September 2, 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

 

AUGUST 25, 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 506451       DEVON VAENUKU (ULUKALALA) VS. AMERICAN AIRLINES

 

 

DEVON VAENUKU (ULUKALALA)             PRO/PER

AMERICAN AIRLINES                     LARA VILLARREAL HUTNER

 

 

MOTION FOR SUMMARY JUDGMENT AS TO COMPLAINT of VAENUKU (ULUKALALA) FILED BY AMERICAN AIRLINES, INC.

 

 

·         The Motion for Summary Judgment is denied.

 

·         The undisputed facts are that Plaintiff’s claim arose before Defendant filed for Chapter 11 bankruptcy and that Plaintiff failed to file a Proof of Claim by the deadline set by the Bar Date Order. (UMF 1, 2, 4, 5, 6, 7, 8, 9, 12 and 14.)  Those facts, however, do not compel the conclusion that the present civil action must be dismissed.

 

·         The Bar Date Order sets forth exceptions from the claim filing requirement, including, “The following persons…are not required to file a Proof of Claim…:  any present or former employee…solely with respect to any prepetition Claim based on the payment of wages, salaries, [or] employee medical benefits…”  (Bar Date Order at 6 (Paragraph (j)(11), attached as Exhibit F to Request for Judicial Notice.)  An annex to the Bar Date Order also contains the exception.  (Notice of Deadlines § 2(k), Annex I to Bar Date Order (Exhibit F to Defendant’s Request for Judicial Notice).)

 

·         Since the Bar Date Order expressly exempts “present or former” employees whose claims are based on payment of compensation, including “medical benefits,” Defendant’s burden includes establishing that Plaintiff does not fall into this exemption.  No evidence or argument suggests that Plaintiff is not a present or former employee. Defendant actually acknowledges the opposite. (Moving P&A at 1:7-9.)  In addition, Plaintiff’s CMC Statements reference “termination” and “loss of medical coverage,” implying that his claim arises from employment. (See Plaintiff’s CMC Statement, September 20, 2011, ¶ 12(c) at p.3; Plaintiff’s CMC Statement, November 15, 2011, ¶ 12(c) at p.4.)  Thus, Defendant fails to meet its moving burden of establishing that the Bar Date Order necessarily bars Plaintiff from asserting a claim. 

 

·         Notwithstanding the above, the Bar Date Order does not clearly bar the present civil action.  The Order specifies that the failure to file a Proof of Claim will bar the claimant from “asserting such claim,” voting on any plan of reorganization and participating in any distribution in the Chapter 11 case.  (Bar Date Order at 6 (Paragraph (j)(11), Exhibit F to Defendant’s Request for Judicial Notice.)  Annex I to the Order reiterates the exemption.  (See Notice of Deadlines § 2(k), Annex I to Bar Date Order (Exhibit F to Defendant’s Request for Judicial Notice.)  Defendant argues that the bar against “asserting such claim” means that Plaintiff may no longer maintain the present civil action in Superior Court. Defendant cites no authority for that interpretation.

 

·         Generally, the failure to submit a Proof of Claim bars the claimant from participating in the Chapter 11 case.  The phrase “asserting such claim” is ambiguous. Nothing in the Order implies that “asserting such claim” means prosecuting a state civil action. In the context of the Bar Date Order, it appears to be limited to conduct within the bankruptcy case (e.g., voting on the reorganization, receiving distributions, filing a claim). A confirmation of reorganization plan discharges the petitioner’s debts. (11 U.S.C. § 1141, subd. (d)(1)(A).)

 

·         A Chapter 11 petition could be dismissed before any reorganization is proposed or approved. In that case, no debts are discharged. Defendant having cited no authority to the contrary, the Court finds it unreasonable that the mere failure to file a Proof of Claim by the Bar Date is the equivalent of a discharge under Chapter 11, calling for the automatic dismissal of a state civil action that is stayed.

 

·         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.

 

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9:00

2

CIV 515674       CHRISTINA ABELLERA, ET AL. VS. STEVE HUNG CHIU, ET

                   AL.

