In the Superior Court of the State of California In and for the County of San Mateo                               Law and Motion Calendar Judge: Honorable JOSEPH E. BERGERON Department 4   400 County Center, Redwood City Courtroom 2B   June 17, 2013

 

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

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CIV 473469    CENTRAL CONCRETE SUPPLY CO., INC. VS. STEVEN STEFFANI, ET AL.

 

 

CENTRAL CONCRETE SUPPLY CO., INC.               DEK KETCHUM

STEVEN W. STEFFANI

 

 

MOTION TO COMPEL ANSWERS TO DEPOSITION QUESTIONS BY CENTRAL CONCRETE SUPPLY CO., INC.

 

 

·         Please refer to the tentative ruling calendar for Department 25, the Honorable Joseph C. Scott. 

 

 

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CIV 489065   MICHAEL CHANG VS. FARMERS INSURANCE COMPANY, INC., ET AL.

 

 

MICHAEL CHANG                                   GREGG S. GARRISON

FARMERS INSURANCE COMPANY, INC.

 

 

MOTION TO COMPEL DEPOSITIONS OF PLAINTIFF MICHAEL CHANG AND OF NON-PARTY ROXANNE CHANG BY FARMERS INSURANCE EXCHANGE, TRUCK INSURACE EXCHANGE

 

 

·         Defendants’ motion to compel the depositions of Plaintiff Michael Chang and non-party Roxanne Chang is GRANTED.  

 

·         The parties have the option of agreeing prior to this hearing to a date certain between 6/19 and 6/21 or between 6/24 and 6/28 for these depositions or else appearing personally in court with clients.  Absent a date certain for the depositions, court call is not authorized. 

 

·         Such deposition shall take place at a location within 75 miles of Mr. Chang's residence, be limited to 7 hours of deposition time and defendants shall provide a Korean interpreter.  Roxanne Chang shall present herself for deposition at defense counsel's office. 

 

·         Sanctions are awarded in favor of defendants against (1) Michael Chang and his attorneys in the amount of $1,950.00, and (2) against Roxanne Chang in the amount of $500. 

 

·         Moving attorney 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 Joseph E. Bergeron, Department 4. 

 

 

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CIV 504851    TROY MILLER VS. TARGET CORPORATION

 

 

TROY MILLER                                     SCOTT H.Z. SUMNER

TARGET CORPORATION                              GAIL C. TRABISH

 

 

MOTION FOR PHYSICAL EXAMINATION OF PLAINTIFF BY TARGET CORPORATION

 

 

·         Defendant Target Corp.’s motion to compel a second physical independent medical examination is GRANTED pursuant to CCP § 2032.310.  Good cause has been shown.  And Stuff happens. 

 

·         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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CIV 513465    GEOF LANINI VS. A&E UNLIMITED, ET AL.

 

 

GEOF LANINI                                     GARY J. CLIFFORD

A&E UNLIMTED                                    PRO/PER

 

 

MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT BY GEOF LANINI

 

 

·         The Plaintiff Geof Lanini’s unopposed Motion for Leave to File Second Amended Complaint is GRANTED pursuant to CCP §473. 

 

·         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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CIV 513861    CELLTHEON CORPORATION VS. DAVID H. CHEREAU, ET AL.

 

 

CELLTHEON CORPORATION                           PAUL J. SMOOT

DAVID H. CHEREAU                                PRO/PER

 

 

DEMURRER TO CROSS-COMPLAINT of CHEREAU BY CELLTHEON CORPORATION

 

 

·         The DEMURRER TO CROSS-COMPLAINT of CHEREAU BY CELLTHEON CORPORATION is SUSTAINED with leave to amend for both causes of action for intentional interference with prospective business advantage and negligent interference with prospective business advantage. 

 

·         The Cross-Complaint fails to state facts sufficient to constitute a cause of action as required by CCP § 430.10 and CCP § 430.80.  The facts submitted do not satisfy all the elements needed for either intentional or negligent interference with prospective business advantage.  The Cross-Complaint only outlines conclusions and fails to state facts sufficient to constitute a cause of action as required by CCP § 430.10 and CCP § 430.80. 

 

·         Plaintiff 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 Joseph E. Bergeron, Department 4. 

