March 30, 2017
Law & Motion Department Tentative Rulings
  • Law and Motion Department Tentative Ruling Line:  (650) 261-5019
  • Other Judges' tentatives: please reference the appropriate Case Number and Case Caption below and contact the appropriate department.

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

 

In the Superior Court of the State of California

In and for the County of San Mateo

 

Law and Motion Calendar

Judge: Honorable RICHARD H. DuBOIS

Department 16

 

400 County Center, Redwood City

Courtroom 7A

 

Friday, March 24, 2017

 

NOTICE TO ALL COUNSEL

 

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

 

 

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

 

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

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

 

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

 

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

 

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

 

    Case                  Title / Nature of Case

9:00

Line: 1

16-CIV-02469     TELIGENZ TECH SOLUTIONS PVT. LTD. vs. TORA HOLDINGS, INC.

 

 

TELIGENZ TECH SOLUTIONS PVT. LTD.       TERANCE D. ORME

TORA HOLDINGS, INC.                    JEREMY SUGERMAN,

 

 

DEMURRER TO SECOND AMENDED COMPLAINT

TENTATIVE RULING:

 

Defendant TORA HOLDINGS, INC.’s Demurrer to Second Amended Complaint is SUSTAINED IN PART and OVERRULED IN PART, as follows: 

 

  • OVERRULED as to the entire SAC, on the ground that the “Settlement Agreement and General Release” executed by Plaintiff on October 22, 2014 bars this action.  While the Court GRANTS Defendant’s Request for Judicial Notice of this document, the Court does not find that Plaintiff’s claims are precluded by its terms.  The Settlement Agreement expressly states at Paragraph 10 that the General Release is “with respect to any and all claims, liabilities and causes of action…which have arisen, occurred or existed at any time prior to the signing of this Agreement…”.  (RJN, Exhibit 1 at p. 3.)  However, the allegations of the SAC indicate that Plaintiff’s claims arose after the signing of this Settlement Agreement, in November 2014.  Accordingly, the demurrer is overruled on this ground.

 

  • SUSTAINED WITHOUT LEAVE TO AMEND as to the First cause of action for failure to disclose material information and Second cause of action for fraud.  These causes of action are virtually identical to Plaintiff’s Fourth cause of action for breach of the Non-Disclosure Agreement.  “Conduct which merely is a breach of contract is not a tort.”  Freeman & Mills v. Belcher Oil Co. (1995) 11 Cal.4th 85, 107.

 

  • SUSTAINED WITH LEAVE TO AMEND as to the Third cause of action for misappropriation of trade secrets.  “It is crucial to any California Uniform Trade Secrets Act (CUTSA) cause of action – and any defense – that the information claimed to have been misappropriated be clearly identified.”  Silvaco Data Sys. v. Intel Corp. (2010) 184 Cal.App.4th 210, 221.  Here, the SAC merely describes Plaintiff’s trade secrets as being contained in the “entire source code”; indeed its product is only ever identified as the “Subject Code” without further description.  Moreover, the SAC alleges that the “Subject Code” underwent extensive rewriting over the course of the parties’ negotiations.  Plaintiff is required to clearly identify the information that it claims was misappropriated.

 

  • OVERRULED as to the Fourth cause of action for breach of the NDA and Sixth cause of action for breach of the implied covenant of good faith and fair dealing with respect to the NDA.  These claims are sufficiently stated.

 

  • SUSTAINED WITHOUT LEAVE TO AMEND as to the Fifth cause of action for breach of the LOI and Seventh cause of action for breach of the implied covenant of good faith and fair dealing with respect to the LOI.  The clear and express terms of the LOI state, “Only sections 12 through 14 of this LOI will be legally binding upon the parties.”  (SAC Exhibit 2, page 4.)  Where parties agree in a letter of intent that contractual obligations will not arise until the execution of a final agreement, there is no claim for breach of that letter of intent.  Beck v. American Health Group Int’., Inc. (1989) 211 Cal.App.3d 1555, 1563.  Moreover, Plaintiff does not, and cannot, allege that all of the conditions precedent set forth in the LOI were met.  The demurrer to these causes of action, which require the existence of a valid contract, is therefore sustained without leave to amend.

 

  • SUSTAINED WITHOUT LEAVE TO AMEND as to the Eighth cause of action for unfair business practices, which Plaintiff failed to oppose.  This claim is based on the same allegations of disclosure or misuse of confidential information set forth in Plaintiff’s CUTSA claim.  Where a claim is based on the “identical nucleus” of facts as a trade secrets misappropriation claim, it is preempted by CUTSA.  Digital Envoy, Inc. v. Google, Inc. (2005) 370 F.Supp.2d 1025, 1033. 

 

Plaintiff shall file and serve an amended complaint within 15 days of service of notice of entry of this order.

