January 25, 2015
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 JOSEPH C. SCOTT

Department 25

 

400 County Center, Redwood City

Courtroom 2G

 

Monday, January 26, 2015

 

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 513147       FIDELITY NATIONAL TITLE COMPANY VS. ROBERT BRANZUELA,

                   ET AL.

 

 

FIDELITY NATIONAL TITLE COMPANY       PATRICK REIDER

ROBERT BRANZUELA                      MICHAEL J. KALLIS

 

 

MOTION TO BE RELIEVED AS COUNSEL BY MICHAEL J. KALLIS

 

 

·         The unopposed Motion to be Relieved as Counsel by Michael J. Kallis for Defendant Robert Branzuela and Cross-Complainants Robert Branzuela and Philip Branzuela is GRANTED pursuant to Code of Civil Procedure § 284(2).

·         Moving attorney is directed to prepare a written order on the appropriate Judicial Council form 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 Joseph C. Scott, Department 25.

 

_____________________________________________________________________

9:00

2

CIV 514498       BERNARDO R. CARRERA, ET AL. VS. FREMONT INVESTMENT &

                   LOAN, ET AL.

 

 

BERNARDO R. CARRERA                   TIMOTHY L. McCANDLESS

FREMONT INVESTMENT & LOAN

 

 

MOTION FOR SUMMARY JUDGMENT AS TO COMPLAINT of HSBC BANK USA, N.A.

BY HSBC BANK USA, N.A.

 

 

·         The unopposed Motion for Summary Judgment by Plaintiff HSBC BANK USA, N.A., AS TRUSTEE FOR HOME EQUITY LOAN TRUST SERIES ACE 2006-HE1, is DENIED WITHOUT PREJUDICE for failure to properly serve the moving papers on Defendants ROSARIO CARRERA and BERNARDO CARRERA.  The Proof of Service attached to Plaintiff’s moving papers indicates that they were served at an incorrect address for Defendants’ counsel.

 

·         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

3

CIV 519076       ROBERT McNAMARA, ET AL. VS. EMBASSY SUITES

                   MANAGEMENT, LLC, ET AL.

 

 

ROBERT McNAMARA                       RICHARD H. SCHOENBERGER

EMBASSY SUITES MANAGEMENT, LLC        JOSEPH A. AGUILAR

 

 

MOTION FOR GOOD FAITH SETTLEMENT BY EMBASSY SUITES MANAGEMENT, LLC, DJONT OPERATIONS, LLC AND FELCOR/CSS HOLDINGS, L.P.

 

 

·         The Motion for Good Faith Settlement Pursuant to CCP §§ 877 and 877.6 by Embassy Suites Management, LLC, Djont Operations, LLC and Felcor/CSS Holdings, L.P. is GRANTED.

 

·         Opposing parties did not meet their burden of proof that the settlement lacks good faith under CCP § 877.6(d).

 

·         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 Joseph C. Scott, Department 25.

 

_____________________________________________________________________

9:00

4

CIV 520065       JOHN MOLLOY, ET AL. VS. KAISER FOUNDATION HOSPITALS,

                   ET AL.

 

 

JOHN MOLLOY                           PRO/PER

KAISER FOUNDATION HOSPITALS           YVONNE M. PIERROU

 

 

PETITION TO APPOINT NEUTRAL ARBITRATOR BY KAISER FOUNDATION HOSPITALS AND THE PERMANENTE MEDICAL GROUP, INC.

 

 

·         Defendants’ Petition to Appoint a Neutral Arbitrator is GRANTED. 

 

·         In accordance with CCP § 1281.6, the Court shall nominate five (5) persons from lists of possible arbitrators supplied jointly by the parties to the Court by February 26, 2015.  The parties may, within five (5) days of service of notice of the nominees from the Court, jointly select the arbitrator whether or not the arbitrator is among the nominees. If the parties do not select an arbitrator within the five-day period, the Court shall appoint the arbitrator from the nominees.

