April 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 susan irene etezadi

Department 18

 

400 County Center, Redwood City

Courtroom 2M

 

Monday, April 25, 2016

 

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 212329       GARY PEAK FORK, SERIES A, LLC VS. NORSE CORPORATION

 

 

GRAY PEAK FORK, SERIES A, LLC         DAPHNE C LIN

NORSE CORPORATION                     MICKIE LEE

 

 

MOTION FOR ATTORNEYS' FEES BY GRAY PEAK FORK, SERIES A, LLC

 

Plaintiff Gray Peak Fork, Series A, LLC has filed a motion for attorney’s fees following the trial of this matter. Because the trial was held before the Hon. Joseph Scott in Department 25, Plaintiff’s request for attorney’s fees is properly heard in that department. Plaintiff is directed to contact Department 25 at (650) 261-5125 to schedule a special set hearing for Judge Scott to consider their motion for attorney’s fees.

 

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, 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 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, for the Court’s signature.

 

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9:00

2

CIV 527542       LYNNE MATHENY VS. EQUITY RESIDENTIAL PROPERTIES

                   MANAGEMENT CORP., ET AL.

 

 

LYNNE MATHENY                         TODD P. EMANUEL

EQUITY RESIDENTIAL MANAGEMENT CORP.   JACK C. NICK

 

 

APPLICATION TO APPEAR AS COUNSEL PRO HAC VICE BY WILLIAM B. THOMAS

 

 William B. Thomas’ Application to Appear as Counsel Pro Hac Vice for intervenor Voyager Indemnity Insurance Company in this matter is GRANTED pursuant to California Rules of Court, Rule 9.40. Counsel has paid the $50 fee to the California State Bar as required by Rule 9.40(e) and the $500 fee now required by the San Mateo County Superior Court pursuant to Govt. Code 70617. He has met all of the other requirements of CRC 9.40, which are the only requirements to be eligible for admission pro hac vice. 

 

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, 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 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, for the Court’s signature.

 

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9:00

3

CIV 532680       JOSEPH LaCHAPELLE, ET AL. VS. DONG KWAN KIM, ET AL.

 

 

JOSEPH LaCHAPELLE                        MARK A. SERLIN

DONG KWAN KIM

 

 

MOTION FOR AN ASSIGNMENT ORDER BY JOSEPH LACHAPELLE, ET AL.

 

The motion is DENIED.  CCP §708.510(a) permits the court to order the assignment of a right to payment due or to become due.  Here, judgment creditor has not offered evidence sufficient to establish that judgment debtor has the right to any payment.  The Serlin declaration states only that discovery responses acknowledge he owns shares in ZeroDesktop, Inc.

 

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, 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 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, for the Court’s signature.

 

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9:00

4

CIV 535624       DIANA SOSA, ET AL. VS. BENSON HONG

 

 

DIANA SOSA                            MARK HOOSHMAND

BENSON HONG                           STEPHEN B. HEATH

 

 

DEMURRER TO 1st Amended CROSS-COMPLAINT of HONG BY AMCO INSURANCE COMPANY

 

The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND. Cross-defendant AMCO is misjoined, because the claims against AMCO arise from facts and events that are distinct from those that give rise to Hong’s cross-claims against Sosa and Cabello. The claims against AMCO derive from an alleged insurance agreement; the claims against Sosa and Cabello derive from a lease between them and Hong.

 

The dicta relied upon by Hong does not defeat the demurrer. Hong relies on dicta stating that demurrer for misjoinder is permissible only on the showing of “prejudice suffered or some interests affected by the misjoinder” (Anaya v. Superior Court (1984) 160 Cal.App.3d 228, 231, fn. 1). He ignores, however, the rest of the dicta, which states, “In practical effect this means that such a demurrer can be successfully used only by the persons improperly joined. A proper defendant is seldom injured by the joinder of unnecessary or improper parties, plaintiff or defendant, and his demurrer ought to be overruled.” (Id.) AMCO is the misjoined party. Under the dicta cited by Hong, AMCO’s demurrer for misjoinder is proper.

 

Cross-complainant offers no suggestion of any facts or law that could cure the pleading defect. Leave to amend is not granted.

 

The alternative demurrer to the 1st cause of action lacks merit. Paragraphs 42 and 43 sufficiently allege the legal effect of the insurance agreement. The alternative demurrer to the 2nd cause of action lacks merit. The cases cited in the demurrer (Waller & Love) do not hold that a breach of contract is a required prerequisite to a claim for breach of the implied covenant of good faith. To the contrary, the covenant is implied as a “supplement to the express contractual covenants,” to prevent a contracting party from engaging in conduct that frustrates the other party's rights to the benefits of the agreement.”  (Waller v. Truck Ins. Exch., Inc. (1995) 11 Cal. 4th 1, 36.)  No actual breach of contract is required.