 

 

CHRISTINA ABELLERA                    MARK W. SWANSON

STEVE HUNG CHIU                       G. KELLEY REID

 

 

MOTION TO COMPEL DEFENDANT STEVE HUNG CHIU TO RESPOND TO EBAY'S SPECIAL INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS BY EBAY, INC.

 

 

·         This matter has been withdrawn from the calendar pursuant to the Court’s Order dated August 20, 2014.

 

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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 REOPEN FACT DISCOVERY REGARDING AMENDED CROSS-COMPLAINT BY NADIM SHEHAYED

 

 

·         This motion is moot.  Presiding Judge Robert D Foiles granted defendant Nadim Shehayed’s Motion to Continue the Trial Date to April 6, 2015.  The minute order states "discovery deadlines shall correspond to the new trial date". 

 

 

MOTION FOR SUMMARY ADJUDICATION OF ISSUES BY NADIM SHEHAYED AND

NADINE ABOU-HAIDAR

 

 

·         Although the notice of this motion was insufficient, Plaintiff has waived the inadequate notice by filing a Response to the motion addressing its merits.  Carlton v. Quint (2000) 77 Cal.App.4th 690, 698.

 

·         Defendants failed to meet their burden of showing that the 4-year statute of limitations for a breach of contract claim does not apply to Plaintiff’s claims regarding inappropriate payments, charges and reimbursements.  Defendants failed to provide any undisputed material facts in regards to this issue.

 

·         Summary Adjudication as to the 8th Affirmative Defense of the Statute of Limitations is denied.  Defendants have failed to meet their burden of showing that the Complaint was filed more than 4 years from the date IAR knew of the injury and suspected or reasonably should have suspected that Shehayed had caused them injury.

 

·         Summary Adjudication as to the 11th Affirmative Defense of Latches is denied.  Defendants have failed to meet their burden of unreasonable delay, acquiescence in the act about which Plaintiff complains or prejudice to the defendants resulting from the delay.

 

 

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

 

 

·         Plaintiff IAR Systems Software, Inc.'s unopposed Motion for Leave to Conduct Discovery of Defendant Nadim Shehayed's Financial Condition Pursuant to CC § 3295(c) is granted.

 

·         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.

 

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9:00

4

CIV 520157       DONALD CHARLES VASSALLO VS. D & M TOWING, INC., ET

                   AL.

 

 

DONALD CHARLES VASSALLO               DREW F. TETI

D & M TOWING, INC.                    JAMES H. HARTNETT

 

 

MOTION FOR PROTECTIVE ORDER, APPOINTMENT OF DISCOVERY REFEREE AND REQUEST FOR MONETARY SANCTIONS AGAINST PLAINTIFF’S COUNSEL BY D & M TOWING, INC., MARC ROCHETTE AND NICOLE ROCHETTE

 

 

·         In Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1434, the Court states:

 

o   “It is a general precept to the Civil Discovery Act of 1986 [Citation] that civil discovery be essentially self-executing. [Citation] The Discovery Act requires that, prior to the initiation of a motion to compel, the moving party declares that he or she has made a serious attempt to obtain ‘an informal resolution of each issue.’  [Citation]  This rule is designed ‘to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order…’ [Citation]  This, in turn, will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes. [Citation]”

 

·         The Motion for Appointment of a Discovery Referee is DENIED because Plaintiff does not have the ability to pay for such a Discovery Referee nor has Plaintiff’s counsel done such improper conduct to warrant imposition of an unlimited monetary sanction in the form of Discovery Referee fees.  Lastly, from the time defense counsel filed their Substitution of Attorney until this motion was filed was approximately 17 days, and even though they might have been involved longer, the required exceptional circumstances have not been shown.

 

·         Accordingly, the request that the deposition of D&M Towing, Inc.’s Person Most Qualified be postponed until after appointment of a Discovery Referee is moot and thus DENIED.

 

·         Defendants’ request that the Court issue an order that Ms. Rochette does not have to bring documents to her deposition that are not within her possession, custody or control and were not set forth in the original Notice of Deposition is DENIED.

