April 18, 2014
Law & Motions Tentative Rulings
  • Law and Motion Department Tentative Ruling Line:  (650) 363-1882
  • 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 LISA A. NOVAK

Department 13

 

400 County Center, Redwood City

Courtroom 2C

 

APRIL 14, 2014

 

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

1.      YOU MUST CALL (650) 363-1882 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.  

 

    Case                  Title / Nature of Case

9:00

1

CIV 500745    MICHON COLEMAN  VS.

              SAN MATEO COUNTY ASSOCIATIONS OF REALTORS

 

MICHON COLEMAN                             FRANCISCO X. MARQUEZ

SAN MATEO COUNTY ASSOCIATIONS OF REALTORS  JOSHUA J. CLIFFE

 

 

MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY MOTION FOR SUMMARY ADJUDICATION BY SAN MATEO COUNTY ASSOCIATIONS OF REALTORS

 

·         Defendant’s motion for summary judgment, or in the alternative summary adjudication is GRANTED. 

 

·         Plaintiff filed two separate matters alleging wrongdoing against Defendant,  CIV 500745 and CIV 508321.  The latter matter alleges a single cause of action for Waiting Time Penalties under the Labor Code.  This motion relates solely to that claim which is memorialized in her First Amended Complaint.  The two cases have previously been consolidated.

 

·         Defendant’s request for judicial notice is GRANTED.

 

·         The Court admonishes Defendant for not submitting a proposed order ruling on the objections, as required by CRC 3.1354( c)  Failure to do so is a basis to overrule them in their entirety.  However, in its discretion the court elects has ruled on the objections to Plaintiff’s Separate Statement of Undisputed Facts as follows:

 

·         Objection No. 1 SUSTAINED in part as to Plaintiff’s statement that she was “wrongfully discharged” and “SAMCAR deducted the days that I was supposed to be on vacation from my bank of accrued vacation hours.  SAMCAR owes me more than 200 hours of accrued vacation hours”  on the grounds of speculation and lack of foundation. 

 

·         SUSTAINED as to Objection No. 4 as lacks foundation.  

 

·         SUSTAINED as to Objection No. 5 as hearsay.

 

·         OVERRULED as to Objection Nos. 2 and 3.

 

·         Defendant shall provide the Court with a proposed order

  that is code compliant.

 

·         Defendant’s motion for summary judgment is GRANTED.  Plaintiff has failed to establish by admissible evidence that a triable issue of material fact exists as it relates to the issue of whether Defendant paid her for all of her accrued vacation hours within the statutory time period.

 

·         Defendant asserts in UMF 6 “On September 7, 2011 Plaintiff received a check paying her for all accrued vacation time owed to her.”  This is supported by declarations of Blanton, Miramontes and Cliffe. Plaintiff disputes this in her response, but does not offer any admissible evidence in contradiction.

 

·         She states in paragraph 2 of her declaration that she “…checked work-related e-mails and phone messages periodically throughout the day and responded to them as needed on days that she was supposed to be on vacation…” This does not rebut UMF No. 6, for nothing in this statement of Plaintiff indicates that she was required to do so; as such, this does not create a triable issue of fact.   

 

·         She also states, “SAMCAR deducted the days I was supposed to be on vacation from my bank of accrued vacation hours.  SAMCAR owes me more than 200 hours of accrued vacation hours.”  The Court has sustained Defendant’s objection as calling for speculation and lack of foundation.

 

·         What is left after sustaining Defendant’s objections is a very brief Separate Statement of Plaintiff which does not dispute the UMF asserted by Defendant, and where she does, she does not do so successfully due to a lack of admissible evidence.    

 

  • If the tentative ruling is uncontested, it shall become the order of the Court. The moving party 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

2

CIV 513394    JENNIFER MORAN VS. D&J PRECISION MACHINING, INC., ET AL.

 

 

JENNIFER MORAN                        PAUL E. RICE

D&J PRECISION MACHINING, INC.

