July 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 GERALD J. BUCHWALD

Department 10

 

400 County Center, Redwood City

Courtroom 8D

 

Monday, July 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.

 

N.B. Notifying CourtCall with your intent to appear is not an alternative to notifying the court.  

 

    Case                  Title / Nature of Case

 

 

9:00    

 

Line 1

CIV 538041

SAMIR & RAFIA SHAIKH VS. MID-PENINSULA WATER

   DISTRICT

 

 

RAFIA SHAIKH

Pro/PER

MID-PENINSULA WATER DISTRICT

SANELA CAUSEVIC

 

 

Hearing on Demurrer

TENTATIVE RULING:

 

  • SUSTAINED WITH LEAVE TO AMEND. The General Demurrer of Defendant Mid-Peninsula Water District is Sustained With Leave To Amend as to the breach of contract and tort claims set forth in the 1st, 2nd, 3rd, 4th, and 6th,causes of action. No causes of action are stated therein for failure to allege prior presentation of a Government Code claim that is a required jurisdictional pre-requisite for proceeding with suit. The Special Demurrer of Defendant Mid-Peninsula Water District as to the 5th cause of action for so-called “Equitable Easement”, made on grounds of uncertainty in the allegations, is Sustained With Leave To Amend. Amended Pleadings, if any, to be filed and served within 20 days of Notice of Entry of the Court’s Order.

 

  • Before the Court is a Complaint by Pro Per Plaintiffs Samir & Rafia Shaikh that is somewhat difficult to follow. Their factual allegations, that are substantially repeated in each of their causes of action, are that the Defendant public entities Mid-Peninsula Water District and City of Belmont have committed certain acts that are interfering with Plaintiffs’ ability to develop a plot of land in Belmont, the land consisting of four undeveloped lots on which Plaintiffs want to build four single-family homes.

 

  • The basic gist of the alleged interference appears to be that part of an old underground water pipeline runs through Plaintiff’s property and Defendants’ employees will come onto the land to repair and maintain the water pipes, gates, and other associated things. These activities allegedly block Plaintiffs’ own access at times, do damage to fencing and other boundary structures, vegetation, and erode the stability of the hillside. Plaintiffs claim that these repair and maintenance activities not only do damage to the property, but also render the property a risk to public safety. This, they say, impairs the suitability of the site for home construction, amounts to an adverse possession without just compensation, and diminishes the market value of the property.

 

  • The Complaint asserts six causes of action: Breach of Contract (1st c/a), Negligence (2nd c/a), Trespass (3rd c/a), Fraud (4th c/a), Equitable Easement/Adverse Possession (5th c/a), and Nuisance (6th c/a).

 

  • The more clearly stated claims are those in tort: negligence, trespass, fraud, and nuisance. As to these causes of action, Plaintiffs fail to allege any prior presentation and rejection of, or being excused from filing, a Claim for Money or Damages under Calif. Government Code, Sections 900, et seq, 905, et seq, and 910. This filing of a pre-requisite tort claim, or showing facts excusing compliance, is jurisdictional, and suit cannot be brought without first doing so as administrative remedies have not been exhausted.

 

  • Therefore, as to the tort claims in the 2nd, 3rd, 4th, and 6th causes of action, no cause of action is stated.       

See, e.g., State of Calif.(Bodde) v. Superior Court of Kings County (2004) 32 Cal.4th 1234, 1242-43. See also Ghiozzi v. City of South San Francisco (1st Dist. 1946) 72 Cal. App.2d 472, where filing of claim was a required condition precedent to landowner’s action for damages from flooding of his land due to failure of city’s drainage canals to contain the flood.

 

  • Likewise, no cause of action is stated here for breach of contract. In their fact allegations, Plaintiffs refer to their contract to purchase the property, but do not set forth with any specificity a contract with either the Defendant Water District or the City of Belmont. Even if their fact allegations could be reasonably read to assert that there was a contract to give up so-called “easements” in exchange for Plaintiffs’ assuming the repair and maintenance burdens, thereby clearing the way for development, such a breach of contract suit would be an action for Money or Damages for which a Government Code claim is required as a condition precedent for suit. See, e.g., City of Stockton v. Superior Court of Sacramento County (2007) 42 Cal.4th 730, 738-742 [developer that asserted city breached development contract was required to file claim as prerequisite to filing lawsuit against city].

