________________


 

 

In the Superior Court of the State of California

In and for the County of San Mateo

 

Presiding Judge Law and Motion Calendar

Judge: HONORABLE JOHN L. GRANDSAERT

Department 11

 

400 County Center, Redwood City

Courtroom 2D

 

Friday, August 28, 2015

 

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

 you must call (650) 261-5111 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

9:00

1

CIV 519064       JACKIEJO LOPEZ, ET AL. VS. SOUTH SAN FRANCISCO POLICE

                    DEPARTMENT, ET AL.

 

 

JACKIEJO LOPEZ                        PRO/PER

SOUTH SAN FRANCISCO POLICE DEPARTMENT MELISSA M. HOLMES

 

 

MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT BY JACKIEJO LOPEZ

 

 

  • The Motions for New Trial or Motions for Judgment Notwithstanding the Verdict are DENIED.  There was no verdict in this case, nor was there a trial.  The challenged action was a dismissal for the failure of the Plaintiff to appear on the day of trial.  Neither motion filed is applicable to what is in effect a default judgment.  This tentative ruling, if adopted on the morning of the calendared hearing, will constitute the only notice of this ruling. 

 

_____________________________________________________________________


9:00

2

CIV 522607       NICOLE MCDEVITT, ET AL. VS. DEC, ET AL.

 

 

NICOLE MCDEVITT                       TYLER M. PAETKAU

DEC                                   JON B. ZIMMERMAN

 

 

MOTION TO VACATE, OR IN THE ALTERNATIVE CONTINUE, TRIAL DATE BY DEC

 

 

  • The Motion to Continue Trial is GRANTED.  The Court finds good cause to do so in light of the new defendants and new causes of action to be added to the action as a result of the August 11, 2015 granting of leave to file the First Amended Complaint.  To allow time for service, responsive pleadings/demurrers if any, motions for summary adjudication if any, and additional discovery resulting from the new parties and causes of action, and rather than resetting the matter, not technically at issue, for Case Management Conference, the Court grants the continuance of trial  to May 16, 2016.  A mandatory settlement conference date of May 3, 2016, at 1:30 p.m., in Dept. 21, is set, with all discovery deadlines to be based upon the new trial date.  Defendant DEC shall provide notice of this ruling to all parties.  

 

JOINDER OF JEFF BURGESS PAINTING AND DECORATING TO MOTION TO CONTINUE THE TRIAL

 

 

·         The Motion for Joinder is GRANTED.

 

 

_____________________________________________________________________

 

 

I

In the Superior Court of the State of California

In and for the County of San Mateo

 

Law and Motion Calendar

Judge: Honorable JOSEPH C. SCOTT

Department 25

 

400 County Center, Redwood City

Courtroom 2G

 

Friday, August 28, 2015

 

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

3. YOU MUST CALL (650) 261-5019 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.  

 

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 530400       AMAKAI, INC. VS. KATHY TONG

 

 

AMAKAI, INC.                          JOSEPH F. CHARLES

KATHY TONG

 

 

MOTION IN SUPPORT OF BILLING DETAILS SUPPORTING AN AWARD OF PECUNIARY LOSS BY AMKAI

 

 

·         It is apparent to the Court, based on the instant motion, that Plaintiff’s Motion for Summary Judgment did not fully dispose of the slander of title cause of action.  The parties are directed to appear to address why the Court should not reconsider its prior order granting summary judgment.

 

 

_____________________________________________________________________

 

 

 

 


POSTED:  3:00 PM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

© 2015 Superior Court of San Mateo County