February 22, 2018
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 susan greenberg

Department 3

 

400 County Center, Redwood City

Courtroom 2B

 

Monday, February 5, 2018

 

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-02957     246 ATHERTON AVENUE LLC vs. TRAIS FLUORS LLC, et al.

 

 

246 ATHERTON AVENUE LLC                H. MICHAEL CLYDE

TRAIS FLOURS LLC                       LAWRENCE E. BUTLER

 

 

motion to stay

TENTATIVE RULING:

 

Defendant JAWAD KAMEL’s Renewed Motion to Stay Enforcement of Judgment is MOOT.  Pursuant to the Amended Judgment entered in this action on January 16, 2018, the interpleaded funds, with accrued interest, were transferred to Defendant TRAIS FLUORS, LLC on January 29, 2018. 

 

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

17-CIV-02950     FRANCISCO CARRASCAL, et al vs. AVI-BEN ABRAHAM,

                   JR., et al.

 

 

AVI-BEN ABRAHAM, JR.                   pro/per

FRANCISCO CARRASCAL                    Pro/per

 

 

hearing on demurrer

TENTATIVE RULING:

 

The Demurrer of defendant Avi-Ben Abraham is sustained with leave to amend. Plaintiffs have until February 26, 2018 to file and serve a First Amended Complaint.

 

Defendant demurs to the entire complaint on the sole ground of failure to state a claim. C.C.P. § 430.10(e).

 

Procedural Issue re “Opposition” Papers. Instead of an opposition, Plaintiffs filed a separate motion, with its own hearing date, “to object to the demurrer.” If deemed an opposition, those papers were late-filed (opposition was due Jan 23, 2018; “opposition” papers were filed Jan 29, 2018). Moreover, the proof of service shows that service was made on a different law firm—i.e. a firm that does not appear to represent the Defendants in this case.

 

In the interest of reaching the merits, the Court will consider the arguments raised in the “Motion to Object” as if it were a properly-filed opposition. Because there is a service issue, if any defendants appear and request time to draft a written reply to the “opposition,” the Court will continue this hearing and order a briefing schedule.

 

Res Judicata. Defendant argues that a prior judgment in a federal civil case operates as res judicata barring the instant claims. The elements of the doctrine of res judicata/collateral estoppel are as follows:

 

The prerequisite elements for applying the doctrine to either an entire cause of action [res judicata/claim preclusion] or one or more issues [collateral estoppel/issue preclusion] are the same: (1) A claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding. [Citations.]

 

People v. Barragan (2004) 32 Cal.4th 236, 253, quoting Brinton v. Bankers Pension Services, Inc. (1999) 76 Cal.App.4th 550, 556 (brackets in original). Here, Defendant is not able to establish the second element required to invoke the doctrine of res judicata—that the prior proceedings resulted in final judgment on the merits. While it is true that a final judgment was reached in the prior federal case (see RJN (f: 12/07/17), Ex. H), the ruling upon which that prior judgment was based expressly limits its purview:

 

The case is therefore DISMISSED WITH PREJUDICE as to all defendants for lack of subject-matter jurisdiction. Plaintiffs’ claims might have merit, but they may not bring them in federal court. Instead, they must bring them in state court.

 

RJN (f: 12/07/17), Ex. G. Moreover, even if the ruling was not limited expressly, the basis of the ruling—that, after dismissing claims under federal law like violation of the Americans with Disabilities Act (ADA) or Title VII of the Civil Rights Act, the federal court lacked supplemental jurisdiction to adjudicate the remaining state law claims—is not adjudication “on the merits” as it is a procedural matter regarding subject-matter jurisdiction. Since it is not a decision “on the merits,” it does not meet the elements required for applying the doctrine of res judicata.

 

Statute of Limitations and Exhaustion of Administrative Remedies. Defendant argues that Plaintiffs’ claims are barred by the applicable statutes of limitations. The complaint omits any reference to the timing of the events in question. To establish a factual timeline, Defendant cites evidence that Plaintiffs submitted in support of a motion that they brought in the prior federal civil case. That same briefing has been provided in the “Motion to Object” that Plaintiffs recently filed. As such, Plaintiffs can be held to the factual positions contained within those documents. Specifically, the documents show that the employment in question ceased by June 2014. RJN (f: 12/07/17), Ex. D (PDF, p. 48); see also Motion to Object to Demurrer (f: 01/29/18) (PDF, p. 23). Based upon these dates, Defendant argues the following statutes of limitations:

 

·      First Cause of Action (Wrongful Termination)—one year (C.C.P. § 335.1);

 

·      Second Cause of Action (Discrimination Based on Race or Disability under FEHA)—one year to file an administrative complaint with FEHA and, if FEHA issues a “right-to-sue” letter, one-year from issuance of that letter to file a civil complaint (Gov’t Code § 12965(b));

 

·      Third & Fourth Causes of Action (Emotional Distress)—two years (C.C.P. § 335.1).

