March 29, 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 john l. grandsaert

Department 11

 

400 County Center, Redwood City

Courtroom 2D

 

Monday, March 27, 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-02480     Charles J. Katz vs. MICHAEL VALENZUELA

 

 

Charles J. Katz                        Pro Se

MICHAEL VALENZUELA

 

 

Petition to confirm arbitration award

TENTATIVE RULING:

 

The Petition of Charles J. Katz (“Petitioner”) to Confirm Attorney-Client Fee Arbitration Award is CONTINUED to April 27, 2017 at 9:00 a.m. in the Law and Motion Department.

 

The proof of service filed by Petitioner shows that Respondent Michael Valenzuela (“Respondent”) was served with the notice of hearing by mail.  However, no proof of service has been filed showing that Respondent was also served with the Petition.  Moreover, since it appears that there is no agreement as to the manner of service and Respondent has not appeared in this action, Respondent must be served in the manner provided by law for service of summons in an action.  (See Bus. and Prof. Code § 6203(b); Code of Civ. Proc. § 1290.4(b)(1).) 

 

At least three court days prior to the hearing, Petitioner is to file a proof of service establishing that Respondent was properly served with Notice of the hearing and the Petition to Confirm Arbitration Award. 

 

     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

16-CIV-02698     MELISSA JEAN HANSELL vs. ERIC CARL DEBODE, et al.

 

 

MELISSA JEAN hansell                    KATE L. chatfield

ERIC CARL DEBODE                       Richard j. vaznaugh

 

 

MOTION TO FILE SECOND AMENDED COMPLAINT

TENTATIVE RULING:

 

 

Notwithstanding Plaintiff's failure to timely file her motion (Code Civ. Proc. §§ 1005, subd. (b), 1013, subd. (c)) and her failure to follow the procedures set forth in California Rules of Court, Rule 3.1324, these procedural issues did not prejudice Defendants, and Plaintiff's Motion for Leave to Amend to file the Second Amended Complaint is GRANTED.  (See Bettencourt v. Hennessy Industries, Inc. (2012) 205 Cal.App.4th 1103, 1111 (liberality in granting amendment).) To the extent these new causes of action may be barred by the statute of limitations or other grounds, Defendants may "test [their] legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings."  (California Casualty Gen. Ins. Co. v. Sup. Ct. (1985) 173 Cal.App.3d 274, 280–81, disapproved on other grounds by Kransco v. American Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390.) Within five days of the Court’s ruling on this Plaintiff's Motion to Amend, at the time of the hearing on this Motion, Plaintiff shall file and serve the proposed Second Amended 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

Lines: 3 & 4

16-CLJ-00516     LILLIAN MARDIKIAN vs. WAWANESA GENERAL INSURANCE

                   COMPANY

 

 

LILLIAN MARDIKIAN                      GEORGE E. MARDIKIA

WAWANESA GENERAL INSURANCE COMPANY      JOHN D. EDSON

 

 

3. NOTICE OF INTENT TO MOVE TO SET ASIDE AND VACATE AND ENTER ANOTHER AND DIFFERENT JUDGMENT

 

The Motion to Set Aside the Judgment and Motion to Strike Costs are CONTINUED to April 13, 2016 in the Law and Motion Department to be heard by the Honorable Richard Dubois. 

 

 

4. NOTICE OF INTENT TO MOVE TO SET ASIDE AND VACATE AND ENTER ANOTHER AND DIFFERENT JUDGMENT

TENTATIVE RULING:

 

The Motion to Set Aside the Judgment and Motion to Strike Costs are CONTINUED to April 13, 2016 in the Law and Motion Department to be heard by the Honorable Richard Dubois. 

 



9:00

Line: 5

CIV523248     JIM BAKA, ET AL. VS. CITY OF BELMONT

 

 

JIM baka                               DAVID M. king

CITY OF BELMONT                        HOLLY O. WHATLEY

 

 

motion to bifurcate or Phase the Trial

TENTATIVE RULING:

 

     Defendant’s Motion to Bifurcate Issues at Trial was denied by Judge Ayoob on July 8, 2016 on the Law and Motion calendar, without prejudice to a renewal of the motion as a Motion in Limine before the trial judge. 

    

     The Parties are ORDERED to appear at trial as scheduled.  The instant motion may be renewed as a pretrial motion before the assigned trial judge.