 

  • Turning to Plaintiffs’ remaining cause of action that is entitled “Equitable Easement”, it is difficult to tell exactly what claim Plaintiffs are trying to assert. As to this cause of action, the Court believes it should be guided by the doctrine that “The nature of an action and the issues involved are to be determined, not from the appellation given the pleading, but from the facts alleged and the relief that they support. Bloniarz v. Roloson (1969) 70 Cal.2d 143, 149.

 

  • At the caption of the Complaint, Plaintiffs list “Equitable Easement” and “Adverse Possession”, and in their fact allegations in the 5th c/a Plaintiffs complain of the Defendant public entities exercise of easement rights of ingress and egress without compensating Plaintiffs for that transitory use of the land.

 

  • It may be that Plaintiffs are trying to request Declaratory Relief to quiet title to the easement in their favor or trying to recover damages for inverse condemnation, neither of which requires the filing of a Government Code claim as a precondition of suit. Compare Hart v. Alameda County (4th Dist. 1999) 76 Cal. App.4th 766, at 782; Dahl v. City of Palo Alto (N.D. Calif. 1974) 372 F. Supp. 647 [Renfrew, Dist. Judge]. In any event, these allegations are so ill-defined and uncertain as to the legal theory of recovery, that Plaintiffs must be required to clarify their 5th c/a before the Court can permit them to go forward on this so-called “Equitable Easement” claim.

 

  • In view of the above-stated rulings, the Court need not reach other issues raised by the demurrers at this time.

 

  • 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, as the tentative ruling affords sufficient notice to the parties.

 

  • However, in this case, 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 of entry thereof to the opposing party/counsel as required by law and the California Rules of Court. Form of proposed Order to be submitted directly to Dept. 10 for signature by Judge Gerald J. Buchwald.

 

Motion to Strike

 

TENTATIVE RULING:

 

  • off-calendar as moot. The Demurrers having been Sustained With Leave To Amend as stated above, there is no operative Pleading pending and, therefore, the Court need not act on the Motion To Strike at this time. Hearing on that Motion is Ordered Off-Calendar without prejudice to a renewed Motion To Strike in response to Plaintiffs’ amended pleadings, if any, hereafter filed.

 

 

 

 

 

 

 

9:00

 

LINE 2

CIV 537691

AMBER LAUREL BAPTISTE VS. MICHAEL LEWIS GOGUEN

 

 

AMBER LAUREL BAPTISTE

PATRICIA L. GLASER

MICHAEL LEWIS goguen

DIANE M. DOOLITTLE

 

 

Motion to be Relieved as Counsel

TENTATIVE RULING:

 

  • GRANTED. The unopposed Motion of the Glaser Weil law firm, Patricia L. Glaser, and G. Jill Basinger, who are Counsel for Plaintiff Amber Laurel Baptiste, to be Relieved from their obligations as Plaintiff’s Counsel of Record herein is Granted.

 

  • This is an action to enforce an alleged $40 Million Settlement Agreement entered into prior to the filing of an anticipated lawsuit by Plaintiff against Defendant arising out of claimed years of sexual abuse in the context of human trafficking.

 

  • Moving Counsel has filed the Motion with the required statutory forms, including a Declaration setting forth that there exists an irreconcilable breakdown in the attorney-client relationship, as the client Ms. Goguen and Counsel have serious differences over the strategy, handling, and future course of the litigation. The statutory Notice has been served on the client Ms. Goguen.

 

  • The Court finds good cause for granting the Motion. Also, the Court sees no apparent undue prejudice to either of the parties to the case given that trial has only recently been set and is not going to go forward until May 1, 2017. The Court also notes Ms. Basinger’s statements in her supporting Declaration that there has been reasonable cooperation between opposing Counsel with respect to discovery matters, and that this is likely to continue with any new Plaintiff’s attorney.

 

  • 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, as the tentative ruling affords sufficient notice to the parties. And in that event, the Court intends to sign the proposed Order in the statutory form (form MC-053) that has been submitted.

