December 18, 2014
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 ELIZABETH K. LEE

Department 17

 

400 County Center, Redwood City

Courtroom 2M

 

DECEMBER 15, 2014

 

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 512459       CHRISTINA EILEEN COULSON VS. LAUREN JEAN SPARKS

 

 

CHRISTINA EILEEN COULSON              GREGORY C. CATTERMOLE

LAUREN JEAN SPARKS                    ANDREW F. NOBLE

 

 

MOTION TO COMPEL DISCOVERY RESPONSES AND FOR SANCTIONS BY LAUREN JEAN SPARKS

 

 

·         Defendant, Lauren Jean Sparks’, Motion to Compel Discovery Responses is GRANTED because Plaintiff Christina Eileen Coulson failed to provide timely responses to Form Interrogatories, Special Interrogatories and Requests for Production of Documents.  Plaintiff shall provide full and complete responses pursuant to the Discovery Code within 15 days after service of Notice of Entry of Order (together with responsive documents).

 

·         Plaintiff shall pay monetary sanctions in the amount of $465.00 to Defendant 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 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 Elizabeth K. Lee, Department 17.

 

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9:00

2

CIV 513179       VARDIMAN ELECTRIC, INC. VS. ROBERTS MANAGING

                   CONTRACTORS, INC., ET AL.

 

 

VARDIMAN ELECTRIC, INC.               CREIGHTON A. STEPHENS

ROBERTS MANAGING CONTRACTORS, INC.

 

 

MOTION TO AMEND JUDGMENT BY ROBERTS MANAGING CONTRACTORS, INC.

 

 

·         The Motion to Amend Judgment is granted. Judgment Creditor RMC presents evidence to establish a prima facie case of an alter ego relationship between Judgment Debtor Vardiman Electric, Inc. and its owners, Jack Vardiman and Kristin Vardiman.  Judgment Debtor has not presented sufficient evidence to discount the existence of an alter ego relationship.

 

·         The evidence before the Court demonstrates:  sole ownership of all of the stock in a corporation by members of a family; commingling of funds; failure to adequately capitalize a corporation; diversion of corporate funds to other than corporate uses; domination and control of the corporation by two individuals; continued sole proprietorship in the same office.  The showing substantially meets the factors set forth in  Associated Vendors, Inc. v. Oakland Meats Co. (1962) 210 Cal.App.2d 825, 838-41.  (See evidence cited in Moving Points and Authorities at 2:10 – 6:13.)

 

·         From the evidence, the Court concludes that the corporation was entirely “influenced and governed by” Jack and Kristin Vardiman; a unity of interest and ownership existed such that the individuality, or separateness, of them and the corporation has ceased.  Finally, all assets of the corporation, including goodwill and business relationships, were transferred to Jack and Kristin and others, thereby making the corporation judgment-proof.  Under these facts, an adherence to the fiction of the separate existence of the corporation would “sanction a fraud or promote injustice.” (Associated Vendors, Inc. v. Oakland Meat Co. (1962) 210 Cal.App.2d 825, 837.

 

·         It does not appear that Jack and Kristin Vardiman controlled the litigation just because they were primary officers.  The supporting evidence presented by Judge Creditor RMC establishes that they were responsible for hiring attorneys and communicated directly with them on behalf of VEI.  But these facts do not necessarily translate into “controlling” the litigation.  Nor is there any evidence that they instructed the attorneys on what to do with respect to the case.

   

·         If the tentative ruling is uncontested, it shall become the order of the Court.  Thereafter, counsel for Judgment Creditor shall prepare for the Court’s signature a written order consistent with the above ruling, 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.

 

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9:00

3

CIV 523730       COUNSEL RB CAPITAL, LLC VS. SILICON VALLEY

                   DISPOSITION, INC. ET AL.

 

 

HERITAGE GLOBAL, LLC                  DAVID S. BLAU

SILICON VALLEY DISPOSITION, INC.      RYAN T. DUNN

 

 

DEMURRER TO THIIrd Amended COMPLAINT of HERITAGE GLOBAL, LLC BY SILICON VALLEY DISPOSITION, INC. AND JOHN CARROLL

 

 

·         Defendants Silicon Valley Disposition, Inc. and John Carroll’s Demurrer to Plaintiff's Third Amended Complaint is SUSTAINED without leave to amend as to the 2nd Cause of Action for Breach of Implied Contract.  The cause of action fails to state sufficient facts alleging Defendants’ conduct manifesting an assent to enter into a contract and to the specific terms of that agreement.

 

·         Defendants Silicon Valley Disposition, Inc. and John Carroll’s Demurrer to Plaintiff's Third Amended Complaint is SUSTAINED without leave to amend as to the alter ego allegations.  Plaintiff’s allegations regarding individual Defendant John Carroll do not establish him as a party to the contract nor as an individual to be held personally liable for a corporate entity.  Plaintiff’s alter ego allegations fail to allege sufficient facts establishing a valid alter ego claim.  See Vasey v. California Dance Co., Inc. (1977) 70 Cal.App.3d 742, 749.