 

     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

CIV535761     ALAN D. BILLER & associates, INC. VS FIDUCIARY RESEARCH

                  AND CONSULTING, LLC, ET AL.

 

 

ALAN D. BILLER & ASSOCIATES, INC        RANDALL M. WIDMANN

FIDUCIARY RESEARCH AND CONSULTING, LLC MARIE ELIZABETH JONAS

 

 

MOTION FROM RELIEF FROM WAIVER OF OBJECTIONS

TENTATIVE RULING:

 

     Plaintiff ALAN D. BILLER & ASSOCIATES, INC. (“ABA”)’s unopposed Motion for Relief from Waiver of Objections is MOOT in light of the Court’s March 13, 2017 Order issued on Defendant FIDUCIARY RESEARCH AND CONSULTING, LLC’S Motion to Compel.  The March 13 Order expressly states, “A. Plaintiff’s objections based on the attorney client, spousal communications and attorney work product privileges are hereby preserved;”. 

 

          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: 7

CIV537343     CANDY ZUNIGA VS. HENRY D. HAMILTON

 

 

CANDY ZUNIGA                           HEIDI KOHN HUGO

HENRY D. HAMILTON                      JENNIFER STILL

 

 

MOTION FOR SUMMARY JUDGMENT

TENTATIVE RULING:

 

Defendant Henry D. Hamilton’s Motion for Summary Judgment is GRANTED.  Code Civ. Proc. 340.5 (professional negligence action must be commenced “three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first”).  Plaintiff’s malpractice claim arose, at the latest, on Jan. 23, 2015, after Plaintiff received definitive confirmation she was pregnant, and discussed the matter with Defendant, who asked her why she had not returned for the follow-up X-ray three months after the tubal ligation.  Christ v. Lipsitz (1979) 99 Cal.App.3d 894, 898 (“The statute begins to run when the plaintiff has notice of circumstances sufficient to put a reasonable person on inquiry, or has the opportunity to obtain knowledge from sources open to his investigation”), citing Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 101. 

 

Many of the relevant facts here are undisputed.  Plaintiff believed the procedure at issue (the tubal ligation) was permanent and irreversible (Def. UMF 3); Plaintiff contends she was never told there was a chance the procedure would not work (Def. UMF 4); Plaintiff believed that once she had the procedure, there was “no chance whatsoever” she could become pregnant (Def. UMF 6); when Plaintiff learned she was pregnant on Jan. 21, 2015, she was “shocked” (Def. UMF 7); her pregnancy was confirmed by Jan. 23, 2015 (Def. UMF 7-10); when Plaintiff spoke with Dr. Hamilton on Jan. 23, 2015 and asked him “what went wrong?”, he asked her why she had not returned three months after the procedure for the required follow-up X-ray (hysterosalpingogram), and she was shocked by the question, because she didn’t know about any requirement to return for a follow-up X-ray.  (Tr. at 132:18-134:17.)  Per Christ v. Lipsitz, supra, these undisputed facts establish that by Jan. 23, 2015, Plaintiff was on inquiry notice of her negligence claim, which triggered the statute of limitations. 

 

In addition to inquiry notice, the evidence demonstrates Plaintiff actually suspected wrongdoing (negligence) not later than Jan. 23, 2015.  Contrary to Plaintiff’s contention, Fox v. Ethicon (2005) 35 Cal.4th 797 did not change the rule that the statute begins to run upon Plaintiff’s suspicion of wrongdoing.  (See Knowles v. Sup. Ct. (2004) 118 Cal.App.4th 1290, 1300 (a plaintiff “discovers” the cause of action when he/she suspects, or should suspect, that defendant did something wrong); Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397-98 (same); Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1111.)  Here, Plaintiff testified that upon learning she was pregnant, she immediately went to see Dr. Hamilton to ask him “what went wrong?” (Dep. Tr. 56:8-18); she “knew one way or the other that something had gone wrong” (Dep. Tr. 53:20-55:10; 56:22-53:1); she thought “Dr. Hamilton had made a mistake or done something wrong” (Tr. 60:3-18); she believed “that he’d done something incorrectly” (Tr. 60:10-12); she believed “he hadn’t done the procedure right” (Tr. 60:16-17); see also Tr. 54-55 (“I did think Dr. Hamilton did mess up.”).  Her suspicions of wrongdoing were confirmed on Jan. 23, 2015 when Dr. Hamilton asked her why she had not returned for the follow-up X-ray, and she responded she didn’t know she was supposed to come back for any follow-up procedure.  (Tr. at 132:18-134:17.)  She later sued Defendant on that very factual basis.  FAC, Parag. 21 (alleging Plaintiff was “not scheduled for a follow-up x-ray… nor [] advised that such a step was recommended or necessary.”  Plaintiff’s reaction on Jan. 23, 2015 is consistent with how a reasonable person in her situation would have reacted—she suspected Defendant did something wrong.  Plaintiff was not only on inquiry notice at that point in time, she in fact did suspect negligence, and thus was required to file suit within one year. 