 

 

MOTION FOR SUMMARY JUDGMENT AS TO COMPLAINT of MORAN FILED BY WEST COAST SURGICAL, LLC, DANIEL BASS

 

·         Defendant West Coast and Daniel Bass’ Objections to Plaintiff’s Additional Material Facts, Nos. 1-9 are sustained. No. 1 is an improper legal conclusion and is unsupported as to defendant West Coast. No. 2 is based on unauthenticated documents and lacks foundation. No. 3 is based on unauthenticated documents and lacks foundation. No. 4 lacks foundation, states a legal conclusion. No. 5 lacks foundation. No. 6 states a legal conclusion and is argument. No. 7 purports to state a legal conclusion, lacks foundation and is argument. No. 8 purports to state a legal conclusion, lacks foundation and is argument. No. 9 states a legal conclusion.

 

  • Plaintiff Moran’s Objections to the declaration of Patrick Ryan, in particular to Exhibit A attached to his declaration is OVERRULED. The declaration and exhibit lacks specificity but this goes to the weight not the admissibility of the evidence.  The declaration of Plaintiff’s expert, Garrett Schwartz, have created a triable issue of material fact as to whether the equipment purchased by defendant was purchased at fair market value.

 

  • Defendant West Coast Surgical, LLC’s Motion for Summary Judgment/Summary Adjudication is denied.  Defendant has not met its burden of establishing that the equipment they purchased from the debtor was purchased at fair market value.

 

  • Defendant Bass’ Motion for Summary Judgment is GRANTED.

 

  • Defendant has met his initial burden pursuant to CCP 437c(o)(2) of demonstrating that one or more elements of the cause of action cannot be established or that he has a complete defense to it. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850. Defendant has demonstrated that he was not a transferee or subsequent transferee of any property, nor that he participated in a conspiracy to violate the Uniform Fraudulent Transfer Act.

 

  • Plaintiff has not met her burden of establishing a triable issue of material fact to support her claim against the individual defendant.  Plaintiff has not pled or established any valid alter ego or conspiracy claim against Mr. Bass. Plaintiff has not established any legal basis for her argument that Mr. Kachuck’s knowledge as operations manager is imputed to the individual members [Fishman and Bass] of the LLC. The law is that the agency relationship is between the manager and the LLC, not between the manager and the individual members. See Corporations Code 17703.01(b)(2). Personal liability can only exist against an LLC member when the corporate veil is pierced and alter ego liability is found. Corporations Code 17703.04.

 

MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION OF ISSUES BY AXCESS SURGICAL INNOVATIONS, LLC AGAINST JENNIFER MORAN

 

·         Plaintiff Moran’s Objections to Defendant Axcess Surgical Innovations, LLC’s material facts Nos. 5 and 13 are overruled.

 

  • Plaintiff Moran’s Objections to the declaration of Patrick Ryan, in particular to Exhibit A attached to his declaration are OVERRULED. The declaration and exhibit lacks specificity, this deficiency goes to the weight not admissibility of the evidence.  However, the declaration of Plaintiff’s expert, Garrett Schwartz coupled with evidence suggesting  that Ryan was not truly an objective third party appraiser, create a triable issue of material fact as to whether the equipment purchased by defendant was purchased at fair market value.

 

  • Defendant Axcess Surgical Innovations, LLC’s Motion for Summary Judgment/Summary Adjudication is denied.

 

  • Defendant has not met its burden of establishing that the equipment they purchased from the debtor was purchased at fair market value.

 

  • Plaintiff has also created triable issues of material fact as to Mr. Kachuck’s status as an owner/agents/officer of Defendant Axcess and as to the knowledge Axcess had of the underlying lawsuit and the conspiracy claims.  Plaintiff  asserts that Kevin Kachuck is an owner, agent and officer of Axcess and that his acts bind Axcess and the knowledge he had regarding the lawsuit is imputed to Axcess.  In support of this contention Plaintiff relies upon an Application for Sellers Permit by the LLC which was submitted to the State Board of Equalization.  That  application contained a certificate that listed Fishman, Bass and Kachuck as corporate officers, LLC managers, partners, or owners. Because he is indisputably an agent of Axcess, this alone is sufficient for his knowledge to be imputed to Axcess.  At a minimum, a triable issue of material fact exists as to whether Axcess had constructive notice of plaintiff’s claim. See E-Fab, Inc. v. Accountants Inc. Services (2007) 153 Cal App 4th 1308.  The evidence of Kachuck’s participation in the ownership/management of Axcess also creates a triable issue of fact as to whether or not Axcess was involved in a conspiracy to hide assets of Kachuk’s previous company, against whom Plaintiff has a judgment.