 

Demurring 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 Richard H. DuBois, Department 16. 

 


9:00

Line: 2

16-CIV-02883     JEFFREY GREENBERG Vs. JOHN BONIFACIO, et al.

 

 

 

GORDON KENNY REALTY, INC.              R. ERNEST MONTANARI

JEFFREY GREENBERG                      ANTHONY L. LABEL

 

 

MOTION TO FILE FIRST AMENDED COMPLAINT

TENTATIVE RULING:

 

The motion for leave to file a first amended complaint is GRANTED. The proposed new allegations, if proven, possibly supports a claim for punitive damages. For the present motion, the Court declines to rule on whether the allegations are legally sufficient as a matter of law. (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048 (preferred practice is to allow amendment and test pleadings by subsequent motion); see also California Casualty Gen. Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 281.)

 

Plaintiff shall file and serve his First Amended Complaint no later than March 28, 2017.

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.

 



9:00

Line: 3

CIV523788     ANNA-BECKY REDLICH VS. RELIANCE MANAGEMENT GROUP, inc.

 

 

ANNA-BECKY REDLICH AND MR BURTON        KIMBERLY DONOVAN

RELIANCE MANAGEMENT GROUP, INC          GREGORY K. KLINGSPORN

 

 

MOTION FOT LEAVE TO FILE AN AMENDED COMPLAINT/ANSWER AND TO REOPEN DISCOVERY BY PLAINTIFF ANNA-BECKY REDLICH

TENTATIVE RULING:

 

The Motion of Plaintiff Anna-Becky Redlich and Cross-Defendant Paul Burton (“moving parties”) for Leave to File Amended Complaint and Amended Answers to Cross-Complaint and to Reopen Discovery, is DENIED.

 

Moving parties seek to file a Second Amended Complaint as well as Amended Answers to the Cross-Complaint.  (See Donovan Decl., Exhs. A-C.)  Moving parties claim that these amendments are needed because they recently retained new counsel, and realized they now need to amend their pleadings.  

The court recognizes that there is a strong policy to liberally permit amendments to pleadings.  Motions to amend are appropriately granted as late as the first day of trial, or even during trial, if the opposing party is alerted to the charges by the factual allegations, no matter how framed, and the opposing party will not be prejudiced.  (Honig v. Financial Corp. of America (1992) 6 Cal.App.4th 960, 965.)  Leave to amend is properly denied where the proposed amendment opens up a new field of inquiry without a satisfactory explanation as to why this major change had not been made long before trial.  (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487.) 

The parties were scheduled for trial on January 17, 2017, and it appears that the trial date was continued to May 30, 2017 because no courtroom was available on the trial date.  Thus, Defendants were prepared to go to trial in January.  (See Klingsporn Decl., ¶ 15.)  Defendants’ counsel states that allowing these amendments would necessitate additional discovery.  (See Klingsporn Decl., ¶¶ 15-16.)  Thus, it is difficult to see how Defendants would not be prejudiced by these amendments.  This case was filed in August 2013, discovery closed in December 2016, and the parties were prepared to go to trial in January 2017. 

 

Similarly, after considering all of the relevant factors in whether to reopen discovery, the court exercises its discretion to deny moving parties’ motion.  (See C.C.P. sec. 2024.050(b).)  First, there was a lack of diligence by moving parties in conducting discovery.  There is also a high likelihood that reopening discovery will prejudice Defendants.  For example, moving parties propose that any discovery propounded be responded to within 15 days, instead of the regular 30 days for responses, to ensure that discovery is completed in light of the current trial date.  (See moving parties’ proposed order.)  It seems likely that reopening discovery could also very well prevent the case from going to trial on the current trial date.  The only factor that weighs in moving parties’ favor is the necessity of the discovery in order to prepare and defend their cases in this action.  However, all of the other factors strongly weigh in favor of denying this motion, particularly the prejudice to Defendants since discovery closed in December 2016 and Defendants have been prepared to go to trial.

 

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: 4

CIV533722     FRANK BERLANGA VS. ARTHUR WIDTFELDT, ET AL.

 

 

ARTHUR WIDTFELDT                       CARY S. SMITH

FRANK BERLANGA                         GINO J. MOLINARI

 

 

MOTION ORDER TO COMPEL VERIFIED RESPONSES TO FORM INTERROGATORIES

TENTATIVE RULING:

 

Defendant’s unopposed motion to compel responses to form interrogatories, special interrogatories, and inspection demand is GRANTED.  Plaintiff shall provide verified responses, without objection, to the interrogatories and inspection demand on or before April 7, 2017. 

 

The request for sanctions is also granted pursuant to CCP Sections 2030.290(c) and 2031.300(c).  Plaintiff shall pay defendant $360 within 10 days. 