 

 

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, Cross-Defendant AMCO 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, for the Court’s signature.

 

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9:00

5

CLJ 212418       BLACK MOUNTAIN HOLDINGS, LLC VS. THE CADDIS FLY SHOP ET

 

 

BLACK MOUNTAIN HOLDINGS, LLC          TREVOR L. ROSS

THE CADDIS FLY SHOP                   MARC LIBARLE

 

 

MOTION FOR JUDGMENT ON THE PLEADINGS BY BLACK MOUNTAIN HOLDINGS, LLC

 

Plaintiff BLACK MOUNTAIN HOLDINGS, LLC dba BLACK MOUNTAIN PROPERTIES, LLC’s Motion for Judgment on the Pleadings is DENIED WITHOUT PREJUDICE.  Plaintiff’s motion does not include the required Proof of Service.

 

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, 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 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, for the Court’s signature.

 

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9:00

6

CLJ 527873      CREDITORS SPECIALTY SERVICE, INC. VS. MARTIN A. TORRES

 

 

CREDITORS SPECIALTY SERVICE INC.      DAVID BLAKE CHATFIELD

MARTIN A. TORRES

 

 

MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT BY MARTIN A. TORRES

 

Defendant’s Motion to Set Aside Default Judgment is DENIED without prejudice. Moving Party has not submitted a proposed pleading to be filed, as required by CCP § 473.5(b).

 

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, 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 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, for the Court’s signature.

 

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9:01

7

CIV 533939       KENNETH FLOOD VS. ABBOT VASCULAR, INC., ET AL.

 

 

KENNETH FLOOD                         AARON B. MARKOWITZ

ABBOT VASCULAR, INC.                  SCOTT K. DAUSHER

 

 

MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION OF ISSUES BY ABBOT VASCULAR, INC.

 

The Defendant Abbot Vascular Inc.’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication is DENIED as to the first cause of action for discrimination and GRANTED as to the second cause of action for breach of contract and third cause of action for failure to prevent discrimination.

 

As to the first cause of action, the motion is DENIED for the following reasons: CCP § 437c(p)(2) provides that: “(p) For purposes of motions for summary judgment and summary adjudication: … (2) A defendant … has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.”

 

If the defendant meets that initial burden, then courts "identify the issues framed by the pleadings because the court's sole function on a motion for summary judgment is to determine from the submitted evidence whether there is a triable issue as to any material fact.” Zavala v. Arce (1997) 58 Cal. App. 4th 915, 926.

 

In this case, defendant met the burden to show that one or more elements of the cause of action for discrimination cannot be established, specifically the second element that Plaintiff was performing competently in the position he held. The Plaintiff then presented evidence in the form of his declaration, deposition testimony from supervisors and documents, such as demand maintenance forms, to show that there is a triable issue as to whether Plaintiff was performing competently in his position.

 

As for the second cause of action, the motion is GRANTED. In his opposition to the motion, Plaintiff withdrew this cause of action against Defendant.

 

As for the third cause of action, the motion is GRANTED. Plaintiff did not oppose the motion for summary judgment on his cause of action for failure to prevent discrimination. Plaintiff admits that he never complained to anyone at Abbott Vascular or the employment agency about the alleged discrimination at Abbott Vascular. Therefore, Defendant was never on notice that investigation was needed.

 

The Plaintiff’s Objections to Evidence as to nos. 6 (only first half of first sentence, up to “I told Lam that…”), 9 (as to “and also was informed by Perez-Cintron that …” only), 11 (as to “and told me that Flood’s demand maintenance timing would need to improve …” only), 13 (as to “An Operations Supervisor also spoke to me again about the need for Flood to speed up his repair and documentation timing …” only), 15 (as to “discussed the two repairs and …” only), 16 (first sentence only), 17 (first sentence only), 18 (first, second and fourth sentences only), 19 (first sentence only), 21 (as to “Perez-Cintron and I had a discussion about Flood and …” only), 35 (as to first and second sentences only) are SUSTAINED and as to nos. 1, 2, 3, 4, 5, 7, 8, 10, 12, 14, 20, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 36, 37, 38, 39, 40 are OVERRULED. No. 41 is not applicable because no new evidence was submitted with reply papers.

 

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, 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 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, for the Court’s signature.

 

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POSTED:  3:00 PM

 

 

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