 

 

 

 

 

 

 

9:00

 

 

LINE 3

 

 

CIV 534548

LAWRENCE T. PETRAKIS, ET AL. VS. ANAGNOSTIS E.

   ZACHARIADES

 

 

LAWRENCE T. PETRAKIS

ARTHUR D. LEVY

ANAGNOSTIS E. ZACHARIADES

EUGENE ASHLEY

 

 

MOTION TO PERMIT DISCOVERY OF DEFENDANT’S FINANCIAL CONDITION FOR

PUNITIVE DAMAGES PURPOSES

TENTATIVE RULING:

 

·         DENIED. Plaintiff Lawrence T. Petrakis’ Motion To Permit Discovery of Defendant Anagnostis E. Zachariades’ Financial Condition For Punitive Damages is Denied. Denial is without prejudice to the renewal of the Motion before the Trial Judge.

 

·         This in an action in which each Party sues the other for breach of fiduciary duties, and asserts related other claims. The case arises out of the operations of a member managed LLC named Athlotek, by which the Parties conducted a joint venture to develop and market a weighted body suit that could be used in athletic training or ordinary daily physical workouts. The LLC was owned 50/50.

 

·         The Parties’ cross-claims revolve around an allegedly wrongful diversion of funds from Athlotek to Mr. Zachariades’ other company, a professional consulting and product development firm named Polteco. This allegedly happened in 2013 when $202,000 of Athlotek monies went to Polteco and allegedly was unaccounted for on Athlotek’s corporate tax returns.

 

·         In order to obtain discovery of a defendant’s financial condition for the purpose of proving punitive damages, a plaintiff is required to obtain a court order based on a showing that there is a “substantial probability” he will prevail on the punitive damage claim.  Cal. Civ. Code section 3295(c).  This requires Plaintiff to show that he is “very likely” or has “a strong likelihood” of prevailing at trial.  Jarbo v. Superior Court (4th Dist. 2002) 95 Cal. Cal. App. 4th 754, 758. 

 

·         The Court rejects Defendant’s argument that this Motion is untimely because Discovery is now closed. The Court has discretion to hear such a Motion at any time, even after a determination of liability at trial. See Calif. Code of Civil Proc., Section 3295. See also Mike Davidov. Co. v. Issod (2nd Dist. 2000) 78 Cal. App.4th 600,603 & 609, cited by Plaintiff’s own counsel.

  

·         On the merits of the Motion, Plaintiff fails to establish a substantial probability that Defendant will be found liable for a breach of fiduciary duty. See Section 3295 (c).

 

·         There is no dispute here that the parties owned fiduciary duties to one another.  The issue is whether Defendant breached his fiduciary duties.   Plaintiff claims this is an open-and-shut breach of fiduciary duty claim because Defendant’s self-dealing put his interests at odds with Athlotek’s, and Defendant failed to adequately disclose how the funds were being used by Polteco. 

 

·         Plaintiff’s main argument appears to be that, while working on the 2013 taxes, Defendant sought to re-characterize payments from Athlotek to Polteco as service payments; this is largely a straw man.  The issue is not how the defendant sought to characterize the payments while working on the taxes, but what the purpose of the payments were when they were made, what disclosures were made at the time of the transactions, and how the payments were actually used. 

 

·         Tellingly, the pleadings are silent on these relevant matters.  For example, Plaintiff makes much ado about $142,000 being spent by Polteck on development services in 2013 that should have been provided by Defendant as part of his service contribution, yet plaintiff presents no evidence of how the funds were actually spent.  Of course the parties were aware that there would be costs associated with the development of the product separate and apart from management fees.  If the fees were properly spent, then it is unlikely that the Plaintiff breached any fiduciary duty. 

 

·         The crux of Plaintiff’s argument is that Defendant failed to disclose that the funds were going to be used for development services at the time the transactions were made.  While failure to disclose would be a breach of fiduciary duty, Plaintiff does not indicate what he was actually told about how the funds would be used.  The fact that the parties now dispute how the funds were characterized does not amount to a breach of fiduciary duty.