 

 

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CIV 518611    DIRA INVESTMENTS, INC. VS. STEPHEN RIVERA, ET AL.

 

 

DIRA INVESTMENTS, INC.                          MAC E. NEHORAY

STEPHEN RIVERA

 

 

DEMURRER TO 1st Amended COMPLAINT of DIRA INVESTMENTS, INC. BY ROBERTA A. NAVARRO, CARMEL C. NAVARRO

 

·         The Defendants ROBERTA A. NAVARRO and CARMEN C. NAVARRO’s Demurrer to First Amended Complaint is SUSTAINED IN PART and OVERRULED IN PART, as follows:

 

·         The Defendants’ demurrer is OVERRULED on corporate suspension grounds.  A suspended corporation cannot sue, defend, or appeal from an adverse decision.  9 Witkin, Summary of California Law (10th Ed. 2005) § 223; Reed v. Norman (1957) 48 Cal.2d 338, 343.  However, a corporation with suspended powers is not dissolved; on payment of the tax and penalties, the powers may be “revived” or restored.  Witkin, supra at § 225; Rev. Code § 23305; Finch v. Finch (1924) 68 Cal.App.72, 82 [reinstatement of repealed, forfeited, expired, or suspended corporate charter as validating interim acts of corporation].  Corporate revival is retroactive.  Hall v. Citizens Nat. Trust & Savings Bank of Los Angeles (1942) 53 Cal.App.2d 625, 630. 

 

·         According to the California Secretary of State’s website, Plaintiff DIRA INVESTMENTS, INC. is no longer suspended, and its status is listed as “Active.”  Plaintiff’s status is a matter that may be judicially noticed pursuant to Evid. Code § 452. 

 

·         The Defendants’ demurrer is SUSTAINED WITH LEAVE TO AMEND as to the First cause of action for fraud.  The elements of fraud, which give rise to a tort action for deceit, are (1) misrepresentation; (2) knowledge of falsity; (3) intent to defraud; (4) justifiable reliance; and (5) resulting damage.  Nagy v. Nagy (1989) 210 Cal.App.3d 1262, 1268.  A claim for fraud must be alleged with factual specificity.  Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73. 

 

 

MOTION TO STRIKE PORTIONS OF 1ST AMENDED COMPLAINT BY ROBERTA A. NAVARRO, CARMEL C. NAVARRO

 

·         The Defendants’ Motion to Strike is DENIED as to the First cause of action for fraud on corporate suspension grounds, for the same reason as stated above.  The motion is GRANTED WITH LEAVE TO AMEND as to Paragraph 36 and Plaintiff’s prayer for punitive damages.  In order to recover punitive damages, not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim.  G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29.  Finally, the motion is GRANTED WITH LEAVE TO AMEND as to the prayer for attorney’s fees.  Plaintiff fails to allege any basis for recovery of attorney’s fees against demurring Defendants, whether in contract or statute.  Code Civ. Proc. § 1021.  

 

·         An answer shall be filed no later than 30 days following service of the court’s order. 

 

·         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 Joseph E. Bergeron, Department 4. 

 

 

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CIV 520139    AMERICAN EXPRESS BANK VS. ANDREW HILL, ET AL.

 

 

AMERICAN EXPRESS BANK                           LINA M. MICHAEL

ANDREW HILL                                     PRO/PER

 

 

MOTION FOR JUDGMENT ON THE PLEADINGS BY AMERICAN EXPRESS BANK

 

 

·         OFF calendar.  Case settled. 

 

 

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CIV 520156    NORTH HORIZONS PARTNERS, INC. VS. DR. PATRICK SOON-SHIONG, ET AL.

 

 

NORTH HORIZONS PARTNERS, INC.                   STEVEN S. KAUFHOLD

DR. PATRICK SOON-SHIONG

 

 

MOTION TO STRIKE PLAINTIFF'S COMPLAINT FILED BY NANTWORKS, LLC, QI IMAGING, LLC

 

·         The Defendants’ Motion to Strike the entire complaint on the basis that Plaintiff is not a real party in interest is DENIED.  Plaintiff has alleged and demonstrated that it is a proper party.  