 

·         Defendants’ Request for Monetary Sanctions is DENIED.

 

·         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.

 

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9:00

5

CIV 524190       DAN STRAMBI VS. BURLINGAME POLICE DEPARTMENT

 

 

DAN STRAMBI                           P. TERRY ANDERLINI

THE CITY OF BURLINGAME                KATHLEEN A. KANE

 

 

DEMURRER TO SECOnd Amended COMPLAINT of STRAMBI BY THE CITY OF BURLINGAME

 

 

·         This matter is moot.  Plaintiff will file a Third Amended Complaint by Friday, August 22, 2014.

 

_____________________________________________________________________

9:00

6

CIV 527283       JOE GALLIGAN VS. MARK CHURCH

 

 

JOE GALLIGAN                          DENNIS ZELL

MARK CHURCH                           GLENN M. LEVY

 

 

MOTION FOR ATTORNEYS' FEES AND COSTS BY JUAN RAIGOZA

 

 

·         This matter should be heard in Department 13, before the Honorable Judge Lisa A. Novak, who ruled on the underlying motion.  Moving party is directed to contact Department 13 at (650) 261-5113 to arrange for a hearing date.

 

_____________________________________________________________________

9:00

7

CIV 528242       ANA RUBIO, ET AL. VS. EQR-WOODLAND PARK B, LP, ET AL.

 

 

ANA RUBIO                             KENNETH GREENSTEIN

EQR-WOODLAND PARK B, LP               JACK C. NICK

 

 

MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ COMPLAINT BY EQR-WOODLAND PARK B, LP, ERP OPERATING LIMITED PARTNERSHIP AND EQUITY RESIDENTIAL MANAGEMENT, LLC

 

 

·         Defendants EQR Woodland Park B, LP; ERP Operating Limited Partnership and Equity Residential Management, LLC’s Motion to Strike is GRANTED with leave to amend.  Where the defendant is a corporate entity, the Complaint must demonstrate that the oppression, fraud or malice was known and consciously disregarded, ratified, authorized or committed by an officer, director or managing agent of the corporation.  Civil Code § 3294(b); Scannell v. Riverside County (1984) 152 Cal.App.3d 596, 614.

 

·         Plaintiffs’ Complaint states only the legal conclusion that each defendant and their employees or agents acted as an authorized agent, employee or representative of each other defendant. It also alleges that each act of each defendant was committed within the scope of the agency, employment and or each act was ratified by agents or employees on behalf of each of the other defendants.  But the Complaint names no individuals, identifies no specific conduct and no specific ratification. It does not allege by whom or when these acts are alleged to have been committed.  The Kiseskey v. Carpenters Trust for Southern California (1983) 144 Cal.App.3d 222 case in discussing punitive damages found that conclusional words [such as acting with the permission and consent of the other defendants] coupled with factual allegations would support a claim for punitive damages.  Plaintiffs’ allegations contain only the conclusional words [each act was ratified by agents or employees on behalf of each of the other defendants] but does not couple them with factual allegations.

 

·         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. 

 

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9:00

8

CLJ 526169       MIDLAND FUNDING LLC VS. KARIM ZARRINNAM

 

 

MIDLAND FUNDING LLC                   SARAH A. ROBINSON-MCELROY

KARIM ZARRINNAM                       PRO/PER

 

 

MOTION FOR ORDER ESTABLISHING ADMISSIONS BY MIDLAND FUNDING LLC

 

 

·         Both parties have been ordered to appear for the hearing.

 

·         Plaintiff Midland Funding LLC’s Motion to Deem Matters Admitted is GRANTED pursuant to CCP § 2033.280.  The Request for Admissions [Set No. 1] was served on Defendant and no responses have ever been filed.  All those matters contained in Plaintiff’s Request for Admissions [Set No.1], dated March 21, 2014, are hereby deemed admitted.  Defendant shall also pay sanctions in the amount of $90.00 pursuant to CCP § 2033.280.

 

·         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. 

 

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POSTED:  3:00 PM

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