 

·         Even still, the inquiry does not end with Plaintiff’s moving papers.  In support of their opposition, Defendant submitted extracts from Plaintiff’s deposition.  In his deposition, Plaintiff acknowledges that he either directly or indirectly consented to all the fund transfers from Athlotek to Polteco.  Declaration of Jedidiah L. Doolittle, Ex A (deposition of Lawrence T. Petrakis) at 194:6-195:2.  The transcript is murky, and it is not clear whether Plaintiff knew how the funds were going to be spent or not.  Plaintiff is clear that he did not believe that the funds would be used to pay for development services, but it is not clear what that encompasses.

 

·         Given the lack of relevant facts in the moving papers, and the contentions put forth in the opposition, the finder of fact will have to fill in evidentiary holes to find a breach of fiduciary duty.  While Plaintiff’s cause of action would certainly survive a summary motion, it is not “very likely” that Defendant will be found to have breached his fiduciary duties.

 

 

·         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 4

 

CIV534539

LAWRENCE P. PURCELL VS. ERIC CARL DEBODE, ET AL.

 

 

LAWRENCE P. PURCELL

PHILIP L. GREGORY

ERIC CARL DEBODE

RICHARD J. VAZNAUGH

 

 

NON PARTY WITNESS JOHN D'S CONFIDENTIAL DESIGNATIONS PURSUANT TO PROTECTIVE ORDER

TENTATIVE RULING:

 

·         HEARING REQUIRED. COUNSEL TO PERSONALLY APPEAR. NO TELEPHONIC APPEARANCES. NO “COVERING” COUNSEL. COUNSEL ARE DIRECTED TO MEET AND CONFER, PRIOR TO THE HEARING, ON THE COURT’S TENTATIVE DISCOVERY ORDER SET FORTH BELOW.

 

·         This is a lawsuit in which the Parties each make claims against the other over ownership of certain property in Half Moon Bay. Plaintiff Lawrence Purcell is the original owner of the property and Defendants Eric Debode and Alice Linsmeier (a married couple) are the operators of a social services facility on the property. Each seeks to quiet title to the property, and asserts breach of contract, bad faith, and other related causes of action against the other.

 

·         The current dispute between the Parties was triggered by a purported unusual event at the property which occurred due to alleged serious and harmful misconduct by one of the social workers at the site. As a result of earlier Law & Motion proceedings, the true identity of that person is being kept confidential under a Protective Order of the Court previously issued by Hon. Elizabeth Lee. See Order filed December 29, 2015.

 

·         Deposition of the non-party social worker has been in progress, and the present Motion is brought by the Deponent on a special appearance seeking the Court’s resolution of a dispute as to the scope and application of the Protective Order.

 

·         The Court has reviewed the deposition transcript and attached exhibits that were lodged under seal along with the motion papers that are on file. Based on that review, the Court’s Tentative Supplemental Protective Order is as follows:

 

·         GRANTED IN PART; DENIED IN PART. Non-Party Witness’s Motion Re: Confidential Designations Under Protective Order is Granted In Part and Denied In Part, as follows:

 

  • GRANTED as to RT 11:22-23; RT 14:1-3; RT 16:1-2, and APS 099-103. 

 

  • Defendants ERIC CARL DEBODE and ALICE JOAN LINSMEIER have withdrawn their challenge to the confidential designations of the following:  RT 10:10-25; RT 15:23-24; RT 69:13-21; RT 75:6-8; RT 77:13-25; RT 78:1-25; RT 79:2-3; RT 91:6-25; APS 01-04; APS 05-11; APS 015-016; APS 012-014; APS 039-043; APS 051-057; APS 059-062; APS 064-065; APS 093-097; APS 0104-0106; APS 0108-0116; APS 0118-0120; and APS 0121-0135.    

 

  • DENIED as to the remaining contested portions of the Reporter’s Transcript of the Deposition. 

 

  • DENIED as to the remaining exhibit pages; however, where these pages are filed in the public record, the parties are ordered to redact the Deponent’s name wherever it appears. 

 

·         Moving Non-Party Witness’ request for monetary sanctions is DENIED.