 

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: 5

CIV536067     AVRHARM YUSUPOV VS. BANK OF AMERICA, ETAL

 

 

NATIONSTAR MORTGAGE                    KAREN PALLADINO CICCONE

AVRHARM YUSUPOV                        ERIKSON M. DAVIS

 

 

MOTION FOR SUMMARY JUDGMENT

TENTATIVE RULING:

 

This matter is dropped from calendar at the request of the moving party.

 



9:00

LineS: 6 & 7

CIV538805     SYROUN SANOSSIAN VS. HAL NELSON, ET AL.

 

 

HAL NELSON                             Patrick C. Kerwin

SYROUN SANOSSIAN                       MARC D. BENDER

 

 

6. MOTION FOR PROTECTIVE ORDER

TENTATIVE RULING:

 

This matter is dropped from calendar as the case has settled.

 

7. MOTION TO BE RELIEVED AS COUNSEL

TENTATIVE RULING:

 

This matter is dropped from calendar at the request of the moving party.

 

 



9:00

Line: 8

CIV539072     VALERIE HICKS VS. WELLS FARGO BANK, NA

 

 

VALERIE HICKS                          MATTHEW MELLEN

WELLS FARGO BANK, NA                   MICHAEL J. STEINER

 

 

MOTION FOR SUMMARY OF JUDGMNET/ADJUDICATION OF ISSUES

TENTATIVE RULING:

 

Defendant Wells Fargo Bank’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication, is GRANTED.

 

A motion for summary judgment must be granted if all the papers submitted show that there is no triable issue as to any material fact, or there is a complete defense and that the moving party is entitled to a judgment as to that claim as a matter of law. CCP sec. 437c(c).

 

In moving for summary judgment, the “defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” Aguilar v. Atlantic Richfield Co., 25 Cal. 4th 826, 855 (2001). “All that the defendant need do is to ‘show[] that one or more elements of the cause of action . . . cannot be established’ by the plaintiff. In other words, all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action.”  Id. at 853.

 

Plaintiff asserts three causes of action in her complaint: (1) declaratory relief, (2) elder abuse, and (3) violation of Business and Professions Code sec. 17200, et seq. (the “Unfair Competition Law”).

 

Each of these causes of action is based on one single argument, Plaintiff’s claim that Wells Fargo caused Plaintiff’s principal balance to increase beyond $531,250 (the 125% negative amortization cap).

 

The undisputed facts show that Plaintiff’s principal balance was, at its peak, $487,724.65 (below the $531,250 cap). In or about 2012, Plaintiff stopped making payments on her loan and has not resumed making payments. Plaintiff argues that other amounts that have accrued as a result of her default - including the arrearage that resulted from payments that have come due but have not been paid, unpaid advances by Wells Fargo for property taxes, unpaid late fees and other fees and expenses - also form a part of her unpaid principal balance and, as a result, her principal balance has exceeded the negative amortization cap.

 

The terms of the promissory note make clear that the only thing that can increase the Plaintiff’s principal balance is “deferred interest,” and deferred interest is defined as interest that was not paid by Plaintiff in a month in which Plaintiff made a payment that was insufficient. This does not include deferred interest not paid in months where Plaintiff makes no payment at all.

 

In other words, “deferred interest” is only when Plaintiff makes a payment, but that payment is insufficient to pay all interest that accrued that month. The contract does not say that interest not paid in months where Plaintiff makes no payment at all will be capitalized into the loan.  There is a significant difference between “unpaid loan balance” and “unpaid principal balance” or, put another way, between “unpaid principal” and “total amount due under the loan”.

 

Further, the terms of the note are not ambiguous just because the parties disagree on the meaning of the contract. An agreement is not ambiguous merely because the parties (or judges) disagree about its meaning. Alameda County Flood Control v. Dept. of Water Resources 213 Cal. App. 4th 1163, 1189 (2013).

 

Therefore, Plaintiff’s theory of liability for all three causes of action, that Wells Fargo caused Plaintiff’s principal balance to increase beyond the 125% negative amortization cap in violation of the Deed of Trust and Promissory Note, fails.

 

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, Wells Fargo Bank If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10.  If the tentative ruling is uncontested, prevailing party is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order is to be submitted directly to Judge Richard H. DuBois, Department 16.

 



9:00

Line: 9  

CLJ534881     CAVALRY SPV I, llc, ET AL. VS. CHUKWUEMEKA IHENACHO

 

 

CAVALRY SPV I, LLC                     STEPHEN S. ZELLER

CHUKWUEMEKA IHENACHO                   Pro/PER

 

 

MOTION TO DEEM FACTS AS ADMITTED

TENTATIVE RULING:

 

Plaintiff’s unopposed motion is GRANTED.  The genuineness of any documents and the truth of any matters in the requests for admission are deemed admitted. 