 

·         Defendants’ Motion to Strike from the prayer paragraph 2 for the First Cause of Action and paragraph 4 of the Second Cause of Action is GRANTED WITH LEAVE TO AMEND so that Plaintiff can allege facts that support Plaintiff being entitled to attorney’s fees and costs. 

 

·         Defendants’ Motion to Strike from paragraph 33, line 9, the word NantWorks and from paragraph 3 of the prayer on the Second Cause of Action the words “For punitive damages” is DENIED. 

 

 

DEMURRER TO COMPLAINT of NORTH HORIZONS PARTNERS INC BY NANTWORKS, LLC, QI IMAGING, LLC

 

·         Plaintiff’s Request for Judicial Notice is GRANTED because it is a Certificate of Status as to plaintiff being a Canadian corporation. 

 

·         Defendants’ Request for Judicial Notice is GRANTED as to Items A, B and C; and is DENIED as to Items D, E, F and G (document states “The data provided is not a complete or certified record of an entity.”). 

 

·         Defendants’ Demurrer as to the entire complaint is OVERRULED. 

 

·         Defendants’ Demurrer as to the First Cause of Action is OVERRULED. 

 

·         Defendants’ Demurrer as to the Second Cause of action is OVERRULED. 

 

·         Plaintiff’s amended pleading shall be filed and served within 15 days after service of Notice of Entry of Order. 

 

·         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 Joseph E. Bergeron, Department 4. 

 

 

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CLJ 207292    RAYMOND GRINSELL VS. SUE FINNEGAN-DAHLZ, ET AL.

 

 

RAYMOND GRINSELL                                BRENDA CRUZ KEITH

SUE FINNEGAN-DAHLZ                              SARAH ADELAARS

 

 

MOTION FOR SUMMARY JUDGMENT AS TO COMPLAINT (UNLAWFUL DETAINER) of GRINSELL FILED BY RAYMOND GRINSELL

 

 

·         Status of BANKRUPTCY. 

 

 

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CLJ 207856    DISTRESSED HOME SOLUTIONS, LLC VS. PATSY CANDLEY

 

 

DISTRESSED HOME SOLUTIONS, LLC                  MARCIA A. WALLIS

PATSY CANDLEY                                   LARISA G. BOWMAN

 

 

MOTION TO STRIKE AND DEMURRER BY PATSY CANDLEY

 

 

·         MOOT.  1^st Amended Complaint filed. 

 

 

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CLJ 207974    POLYMATHIC PROPERTIES VS. MIRNA GONZALEZ

 

 

POLYMATHIC PROPERTIES                           MIKE HOGAN

MIRNA GONZALEZ                                  SHIRLEY GIBSON

 

 

MOTION TO QUASH SERVICE BY MIRNA GONZALEZ

 

 

·         Defendant’s Motion to Quash Service of Unlawful Detainer Summons is continued to Tuesday, June 25, 2013 at 9:00 A.M. in Department LM. 

 

 

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In the Superior Court of the State of California In and for the County of San Mateo   Special Set Law and Motion Calendar Judge: Honorable JOSEPH C. SCOTT Department 25   400 County Center, Redwood City Courtroom 2M   JUNE 17, 2013

 

IF YOU INTEND TO APPEAR ON ANY CASE ON THIS CALENDAR YOU MUST DO THE FOLLOWING: 3.  YOU MUST CALL (650) 363-4334 BEFORE 4:00 P.M. TO INFORM THE COURT OF YOUR INTENT TO APPEAR. 4.  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 473469    CENTRAL CONCRETE SUPPLY CO., INC. VS. STEVEN W. STEFFANI, ET AL.

 

 

CENTRAL CONCRETE SUPPLY CO., INC.               DEK KETCHUM

MICHAEL BURSAK                                  MICHELE WALLACE/NICHOLAS DAMER

 

 

MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION OF ISSUES BY MICHAEL BURSAK AGAINST CENTRAL CONCRETE SUPPLY CO., INC.

 

·         Defendant MICHAEL BURSAK’s Motion for Summary Adjudication is GRANTED IN PART, and DENIED IN PART, as follows:

 

·         GRANTED as to the Fifteenth cause of action for conversion.  A party must be entitled to immediate possession at the time of conversion.  A mere right of payment, without more, will not suffice.  Plummer v. Day/Eisenberg, LLP (2010) 184 Cal.App.4th 38, 45. 