 

MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION OF ISSUES BY DANIEL FISHMAN AGAINST JENNIFER MORAN

 

·         Defendant Fishman’s Request for Judicial Notice is granted pursuant to Evidence Code 452(d).

 

  • Defendant Fishman’s Objections to Plaintiff’s Evidence are sustained as to objections Nos. 1, 2, 3, 4, 5, 6, 7, 9, and 10. Defendant Fishman’s Objections to Plaintiff’s Evidence are overruled as to objections Nos. 8, 11, 12, 13, 14, 15, 16 and 17.

 

  • Defendant Fishman’s Motion for Summary Judgment is GRANTED.

 

·         Defendant has met his initial burden pursuant to CCP 437c(o)(2) of demonstrating that one or more elements of the cause of action cannot be established or that he has a complete defense to it. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850. Defendant has demonstrated that he was not a transferee or subsequent transferee of any property, nor that he participated in a conspiracy to violate the Uniform Fraudulent Transfer Act.

·         Plaintiff has not met her burden of establishing a triable issue of material fact to support her claim against the individual defendant.  , plaintiff concedes that she has no evidence that Mr. Fishman, as an individual, received any property from D & J [facts 29-32]. Thus, according to Civil Code 3439.08 plaintiff has no valid claim under the UFTA against Mr. Fishman.  Receipt of property is an essential element of plaintiff’s claim. Yaesu Electronics Corp. v. Tamura (1994) 28 Cal App 4th  8, 13. The lack of evidence that he was a transferee of any property is a sufficient basis for a ruling on summary judgment in his favor. Leslie G. V. Perry & Associates (1996) 43 Cal App 4th 472, 482.

 

  • Plaintiff has not pled or established any valid alter ego or conspiracy claim against Mr. Fishman. Plaintiff has not established any legal basis for her argument that Mr. Kachuck’s knowledge as operations manager is imputed to the individual members [Fishman and Bass] of the LLC. The law is that the agency relationship is between the manager and the LLC, not between the manager and the individual members. See Corporations Code 17703.01(b)(2). Personal liability can only exist against an LLC member when the corporate veil is pierced and alter ego liability is found. Corporations Code 17703.04.

 

 

  • If the tentative ruling is uncontested, it shall become the order of the Court. The moving party 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

3

CIV 525382    GILBERTO BECERRA VS. THE BANK OF NEW YORK MELLON

 

 

GILBERTO BECERRA                      NICK PACHECO

THE BANK OF NEW YORK MELLON           AARON R. MARIENTHAL

 

 

DEMURRER TO 1st Amended COMPLAINT of BECERRA BY THE BANK OF NEW YORK MELLON, ALTERNATIVE LOAN TRUST 2007-HY6, BANK OF AMERICA, N.A., MORTGAGE PASS-THROUGH CERTIFICATES, RECONTRUST COMPANY, N.A.

 

 

·         Moot.  Notice of Settlement filed March 06, 2014.

 

_____________________________________________________________________


9:00

4

CIV 526538    LUIS N. ZAVALA VS. US BANK, ET AL.

 

 

LUIS N. ZAVALA                        COLLEEN B. KELLEY

US BANK                               JASON M. RICHARDSON

 

 

DEMURRER TO COMPLAINT of ZAVALA BY LENDER PROCESSING SERVICES, INC.

 

 

·         Continued until May 12, 2014 at 9:00 a.m by stipulation and order. 

 

 

_____________________________________________________________________

 

 

 

 

 


POSTED:  3:00 PM

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