 

·         In the event the parties fail to agree to an arbitrator, the case is continued to March 6, 2015 at 9:00 a.m. in the Law & Motion department for appointment of an arbitrator from the nominees.

 

·         The prevailing 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 provide notice thereof to opposing party/counsel as required by law and the California Rules of Court.  The order is to be submitted directly to Judge Joseph C. Scott, Department 25.

 

_____________________________________________________________________

9:00

5

CIV 529072       FOUR GATES CAPITAL, LLC VS. AKHENATON HASSAN SMITH,

                   ET AL.

 

 

FOUR GATES CAPITAL, LLC               KEVIN S. EIKENBERRY

AKHENATON HASSAN SMITH                RICHARD L. BECKMAN

 

 

MOTION FOR JUDGMENT ON THE PLEADINGS BY FOUR GATES CAPITAL, LL

 

 

·         The Court admonishes Plaintiff’s counsel Kevin Eikenberry and Defendant’s counsel Richard Beckman and the law firm of Beckman Blair for violating CRC Rule 3.1110(f) (requiring hard tabs between exhibits) regarding their respective Requests for Judicial Notice making it unnecessarily difficult for the Court to locate supporting evidence among non-separated exhibits.  The Court directs Counsel to comply with Rule 3.1110(f) in all subsequent motions in all matters before the Court.

 

·         The Motion is GRANTED as to the 1st Cause of Action with leave to amend the Answer.

 

·         The Complaint sufficiently alleges facts which, if true, state a claim for quiet title.  In evaluating a motion for judgment on the pleadings, the Court may rely only on the pleadings and judicially noticeable matter.  Defendant’s Answer does not allege an affirmative defense of res judicata or collateral estoppel.  Further, the documents submitted with Defendant’s Opposing Request for Judicial Notice show only that the Notice of Rescission was offered at trial in the unlawful detainer action and that judgment was entered for Defendant.  Neither the minutes from the trial nor the written Judgment demonstrates or implies that the Court made any finding on whether Polymathics held valid title.

 

·         The Complaint alleges that Western Resources was not a trustee when it issued the Notice of Rescission.  (Complaint ¶ 18.)  The allegation is sufficient to support the quiet title cause of action since all allegations are taken as true for purposes of the motion. Defendant’s contention that Western Resources might have been an agent of the trustee and that the Complaint fails to negate that possibility does not defeat the cause of action.  Whether Western Resources was an agent of Pite Duncan is new matter, which must be pleaded as an affirmative defense.  (Code of Civ. Proc. § 431.20.) It is not a plaintiff’s burden to allege the nonexistence of affirmative defenses.  Defendant’s Answer does not plead this new matter.

 

·         The Complaint states a cause of action for quiet title, and the Answer fails to allege facts to constitute an affirmative defense to quiet title.

 

·         Defendant is granted leave of Court until February 9, 2015 to file a First Amended Answer, if any, to plead facts constituting an affirmative defense.

 

·         If the tentative ruling is uncontested, it shall become the order of the Court.  Thereafter, counsel for Plaintiff 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.

 

 

MOTION FOR ORDER SEVERING 9-4-2014 CROSS-COMPLAINT FOR RESTITUTION AND CONSTRUCTIVE TRUST AND 10-27-2014 FIRST AMENDED CROSS-COMPLAINT FOR FRAUD AND FOR CONSTRUCTIVE TRUST AND RESTITUTION BY FOUR GATES CAPITAL, LLC

 

 

·         The Motion is DENIED WITHOUT PREJUDICE.  The Court has granted Defendant leave to amend its Answer.  Plaintiff is not entitled to entry of judgment at this point.  Therefore, severing the Cross-Complaints at this time would serve no purpose.

 

·         If the tentative ruling is uncontested, it shall become the order of the Court.  Thereafter, counsel for Plaintiff 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

6

CIV 530805       LEAH GONZALEZ LEAVY VS. SUTTER HEALTH, ET AL.