 

·         Counsel for the Parties and Deponent’s Counsel to meet and confer on a form of Supplemental Protective Order setting forth the above ruling, form of proposed Order to be submitted directly to Dept. 10 for signature by Judge Gerald J. Buchwald.

 

 

 

 

 

 

 

9:00

 

LINE 5

CIV536445

JULIO C. TORRES-GARCIA VS. WERNER, CO, ET AL

 

 

JULIO C. TORRES-GARCIA

ROBERT E. CARTWRIGHT, JR

WERNER CO.

MICHAEL J. TERHAR

 

 

Hearing on Demurrer

TENTATIVE RULING:

 

·         HEARING REQUIRED. COUNSEL TO PERSONALLY APPEAR. NO TELEPHONIC APPEARANCES. NO “COVERING” COUNSEL. COUNSEL TO BE PREPARED TO ADDRESS THE ISSUES RAISED BELOW.

 

·         This is a personal injury and products liability action arising from Plaintiff’s fall from a two-part extension ladder that separated. The accident happened in December 2013 when Plaintiff Torres-Garcia was employed at Defendant Giannini Garden Ornaments, Inc. The moving party here is Defendant Employers Compensation Insurance Company.

 

·         The main issue raised on Demurrer has to do with the scope of the normally exclusive remedy of workers compensation as to the employer and its workers compensation carrier. This issue is triggered by allegations that there was a pre-suit agreement between Plaintiff, the employer, and the comp carrier to preserve the critical evidence of the ladder, a videotape of the accident, and certain other evidence. However, it is alleged that the employer and workers compensation carrier failed to do so, thereby seriously crippling Plaintiff’s ability to bring his product liability claims against other defendants.

 

·         Regarding the pending Demurrer to the entire Complaint and to the Sixth Cause of Action for destruction of evidence, the Court notes a conflict of authority in the appeals courts. Which is the better view that the Court should follow as to whether or not the destruction of evidence claim is within or outside of the workers compensation system as the exclusive remedy for job-related injuries?

 

·         If the Court determines, upon Hearing the matter, that the destruction of evidence claim falls within the workers compensation scheme, what sufficient remedy would there be for the loss of this critical evidence?

 

·         If the Court determines, upon Hearing the matter, that the destruction of evidence claim falls outside of workers compensation, how would such a ruling impact the other causes of action for products liability, breach of warranty, etc., against the other Defendants?

 

·         That is, if liability were to be imposed against the employer and workers compensation carrier on the basis of loss of Plaintiffs’ critical evidence that makes it difficult to prove his products liability and breach of warranty claims, what are resulting scenarios at trial? Normally, such tort claims against third parties other than the employer would be outside the worker compensation system; but in this case what would it mean if the Court rules that those claims are to go forward as to the employer and workers comp carrier? Is recovery, if any, chargeable against the workers compensation policy, within the policy limits as normal? Or is there an excess of limits exposure?

 

·         If Plaintiff recovers nothing as against the manufacturer and distributor Defendants, does that mean that he has the right to try his case against the employer and workers compensation carrier on the basis that due to their destruction of evidence tort liability is established and Plaintiff need only try damages as against the employer and workers compensation carrier? Or if, notwithstanding the loss of evidence, Plaintiff still recovers something against the other Defendants, but in an amount less than he reasonably would have recovered had the evidence not been lost, do the employer and workers compensation carrier have an obligation to make up the difference? 

 

·         The Complaint in paragraph 55 alleges that the workers compensation carrier “…pursued subrogation claims against the non-employer defendants…” What is Defense Counsel’s representation as to whether this is correct?  If it is correct, did the workers compensation carrier and/or its subrogation counsel ever have custody or control of the missing evidence?

 

 

 

 

 

 

 

 

9:00

 

LINE 6

CIV538047

JINAN FENG VS. JOANNA CHANG

 

 

JINAN FENG

PRO/PER

JOANNA CHANG

ARTHUR J. LIU

 

 

DEMURRER TO COMPLAINT OF FENG BY JOANNA CHANG

TENTATIVE RULING:

 

  • OVERRULED, IN PART; SUSTAINED WITH LEAVE TO AMEND, IN PART.  Defendant Joanna Chang’s Demurrer to Complaint as to the 1st cause of action for Breach of Contract is Overruled. Defendant Joanna Chang’s Demurrer to Complaint as to the 2nd cause of action for “Stolen Assets” and 3rd cause of action for Breach of Fiduciary Duty is Sustained With Leave To Amend. Amended Pleadings, if any, to be filed and served within 20 days of this Order.