 

 

·         Moving parties are 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 Elizabeth K. Lee, Department 17.

 

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9:00

4

CIV 525068       ALPHA CARD SYSTEMS, LLC VS. JOLLY TECHNOLOGIES, INC.

 

 

ALPHA CARD SYSTEMS, LLC               MATTHEW A. HAULK

JOLLY TECHNOLOGIES, INC.              ENOCH H. LIANG

 

 

MOTION FOR RECONSIDERATION OF THE COURT'S NOVEMBER 5, 2014 ORDER REGARDING COST-SHIFTING BY JOLLY TECHNOLOGIES, INC.

 

 

·         Defendant/Cross-Complainant JOLLY TECHNOLOGIES, INC.’s Motion for Reconsideration is GRANTED on the ground that Defendant has timely made an application based on new or different circumstances, specifically that its supplemental brief regarding discovery cost-shifting was filed after the Court’s Order on its motions to compel was entered.  Code Civ. Proc. § 1008(a). 

 

·         After considering Defendant’s Supplemental Brief in Opposition and accompanying Declaration of Timothy S. Fox, however, the Court REAFFIRMS its November 5, 2014 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 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 Elizabeth K. Lee, Department 17.

 

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9:00

5

CIV 528089       BOWIE CONSTRUCTION & ENGINEERING, INC. VS. DAVID

                   BAGBY, ET AL.

 

 

BOWIE CONSTRUCTION & ENGINEERING, INC. JANETTE G. LEONIDOU

DAVID BAGBY                           MICHAEL C. JOHNSTON

 

 

MOTION TO STAY ACTION PENDING ARBITRATION BY BOWIE CONSTRUCTION & ENGINEERING, INC.

 

 

·         The Motion to Stay Action Pending Arbitration is GRANTED pursuant to CCP § 1281.2.

 

·         California law favors enforcement of arbitration provisions, and doubts regarding the scope of the issue should be resolved in favor of enforcement.  Erickson, Arbuthnot, et al. v. 100 Oak St., 35 Cal.3d 312, 322 (1983).  CCP § 1281.1 provides that a written agreement to arbitrate is valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract.

 

·         An arbitration clause will not be enforced if it is found within an agreement that is void for fraud in the execution or fraud in the inception, such that there was never any existing agreement in the first place.  Duffens v. Valenti, 161 Cal.App.4th 434, 448 (2008). However, when the alleged illegality goes to only a portion of the contract (that does not include the arbitration agreement), the entire controversy, including the issue of illegality, remains arbitrable.  Id. at 449.  However, Defendants’ argument that the contract is void because it was induced by fraud is not supported by evidence.  Defendants have not produced a declaration or any other evidence to support that claim. 

 

·         Defendants’ arguments that the contract is void therefore the arbitration provision is void is inconsistent with their claim for breach of contract in the Cross-Complaint.

 

·         Defendants’ argument that the potential for conflicting decisions because some parties are parties to the arbitration agreement and others are not is not persuasive.  CCP § 1281.4 contemplates that and allows for a stay of the litigation while arbitration proceeds and permits the Court to sever issues.

 

·         Plaintiff’s Request for Judicial Notice is GRANTED pursuant to Evidence Code § 452.

 

·         Defendants’ Request for Judicial Notice in support of Opposition is GRANTED pursuant to Evidence Code § 452.

 

·         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 Elizabeth K. Lee, Department 17.

 

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9:00

6

CIV 528694       TERRY BROOKS VS. DUDLEY PERKINS COMPANY

 

 

TERRY BROOKS                          BRIAN L. LARSEN

DUDLEY PERKINS COMPANY                MATTHEW S. CONANT

 

 

MOTION FOR ORDER REQUIRING PLAINTIFF TO FILE AN UNDERTAKING (CCP § 1030) BY DUDLEY PERKINS COMPANY

 

 

·         The Motion for Order Requiring Plaintiff to File an Undertaking is denied.  Defendant has not provided admissible evidence to show that Plaintiff resides outside California or that it has a reasonable possibility of prevailing in the action.  Neither the rental agreement nor the release is property authenticated. 

·         Authentication means the introduction of evidence sufficient to sustain a finding that the writing is what the proponent claims it is or the establishment of such facts by any other means provided by law.   Evidence Code § 1400.  The declaration of Matthew Conant merely states that he has access to Defendant’s files.  There are no facts to show that either document is what Defendant claims it to be. 

·         Defendant’s reliance on Greenspan is misplaced.  That case involved attorney authentication of exhibits where the attorneys had personal knowledge regarding how the exhibits were obtained and identified and their status as true and correct copies.  There is no showing of such personal knowledge here.

·         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 Elizabeth K. Lee, Department 17.

 

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9:00

7

CIV 529660       GREGORY ATKINSON VS. URBAN LAND PRESERVATION, LLC,

                   ET AL.