 

Defendant is correct as to the second, third, and fourth causes of action. See Chin, et al., Cal. Prac. Guide: Employment Lit. (The Rutter Group, 2017) ¶ 16:442, et seq. and ¶ 16:481, et seq. However, with regard to wrongful termination, Defendant’s argument glosses over the fact that the statute of limitations applicable to “wrongful termination” depends upon the underlying basis for the termination—i.e. wrongful termination in violation of public policy uses the same statute of limitations as applies to torts involving personal injury, but a wrongful termination as a breach of contract uses the statute of limitations applicable to breach of contract. See Chin, et al., Cal. Prac. Guide: Employment Lit. (The Rutter Group, 2017) ¶¶ 16:447 and 16:450. Here, Plaintiffs’ wrongful termination claim contains a myriad of legal theories. However, despite this, the facts alleged boil down to the following:

 

Plaintiffs were wrongfully terminated by Defendants because Plaintiffs were going to report Defendants for not paying them their fair wages. Defendants are in violation of terminating Plaintiffs for being possible Whistleblowers which violates State and Federal Law.

 

Complaint, p.3, ¶ 3. To allege a whistleblowing claim, “an administrative complaint must be filed within six months of the alleged violation.” See Chin, et al., Cal. Prac. Guide: Employment Lit. (The Rutter Group, 2017) ¶ 16:493.7, citing Labor Code § 98.7(a). Plaintiffs have not provided any evidence that they filed an administrative claim within six months, and Defendants specifically raise this “failure to exhaust administrative remedies” as grounds for demurrer. See Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724.

 

The hearing on Plaintiffs’ “Motion to Object to the Demurrer to the Complaint” is advanced to be heard concurrently with today’s demurrer. As such, the hearing set for February 8, 2018 will be summarily vacated as moot and no appearances will be necessary on Thursday, February 8, 2018.

 

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, DEMURRING 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 Susan L. Greenberg, Department 3.

 

 

 



9:00

Line: 3

17-UDU-00708     ALLAN & HENRY, INC. vs. CEPHAS ENTERPRISES,

                   INC., et al.

 

 

ALLAN & HENRY, INC.                    PAYMON HIFAI

MERVIN A. MORAN                        pro/per

 

 

motion for attorney fees

TENTATIVE RULING:

 

Plaintiff Allan & Henry, Inc.’s unopposed Motion for Fees and Costs is GRANTED.  As the prevailing party in the unlawful detainer action, Plaintiff is entitled to recover fees and costs and Defendant Disaster Restoration & Recovery is liable for Plaintiff’s fees and costs pursuant to the lease agreement and Cal. Civ. Code §§ 1717 and 1995.330(a). Based on the papers submitted – Plaintiff’s total fees and costs of $41,765.62 appear reasonable based on the nature and work involved in preparing, researching, briefing and arguing the various motions related to the litigation of the underlying 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: 4

CIV519845     KERA OAKLAND LLC, ET AL. VS. GEORGE A. ARCE, JR.

 

 

KERA OAKLAND, LLC                      SCOTT E. ATKINSON

GEORGE A. ARCE, JR.                    RUSSELL S. ROECA

 

 

motion for order specially setting trial date

TENTATIVE RULING:

 

The Joint Motion of Plaintiffs Kera Plaza, LLC, et al. (“Plaintiffs”), and Defendants Arce Oakland, LLC, et al. (“Defendants”) (collectively “Moving Parties”), Extending the Five Year Period Under Code of Civil Procedure Section 583.310, or, in the Alternative for an Order Specially Setting Trial Date, is DENIED. 

 

Moving Parties have not presented a written stipulation signed by all the parties agreeing to extend the time in which to bring this action to trial.  (See C.C.P. § 583.330(a).)    Further, Moving Parties have not provided any authority to support that the agreement of Defendant Bluett  & Associates, Inc., et al. (“Bluett Defendants”) is not necessary because they were not named in the original Complaint and the five year statute against them runs at a later date. 

 

Moving Parties also have not established that any of the grounds for trial preference in Code of Civil Procedure section 36 apply.  To the extent that Moving Parties are relying on section 36(e) regarding the court’s discretion, the court finds that it would not be in the interests of justice to grant trial preference. Moving Parties ask for a trial date before February 11, 2018, which is less than two weeks away.  Such a trial date would unduly prejudice the Bluett Defendants. 

 

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

CIV537384     JASON CROSS, ET AL. VS. FACEBOOK, INC., ET AL.

 

 

JASON CROSS                            MARK PUNZALAN

FACEBOOK, INC.                         JULIE E. SCHWARTZ

 

 

motion to be relieved as counsel

TENTATIVE RULING:

 

The motion to be relieved as counsel of record is denied without prejudice.  Moving party has not provided proof that the motion was served in compliance with CRC 3.1362  and CCP §1005.  Service by overnight delivery on January 24, 2018 did not provide the notice required by §1005. 

 

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

CIV537691     AMBER LAUREL BAPTISTE VS. MICHAEL LEWIS GOGUEN

 

 

AMBER LAUREL BAPTISTE                  PATRICIA L. GLASER

MICHAEL LEWIS GOGUEN                   DIANE M. DOOLITTLE

 

 

motion for leave to file second amended answer

TENTATIVE RULING:

 

Dropped from calendar per stipulation and order filed 1-30-18

 

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

Lines: 7 & 8

CIV537867     KATHY AI GEN TONG VS. DAVID CHAN, ET AL.

 

 

KATHY AI GEN TONG                      STEVEN M. MORGER

DAVID CHAN                             GRANT H. BAKER

 

 

7. motion to strike

TENTATIVE RULING:

 

This hearing is continued to February 27, 2018 at 9 am

 

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.

 

 

 

8. hearing on demurrer

tentative ruling:

 

This hearing is continued to February 27, 2018 at 9 am

 

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.

 

 

 

 

 

 


POSTED:  3:00 PM

 

© 2018 Superior Court of San Mateo County