 

 

·         DENIED as to the Eleventh, Twelfth, and Thirteenth causes of action for fraudulent transfer; Fourteenth cause of action for civil conspiracy; Sixteenth cause of action for an accounting, Seventeenth cause of action for unjust enrichment, and Eighteenth cause of action for constructive trust.  The Court finds, pursuant to Code Civ. Proc. § 437c, that there are a number of triable issues of material fact precluding a grant of summary adjudication:

 

·         There is a triable issue of material fact as to whether a “transfer” occurred, as defined in Civil Code § 3439.01(i).  While Bursak contends that the funds given to him by Shaun Steffani were deposited into an “account for the benefit of his client, Steffani”, Plaintiff’s evidence demonstrates that the funds were not deposited into an attorney trust account, but rather into an account bearing Bursak’s name only.  (Decl. Bursak ¶ 11; Decl. Ketchum ¶¶ 3-6, Exhibits 1-6.) 

 

·         There are also triable issues of material fact as to Bursak’s knowledge of and involvement in the sale of Steffani’s property; his knowledge of and participation in the movement of money between various accounts; and his knowledge of the source of the funds.  (Decl. Bursak ¶¶ 20-23; Decl. Shaun Steffani ¶¶ 3-8; Decl. Ketchum ¶ 7, Exhibit 7.) 

 

·         Bursak contends that the Court’s Order to Aid in Enforcement of Preliminary Injunction on October 4, 2007 did not, on its face, apply to him because he was not Steffani’s attorney.  This is disputed by Plaintiff’s evidence that Bursak was, in fact, Steffani’s attorney.  (Decl. Bursak ¶ 28; Decl. Ketchum 7, Exhibits 7, 10 and 11.)  Even Bursak’s moving papers contain the incongruous statements that he has at all times been acting as Steffani’s attorney, while claiming that the Order did not apply to him as he was not Steffani’s attorney. 

 

·         A triable issue of fact exists as to whether Steffani did, in fact, give directions to Bursak to interplead the funds pursuant to the Court’s Order.  (Decl. Bursak ¶¶ 31-33; Decl. Ketchum ¶¶ 9, 12; Decl. Shaun Steffani, ¶ 10.) 

 

·         The Court OVERRULES Plaintiff’s evidentiary objections Nos. 1-11, and OVERRULES Defendant Bursak’s evidentiary objections Nos. 1-36. 

 

·         Moving party is directed to prepare a written order consistent with the court's tentative ruling for the court's signature, pursuant to CRC 3.1312, and to provide notice thereof to all counsel and parties as required by law and the California Rules of Court.  The order is to be submitted directly to Judge Joseph C. Scott, Department 25. 

 

 

MOTION TO BIFURCATE TRIAL BY MICHAEL BURSAK

 

·         DENIED.  The Court finds that it would not be in the interest of convenience, expedience or economy to bifurcate the trial.  Based on the papers submitted it appears that the claims against Defendant Bursak and Defendants Steffani are intertwined and judicial economy, expedience, or convenience would not be served.  [CCP 598, 1048]. 

 

·         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. 

 

 

MOTION TO COMPEL ANSWERS TO DEPOSITION QUESTIONS BY CENTRAL CONCRETE SUPPLY CO., INC.

 

·         GRANTED as to Questions 4-9.  There is no attorney-client privilege for communications between attorney and client where the services of the attorney were “sought or obtained to enable or aid anyone to commit or plan to commit a crime or a fraud.”  [Evid. Code 956].  Plaintiff has established a prima facie case of fraud, as well as a reasonable relationship between the fraud and the attorney-client communications of Attorney Defendant Bursak and Defendant Steffani.  [BP Allaska Exploration, Inc. v. Superior Court (1988) 199 Cal.App.3d 1240, 1262-1268.]  Defendant Bursak is ordered to provide full and complete answers to Questions 4-9, without objection, no later than June 21, 2013. 

 

·         Moving party is directed to prepare a written order consistent with the court's tentative ruling for the court's signature, pursuant to CRC 3.1312, and to provide notice thereof to all counsel and parties as required by law and the California Rules of Court.  The order is to be submitted directly to Judge Joseph C. Scott, Department 25. 

 

 

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