 

 

GREGORY ATKINSON                      CHARLES H. RIBLE

URBAN LAND PRESERVATION, LLC          MARISA L. BALCH

 

 

JOINDER OF JOHN MARREN IN DEMURRER TO FIRST AMENDED COMPLAINT AND MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT BY URBAN LAND PRESERVATION, LLC AND JOHN ROWELL

 

 

·         John Marren’s Joinder in the Demurrer and Motion to Strike is granted.

 

 

DEMURRER TO FIRst Amended COMPLAINT of GREGORY ATKINSON BY URBAN LAND PRESERVATION, LLC AND JOHN ROWELL

 

 

·         Defendants' Request for Judicial Notice is granted.

 

·         Defendants' Demurrer to the 1st Cause of Action for Breach of Contract is overruled.  Plaintiff has pled the written contract according to its legal effect. 

 

·         Defendants' Demurrer to the 2nd Cause of Action for Interference with Contract or Prospective Economic Advantage on the ground of uncertainty is sustained with leave to amend.  Although interference with contract is a species of interference with prospective economic advantage, the two causes of action do contain different elements.  “Pleadings which jumble together several distinct causes of action may be subject to a demurrer for uncertainty."  Weil & Brown Cal. Prac. Guide Civ. Pro. Before Trial § 6:104.  Defendants' general Demurrer to the 2nd Cause of Action is also sustained with leave to amend.  Plaintiff has alleged all Defendants were the agents of the other Defendants (¶ 4).  A “stranger” to the contract or relationship means one who is not a party to the contract or an agent of a party to the contract.  Asahi Kasei Pharma Corp. v. Actelion Ltd. (2013) 222 Cal.App.4th 945, 963-64. 

 

·         The general Demurrer to the 3rd Cause of Action for Conspiracy and the 4th Cause of Action for Aiding and Abetting Interference of Contract or Prospective Economic Advantage is sustained with leave to amend for the same reasons.

·         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 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 Elizabeth K. Lee, Department 17.

 

 

MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT BY URBAN LAND PRESERVATION, LLC AND JOHN ROWELL

 

 

·         As this Court has sustained the general Demurrer to the causes of action which contained the request for punitive damages, the Motion to Strike is moot.

 

·         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 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 Elizabeth K. Lee, Department 17.

 

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9:00

8

CLJ 524571       THINKTANK LEARNING, INC. VS. HILDA LAI

 

 

THINKTANK LEARNING, INC.              DANNING JIANG

HILDA LAI

 

 

MOTION TO CONSOLIDATE CLJ 524571 WITH CLJ 530730 BY THINKTANK LEARNING, INC.

 

 

·         This matter is moot.  The parties have stipulated and the Court has ordered that the two matters be consolidated with Case No. CLJ524571 designated as the lead case.

 

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9:00

9

CLJ 526951       AMERICAN EXPRESS CENTURION BANK VS. M. BETTENCOURT

 

 

AMERICAN EXPRESS CENTURION BANK       MARTIN HOFFMAN

M. BETTENCOURT                        CHARLES A. GRASSO

 

 

MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION OF ISSUES BY AMERICAN EXPRESS CENTURION BANK AGAINST M. BETTENCOURT

 

 

·         Plaintiff American Express Centurion Bank’s Motion for Summary Judgment is GRANTED.  Plaintiff has met its initial burden pursuant to CCP § 437c(p)(1) through the written credit card application and agreement, the invoices and billing records for the account and the declaration of Linda Salas, their designated agent.  Defendant has not created any triable issues of material fact in response.  She has failed to file any opposition to the motion.

 

·         Judgment for Plaintiff as to account xxxx-xxxx-xxxx-5000 in the amount of $6,011.72 principal and costs of $819.50. 

 

·         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 Elizabeth K. Lee, Department 17.

 

_____________________________________________________________________

9:01

10

CLJ 210350       SERRAMONTE RIDGE, LLC VS. MARCIA BROWN

 

 

SERRAMONTE RIDGE, LLC                 BRIAN ROSALES

MARCIA BROWN                          PRO/PER

 

 

MOTION TO QUASH SERVICE OF SUMMONS BY MARCIA BROWN

 

 

·         Defendant Marcia Brown’s Motion to Quash is DENIED without prejudice.  San Mateo County Superior Court 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 Motion to Quash was originally set on December 8, 2014 for a hearing on December 15, 2014.  This would provide a minimum of 3 days’ notice [and not more than 7 days].  The Proof of Service states that the motion was served by regular mail on Plaintiff’s attorney on December 8, 2014.  Five (5) additional calendar days are required for mailing pursuant to CCP § 1005.  This notice is technically insufficient under our local rule.  A minimum 3 days’ notice +5 additional days for mailing means that the first day this motion could be heard is December 16, 2014.  Notice for a hearing on December 15, 2014 is insufficient.

 

·         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 Elizabeth K. Lee, Department 17.

 

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POSTED:  3:20 PM

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