 

Plaintiff’s reliance on Brown v. Bleiberg (1982) 32 Cal.3d 426 to support her tolling argument is misplaced.  Brown involved an on-going relationship between a patient and a physician in which, due to plaintiff’s reliance on repeated misrepresentations over time by the doctor, plaintiff didn’t discover the doctor’s negligence until later.  Here, in contrast, there is no evidence of any continuing relationship between the parties after their Jan. 23, 2015 meeting, apparently their last meeting, at which time Plaintiff already suspected wrongdoing, nor evidence of any continuing misrepresentations.  Their only subsequent communications were a series of letters from Plaintiff’s counsel to Defendant, stating Plaintiff intended to sue him.  This is not a case of belated discovery due to a physician’s reassurances or misrepresentations in the context of an on-going physician-patient relationship. 

 

While this ruling does not hinge on Plaintiff’s deposition testimony, the Court is not persuaded to disregard Plaintiff’s deposition testimony on grounds that defense counsel allegedly “badgered” and/or put words into her mouth.  The transcript does not suggest any such wrongdoing.  Plaintiff was represented by counsel at the deposition, was told she could take breaks, consult with her attorney, etc.  And after the deposition, Plaintiff received the transcript and made some minor corrections, but did not change any of the testimony at issue.  Nor does Plaintiff’s Opposition object to any of the proffered testimony. 

 

Defendant’s Objections to Plaintiff’s Evidence are ruled upon as follows:

 

  • Zuniga Decl., excerpts from Paras. 5 and 7.  OVERRULED.  Arguably, the statements do not directly contradict the deposition testimony.  The Court has considered the declaration and given it the weight the Court deems appropriate. 
  • Dr. Ahsan’s Decl.  OVERRULED.  The relevance standard is low.  The Court has considered the declaration and given it the weight the Court deems appropriate. 

     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.

 



9:00

Line: 8

CIV538897     DBP INVESTMENTS VS. KING PLAZA CENTER

 

 

DBP INVESTMENTS                        STEVEN B. PISER

KING PLAZA CENTER, LLC                  MADOLYN D. ORR

 

 

 

MOTION TO COMPEL COMPLIANCE WITH RESPONSE TO INSPECTION DEMAND AND SANCTIONS AGAINST DEFENDANT, BUA-QUACH

TENTATIVE RULING:

 

The Motion to Compel Compliance with Defendant’s Response to Plaintiff’s Inspection Demand is DENIED.  Although defendant’s initial discovery response indicated that he would produce all “available and responsive” documents, he has now served an amended response indicating that he has no responsive documents in his custody or control. 

 

To the extent defendant is now making a representation of his inability to comply with the inspection demand, his amended response does not fully comply with Code Civ. Proc. Section 2031.230.  Defendant shall provide a further response, within 10 days, which provides all of the information required by Section 2031.230.

 

Plaintiff’s Request for Sanctions is GRANTED.  Defendant shall pay plaintiff $386.25 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: 9

CLJ534451     IN RE: $1,324.00

 

 

PEOPLE OF THE STATE OF CALIFORNIA       CRYSTAL T. CHAU

WILLIAM ESCOBAR                        PRO/PER

 

 

MOTION FOR ODER THAT REQUESTS FOR ADMISSIONS BE DEEMED ADMITTED AND FOR MONETARY SANCTIONS

TENTATIVE RULING:

 

      The Motion to Deem Facts Admitted is GRANTED.  The genuineness of any documents and the truth of any matters specified in the requests for admission are deemed admitted. 

 

   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

 

© 2017 Superior Court of San Mateo County