 

  • Plaintiff Jinan Feng brings this suit against his sister Joanna Chang, making claims against her for mismanagement of the assets in a family trust under which, it appears, Plaintiff Feng, his sister Ms. Chang, and a third sibling Guoan Geng are the beneficiaries.

 

  • The Complaint here, while somewhat difficult to follow in its allegations, appears to be in the nature of an action to surcharge a Trustee, as allegedly sister Joanna Chang was serving as the managing member of a “Trust Committee” to do the administration of a trust holding assets of their parents. The focus of the action appears to be that Ms. Chang allegedly breached her contractual and/or fiduciary duties by wrongfully converting an apartment in Shanghai, a real estate asset of the trust, to her own use.

 

  • There are also allegations made that Ms. Chang refused Mediation as to the disputes arising out of the apartment sale, notwithstanding a prior agreement to so Mediate any disputes arising out of the trust.

 

  • The Court rules on the Demurrer as follows:

 

  • Defendant Joanna Chang’s Demurrer to the Complaint is OVERRULED as to the 1st C/A for Breach of Contract. Plaintiff has sufficiently alleged the elements of a breach of contract claim at ¶¶ 3, 4, 7, 12, 13.

 

  • Defendant Joanna Chang’s Demurrer to the Complaint is SUSTAINED with leave to amend as to the 2nd C/A for Stolen Assets.  Plaintiff appears to be attempting to state a cause of action for conversion but has not alleged sufficient facts to do so.

 

  • Defendant Joanna Chang’s Demurrer to the Complaint is SUSTAINED with leave to amend as to the 3rd C/A for Breach of Fiduciary Duty.  The allegations at paragraphs 17 and 18 merely reallege the breach of contract allegations.

 

  • 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.

 

 

 

9:01

 

LINE 7

CLJ 212481

ESSEX MGMT CORPORATION VS. SUZANNE M. RELANDER, ET AL.

 

 

ESSEX MANAGEMENT CORPORATION

ASHLEY E. KLEIN

SUZANNE M. RELANDER

PRO/PER

 

 

Motion for Summary Judgment

TENTATIVE RULING:

 

  • This Matter previously came on for Hearing on last Monday, July 18, 2016, at which time Defendant Suzanne Relander appeared without giving prior telephone notice to the Plaintiff’s Counsel and making a request for Hearing to the Court by voice mail on the phone line for doing so. Under the circumstances, the Hearing was continued to this date on condition that Notice be given to Plaintiff’s Counsel. The Court carries forward its previously posted Tentative Ruling, as follows:

 

  • GRANTED.

 

  • Plaintiff Essex Management Corporation’s unopposed Motion for Summary Judgment is GRANTED. 

 

  • This is an unlawful detainer case arising out of a one-year lease of an apartment at a multi-unit residential housing complex in Redwood City.  Suit is brought based on the Defendant tenant Ms. Relander’s wrongfully holding over after service of a 3-day notice to vacate the premises for repeated violations of the lease, including her disturbing the peace of other tenants by  harassment and threatening misconduct.

 

  • Plaintiff has established the required elements of unlawful detainer under Code of Civil Procedure §1161a: Plaintiff’s ownership and right to possession; termination of the defendants’ right to possession pursuant to a 3-day notice to quit and the defendant’s continuing possession. In this regard, Plaintiff relies on both the declaration of its property manager and facts that the Court previously deemed admitted when Ms. Relander failed to respond to discovery requests.

 

  • The burden then shifts to Defendant under CCP §437c (p)(1) to raise a triable issue of material fact. See, e.g., Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 849.   No opposition has been forthcoming.  Plaintiff is awarded a judgment for possession, unlawful detainer damages of $54.50 per day commencing March 31, 2016 and costs of $858.04. 