 

 

LEAH GONZALEZ LEAVY                   PHYLLIS E. ANDELIN

SUTTER HEALTH                         RAMON A. MIYAR

 

 

SPECIAL MOTION TO STRIKE PLAINTIFF'S COMPLAINT BY SUTTER HEALTH, MILLS PENINSULA HEALTH SERVICES AND REBECCA NASH

 

 

·         Moot.  This case was dismissed on January 6, 2015.

 

_____________________________________________________________________

9:00

7

CIV 530847       RAJESHKUMAR KANTILAL KHATRI VS. LAURIE SELLS, ET AL.

 

 

RAJESHKUMAR KANTILAL KHATRI           WALTER E. SHJEFLO

LAURIE SELLS

 

 

MOTION TO STRIKE PORTIONS OF COMPLAINT BY PRADEEP KANTILAL KHATRI

 

 

·         Defendant Pradeep Kantilal Khatri’s unopposed Motion to Strike is GRANTED WITH LEAVE TO AMEND.

 

·         Paragraphs 48, 63, 69 and 74 of the Complaint each include a statement that a claim is being presented only “to the extent not barred by statute of limitations, res judicata, collateral estoppel or prior compulsory cross-complaints as set forth in, among other things, plaintiff’s motion for summary judgment in Khatri 2 under which as of the date of the filing of this complaint a decision had not yet been rendered by the court.”  This statement is not part of any element of a cause of action nor is it an allegation of any facts necessary to establish a cause of action.  It is irrelevant and improper matter under CCP § 436(a).

 

·         Paragraphs 72 and 76 of the Complaint improperly allege entitlement to recovery based upon contingent events which have not yet occurred and which provide no basis for liability against Defendant Pradeep Kantilal Khatri.  In each paragraph, the charging allegation is contingent upon a future event: if Plaintiff is found in some manner responsible; if Plaintiff is judged liable.  These paragraphs fail to allege an actual existing dispute between the parties.

 

·         Paragraphs 55, 67 and Section e. of the Prayer contain unsupported allegations of entitlement to punitive damages.  Neither paragraph includes any facts demonstrating entitlement to punitive damages pursuant to Civil Code § 3294. 

 

·         The 2nd, 3rd , 4th and 5th Causes of Action all include the statement that a claim is being presented only “to the extent not barred by statute of limitations, res judicata, collateral estoppel or prior compulsory cross-complaints as set forth in, among other things, plaintiff’s motion for summary judgment in Khatri 2 under which as of the date of the filing of this complaint a decision had not yet been rendered by the court.”  The outright admission in the statement that the cause of action is conditioned on events which have not yet occurred fails to state the existence of an actual existing dispute between the parties.  Causes of action must be based upon facts, not upon speculation, about future events.  Plaintiff may file an amended pleading, should he elect to do so, no later than February 9, 2015.

 

·         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 Joseph C. Scott, Department 25.

 

 

DEMURRER TO COMPLAINT of KHATRI BY PRADEEP KANTILAL KHATRI

 

 

·         Defendant Pradeep Kantilal Khatri’s Demurrer is OVERRULED without prejudice.  CRC, Rule 3.113(a) requires the party filing a demurrer to file and serve a supporting memorandum.  The Court may construe the absence of a memorandum as an admission that the motion or special demurrer is not meritorious and be cause for its denial and in the case of a demurrer, as a waiver of all grounds not supported. In this matter, Defendant did not file a memorandum of points and authorities in support of the Demurrer.  Counsel filed a Demurrer, a Notice of Hearing, a Declaration of Counsel and a Request for Judicial Notice.  His Proof of Service states that a memorandum of points and authorities was mailed to opposing counsel, but none has been filed with the court.