 

The request for sanctions is also granted pursuant to CCP Section 2033.280(c).  Defendant shall pay plaintiff $260 within 10 days. 

 

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.

 



9:01

Line: 10

CIV533328     SIX4THREE, LLC VS. FACEBOOK, INC, ET AL.

 

 

SIX4THREE, LLC                         BASIL P. FTHENAKIS

FACEBOOK, INC.                         LAURA E. MILLER

 

 

MOTION FOR LEAVE TO CONTINUE PRETRIAL DEADLINES

TENTATIVE RULING:

Plaintiff SIX4THREE, LLC’s Motion to Continue Pre-trial Deadlines is GRANTED.  Per Code Civ. Proc. Sect. 2024.050, given the current case status and its procedural history, the Court finds good cause to continue all pretrial deadlines.  While this Order is not based on any other pending motions, the Court notes the upcoming April 7, 2017 and April 13, 2017 hearings on Plaintiff’s motion to compel and motion for leave to file a Third Amended Complaint.  The parties shall be prepared to discuss appropriate pretrial deadlines at those hearings as the Court will advise the parties of the new pre-trial deadlines as part of the Court’s ruling on those motions.  

In assessing Plaintiff’s request to continue the pretrial deadlines, the Court is cognizant of the case’s procedural history and the parties’ discovery disputes to date.  Plaintiff contends a continuance is necessary because FB has obstructed discovery, whereas FB contends Plaintiff has not been diligent in completing discovery.  This is a document-intensive case, and discovery has been extensively delayed, first due to multiple amendments to the Complaint, followed by several Demurrers, and then several discovery disputes, primarily involving the scope of Plaintiff’s discovery requests to FB.  The case was recently delayed further when FB removed it to federal court in response to Plaintiff invoking federal anti-trust law as a basis for its Section 17200 claim.  The removal of the case to federal court also caused the May trial date to be vacated.  Now that the case has been remanded back to this Court, a Case Management Conference is set for June 29, 2017, at which time, or shortly thereafter, the Court will set a new trial date.   

Under the circumstances, the Court agrees the pre-trial deadlines should be continued.  FB did not start to produce documents until late 2016.  As stated, there were valid reasons for that delay, but the fact is, substantial discovery remains to be completed, both in terms of document productions and depositions.  The parties are also awaiting a ruling on Plaintiff’s motion to compel discovery from FB, set for a hearing on April 7, 2017, and now a motion for leave to file a Third Amended Complaint, to be heard on April 13, 2017.  Both parties will inevitably be producing additional documents (the Court notes FB’s pending motion to compel production of Plaintiff’s “gripe-site” documents, set for hearing on April 12, 2017), which need to be reviewed, and thereafter, depositions completed.  FB argues delay in that Plaintiff has not taken a single deposition in the case.  There is some merit to that argument.  However, there is also merit to Plaintiff’s contention it needs to first obtain and review the relevant documents before it can take meaningful depositions.  And as stated, the recent federal court proceedings caused further delay.  Trial is still at least several months away.  The Court finds that any prejudice to FB from extending the pretrial deadlines is outweighed by the need for additional time to complete discovery. 

 

Plaintiff’s request for sanctions is DENIED.  The Court is cognizant of Plaintiff’s accusations against of FB of delay, and Plaintiff’s representation to the district court that it would “move the Superior Court to maintain the case on the trial schedule for May 15, 2017.”  Plaintiff apparently convinced the federal court to expedite the briefing schedule on its remand motion, based in part on that representation.  While the Court does not find a basis to deny this motion based on principles of judicial estoppel, it does find Plaintiff’s arguments to be contradictory.  And as for Plaintiff’s accusations of obstructionism, the Court notes that several of Plaintiff’s discovery requests to FB were previously found to be overbroad and unduly burdensome, and FB has apparently already produced roughly 800,000 pages of documents, which cuts against the allegation of bad faith.  The sanctions request has no merit. 

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.



 

 

 

In the Superior Court of the State of California

In and for the County of San Mateo

 

Special Set Calendar

Judge: Honorable JOSEPH C. SCOTT

Department 25

 

400 County Center, Redwood City

Courtroom 2G

 

Friday, March 24, 2017

 

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

1. YOU MUST CALL (650) 261-5125 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

Line: 1

CIV512480     ANN FORRISTER, ET AL. VS. ELIZABETH F. CUNDIFF, ET AL.

 

 

ANN FORRISTER                          brian w. NEWCOMB

ELIZABETH CUNDIFF                       KERRI A. JOHNSON

 

 

Motion for Attorney's Fees

TENTATIVE RULING:

 

Appear.

 

 

Motion to Tax Costs

TENTATIVE RULING:

 

Appear.

 


 

 

 


POSTED:  3:00 PM

 

© 2017 Superior Court of San Mateo County