 

  • Plaintiff Essex Management Corporation’s Request for Judicial Notice is Granted pursuant to Evidence Code §§452, 453.

 

·         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. Form of Order to be submitted directly to Dept. 10 for signature by Judge Gerald J. Buchwald

 

 

 

 

 

 

 

9:01

 

LINE 8

16-UDL-00115

R. TOD SPIEKER vs. LYNN CROFTON, et al.

 

 

R. TOD SPIEKER

TODD ROTHBARD

LYNN CROFTON

PRO/PER

 

 

Motion to Quash

TENTATIVE RULING:

 

·         OFF-CALENDAR. The Court notes that there is no return on service of the motion papers filed with the Court. Accordingly, the Court cannot act on the Motion at this time. The matter is Ordered Off-Calendar without prejudice to being restored upon proper completion of service.

 

·         This is an unlawful detainer case brought for non-payment of rents. Defendants Lynn Crofton and Thomas Spingola leased an apartment in San Mateo from Plaintiff landlord R. Tod Speiker.

 

·         On or about July 5, 2016, Plaintiff served Defendants with a 3-day Notice to Pay Rent or Quit. The 3 days expired on July 5, 2016. The Defendants did not comply with the 3-Day notice by paying rent or vacating the premises.

 

·         This action for unlawful detainer was filed on July 13, 2016. Now, Defendants Lynn Crofton and Thomas Spingola have filed a Motion to Quash service of the summons and complaint based on improper service, and failure to comply with CCP §§1161 and 1162.

 

·         The Court’s Local Rule 3.15 states that all Motions to Quash in UD actions must be served and filed not less than 3 nor more than 7 days after filing the notice. This comports with CCP §1161.4 These Motions to Quash were originally filed on July 19, 2016 for a hearing on July 25, 2016. This would provide a minimum of 3 day’s notice but not more than 7 days as mandated by our Local Rule and the CCP. There is no proof of service so we have no way of knowing whether the motion was served on plaintiff’s attorney in a timely fashion.

 

 

9:01

 

 

LINE 9

CIV 535500

AHNA BALI VS. HISHAM MOHAMED ADEL, ET AL.

 

 

AHNA BALI

CHRISTOPHER B. DOLAN

HISHAM MOHAMED ADEL

BRIAN H. GUNN

 

MOTION FOR LEAVE TO FILE AMENDED COMPLAINT/ANSWER

TENTATIVE RULING:

 

  • HEARING CONTINUED, on the court’s own motion, TO tues. jULY 26, 2016, AT 9:00 AM.

 

  • Defendant Hisham Mohamed Abel’s Motion for Summary Judgment is again CONTINUED on the Court’s own motion. The Court has not completed its review of the matter. Accordingly, the matter is put over to July 26, 2016 at 9:00 a.m. in the Law & Motion Dept. The Court anticipates being able to post a Tentative Ruling on next Monday, July 25th.

 

 

 

In the Superior Court of the State of California

In and for the County of San Mateo

 

Special Set Calendar

Judge: Honorable susan irene etezadi

Department 18

 

400 County Center, Redwood City

Courtroom 2M

 

Monday, July 25, 2016

 

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

 

1. YOU MUST CALL (650) 261-5118 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

CIV 537502

KENNETH J. RICCARDI VS. MICHAEL J. SCARDINO

 

 

KENNETH J. RICCARDI

JEFFREY F. RYAN

MICHAEL J. SCARDINO

MARC SEIDENFELD

 

 

MOTION FOR RECONSIDERATION OF ORDER GRANTING DEFENDANT’S MOTION TO CONSOLIDATE BY KENNETH J. RICCARDI

 

TENTATIVE RULING:

 

The Motion for Reconsideration is GRANTED. Plaintiff has established the existence of new or different circumstances. However, the court declines to alter the prior order granting consolidation after reconsideration. Neither the addition of fraud causes of action nor an offer to buy the real property changes the fact that the probate and civil proceedings raise common issues. To the extent that Plaintiff has sought abatement of the probate proceeding, the probate court has denied that relief.

 

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, prevailing 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.

 

 

 

 

 


POSTED:  3:00 PM

 

 

 

© 2016 Superior Court of San Mateo County