 

·         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

8

CLJ 210392       NEWLANDS ENTERPRISES, LLC VS. TRACEY SKENDLE

 

 

NEWLANDS ENTERPRISES, LLC             JONATHAN D. BISHOP

TRACEY SKENDLE                        PRO/PER

 

 

DEMURRER TO COMPLAINT (UNLAWFUL DETAINER) of NEWLANDS ENTERPRISES, LLC BY TRACEY SKENDLE

 

 

·         Moot. A First Amended Complaint was filed on December 29, 2014.

 

_____________________________________________________________________

9:00

9

CLJ 474350       CAPITAL ONE BANK VS. JAMES O. MURDOCK, ET AL.

 

 

CAPITAL ONE BANK                      MARK D. WALSH

JAMES O. MURDOCK

 

 

MOTION FOR ASSIGNMENT ORDER AND ORDER RESTRAINING JUDGMENT DEBTOR BY CAPITAL ONE SERVICES, INC.

 

 

·         The Motion for Assignment of Rights and Restraining Order by Plaintiff Capital One Services, Inc. is GRANTED.  Plaintiff has established entitlement to the relief sought pursuant to CCP § 708.510.  The assignment order is granted pursuant to CCP § 708.510, and the restraining order is granted pursuant to CCP § 708.520(a).

 

·         All accounts, accounts receivable, rights to payment of money, contract rights, rights to payment of money from third parties, contingent rights, deposits and deposit accounts, claims against third parties, monies due from third parties, due and in favor of and for the benefit of Defendant are hereby assigned to Plaintiff CAPITAL ONE SERVICES, INC. for the purposes of payment of the judgment in the total amount of $3,476.05.

 

·         Defendant is hereby stayed, prohibited and enjoined from cashing, negotiating, advancing or collecting any and all accounts, accounts receivable, rights to payment of money, claims for payment of money due from third parties or other rights subject to the assignment herein.  Defendant is further stayed, prohibited and enjoined from the assignment, mortgage, lien or sale of any of the accounts, accounts receivable, rights to payment of money and claims for payment of money due from third parties, the subject matter of the assignment herein.

 

·         Defendant shall deliver all checks, cash, notes, instruments, deposits, deposit accounts, checks, drafts or warrants to the SHERIFF, COUNTY OF SAN MATEO, ATTN: CIVIL DIVISION, 400 County Center, Redwood City, CA  94063.

 

·         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 Joseph C. Scott, Department 25.

 


 

 

In the Superior Court of the State of California

In and for the County of San Mateo

 

SPECIAL SET CALENDAR

Judge: Honorable STEVEN L. DYLINA

Department 7

 

400 County Center, Redwood City

Courtroom 8B

 

January 26, 2015

 

 

If you plan to appear on any case on this calendar,

 you must call (650) 261-5107 before 4:00 p.m. and you must give notice also before 4:00 p.m. to all parties of your intent to appear pursuant to California Rules of Court 3.1308(a)(1).

 

Case                  Title / Nature of Case

2:00

1

CIV 522912       William Wraith, III VS. JUVENON INC., ET AL.

 

 

WILLIAM WRAITH, III                   DAN L. GILDOR

JUVENON INC.                          DANIEL S. SILVERMAN

 

 

MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT BY William Wraith, III

 

 

·         On December 23, 2014, Plaintiff filed an Unopposed Motion for Preliminary Approval of Class Action Settlement.  The Court has reviewed Plaintiff’s Motion, Plaintiff’s Memorandum of Points and Authorities in Support of the Motion and the Proposed Order Granting Approval of Class Action Settlement. 

 

A.  Certification of a Settlement Class

 

o   Under California Rules of Court, Rule 3.769(d), “[t]he court may make an order approving or denying certification of a provisional settlement class after the preliminary settlement hearing.”  The settlement class must satisfy the normal prerequisites for a class action.  (Hon. Rylaarsdam, et al., Cal. Prac. Guide Civ. Pro. Before Trial § 14:139.1.)  However, a lesser standard of scrutiny applies in certifying classes for settlement purposes.  (Id. at § 14:102.2, citing Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1807 fn. 19.)

 

o   Under Code of Civil Procedure § 382, “when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the Court, one or more may sue or defend for the benefit of all.”  The party seeking class certification must establish three things: “(1) the existence of an ascertainable and sufficiently numerous class, (2) a well-defined community of interest, and (3) substantial benefits from certification that render proceeding as a class superior to the alternatives.”  (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021.)  The “community of interest” requirement embodies three separate factors:  predominant common questions of law or fact; class representatives whose claims or defenses are typical of the class; and class representatives and class counsel who can adequately represent the class.  (Id.)  A predominant common question means that each member must not be required to individually litigate numerous and substantial questions to determine his or her right to recover, and the issues which may be jointly tried (when compared to those requiring separate adjudication) must be substantially numerous and substantial to make the class action advantageous.  (Washington Mutual Bank, FA v. Superior Court (2001) 24 Cal.4th 906, 913-914.)  “As a general rule if the defendant's liability can be determined by facts common to all members of the class, a class will be certified even if the members must individually prove their damages.”  (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1022 (internal quotes omitted).)  The typicality requirement means that a purported class representative’s claim must be “typical” but not necessarily identical to the claims of other class members; it is sufficient that the representative is similarly situated so that he or she will have the motive to litigate on behalf of all members.  (Classen v. Weller (1983) 145 Cal.App.3d 27, 45.)

 

o   The Court finds that Plaintiff has established the above factors.  The Settlement Agreement provides for conditional certification of a settlement class defined as “all California residents who purchased Juvenon Cellular Health Supplements manufactured by Defendants at any time since April 2011.”  The members of the class are numerous (over 500) and readily ascertainable (all purchases were made by mail order).  The Court further finds that the claims of the class representative, William Wraith, III, are typical of the claims of the settlement class because his claim arises from the same conduct that gives rise to the claims of the other class members, and thus he will be an adequate class representative.  Finally, class counsel can adequately represent the class given his extensive experience in this type of litigation.

 

B.  Preliminary Approval of Settlement

 

o  The settlement of a class action requires Court approval to protect against fraud and collusion and to ensure fairness to absent class members.  Thus, a Court must first preliminary approve the settlement agreement by finding it is within “the range of reasonableness” to merit class notice and the scheduling of a formal fairness hearing (Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1801; Cal. Rules of Court, rule 3.769.)  Here the Court finds that the injunctive relief provided for in the Settlement Agreement constitutes substantial relief that is within the range of reasonableness.  Defendants are obligated for two years to test all newly formulated lots of Juvenon Cellular Health Supplement to verify that the amounts of the active ingredients comport with those stated on the label.  This Court retains the jurisdiction to enjoin such sale for mislabeled products as further explained in the Settlement Agreement. 

 

o   Therefore, the Court tentatively GRANTS the Motion and approves of the Proposed Order attached to the Declaration of Jonathan E. Gertler in Support of Plaintiff’s Motion, with the following modifications to Paragraph 5:

 

§  First, given the class members are not entitled to any monetary relief, the Court finds it is not necessary and cost efficient to require re-mailing of returned postcard notices as set forth in Section VI, B, 5 of the Settlement Agreement, and it should be modified accordingly.

 

§  Second, the class members who do not opt out are giving up their right to appeal the settlement.  However, this point is not explicitly set forth in the Notice.  The only way for a class member to discover this fact is to read the Settlement Agreement.  The waiver of this right should be explicitly set forth in the long form notice to be placed on the website dedicated to this settlement.

 

o   The Court also tentatively APPROVES the Proposed Schedule for Final Approval set forth in Section V of Plaintiff’s Memorandum of Points and Authorities in Support of the Motion, which sets out a briefing schedule and hearing date for a motion for final approval and award of attorneys’ fees and costs. 

 


 

 

 


POSTED:  3:00 PM

 

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