December 9, 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 jonathan e. karesh

Department 20

 

400 County Center, Redwood City

Courtroom 8C

 

Monday, December 5, 2016

 

NOTICE TO ALL COUNSEL

 

Until further order of the Court, no endorsed-filed “courtesy copy” of pleadings is required to be provided to the Law and Motion Department.

 

 

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

 

1. YOU MUST CALL (650) 261-5019 BEFORE 4:00 P.M. TO INFORM THE COURT OF YOUR INTENT TO APPEAR.

2. You must give notice before 4:00 P.M. to all parties of your intent to appear pursuant to California Rules of Court 3.1308(a)(1).

 

Failure to do both items 1 and 2 will result in no oral presentation.

 

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

 

All Counsel are reminded to comply with California Rule of Court 3.1110.  The Court will expect all exhibits to be tabbed accordingly. 

 

    Case                  Title / Nature of Case

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Line: 1

16-CIV-00837     CYPRESS INSURANCE COMPANY vs. DEE DIBENEDETTO, et al.

 

 

CYPRESS INSURANCE COMPANY              GREGORY F. JOHNSEN

DEE DIBENEDETTO                        THOMAS S. GELINI

 

 

MOTION TO CONSOLIDATE

TENTATIVE RULING:

 

The Motion to Consolidate Cases 535523 and 535939 with 16-CIV-00837 is granted. 

 

The Santos action shares a large number of factual and legal issues in common with the Cypress Insurance (16-CIV-00837) action. Both cases seek damages for injuries (and in the Santos action, death) of JobTrain workers, resulting from the collision with the automobile driven by Defendant DiBenedetto and owned by Defendant Yancey. In both actions, DiBenedetto asserts a defense concerning a medical condition. Although the actions contain some factual and legal differences, the common issues predominate.

 

The Ballard action shared almost no common issues of law or fact with the Cypress Insurance action. However, the Ballard and Santos actions share an identical premises liability claim against Caltrans, and those two cases are already consolidated.

 

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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Lines: 2 & 3

16-CIV-00900     NFP PROPERTY & CASUALTY SERVICES, INC. vs. ROBERT

                     ENNIS, et al.

 

 

NFP PROPERTY & CASUALTY SERVICES, INC. SAUNDRA K. WOOTTON

ROBERT ENNIS                           PAUL J. SMOOT

 

 

2. Application to appear as counsel pro hac vice

TENTATIVE RULING:

 

Melissa A. Bozeman’s Application to Appear as Counsel Pro Hac Vice for Plaintiff and Cross-Defendant NFP Property & Casualty Services, Inc. in this matter is GRANTED pursuant to California Rules of Court, Rule 9.40.

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10.  If the tentative ruling is uncontested, prevailing party is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order is to be submitted directly to Judge Jonathan E. Karesh, Department 20.

 

 

3. Application to appear as counsel pro hac vice

TENTATIVE RULING:

 

Oliver D. Griffin’s Application to Appear as Counsel Pro Hac Vice for Plaintiff and Cross-Defendant NFP Property & Casualty Services, Inc. in this matter is GRANTED pursuant to California Rules of Court, Rule 9.40.

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10.  If the tentative ruling is uncontested, prevailing party is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order is to be submitted directly to Judge Jonathan E. Karesh, Department 20.

 



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Line: 4

CIV211374    DALY CITY SERRAMONTE CTR. VS FOREIGN EXCHANGE, INC.

 

 

DALY CITY SERRAMONTE CENTER, LLC       ERNIE ZACHARY PARK

FOREIGN EXCHANGE, INC.                 AMORN BHOLSANGNGAM

 

 

MOTION TO BE RELLIEVED AS COUNSEL

TENTATIVE RULING:

 

The Motion to be Relieved as Counsel of Record is DENIED WITHOUT PREJUDICE.  Pursuant to CRC 3.1362, a motion to be relieved as counsel must contain Judicial Council forms MC-051 (notice of motion), MC-052 (declaration), and MC-053 (proposed order). Each of these documents must be served on the client and all other parties who have appeared in the action.  CRC 3.1362(d).  In this case, the proof of service does not show that the proposed order (MC-053) was ever properly served. 

 

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 Jonathan E. Karesh, Department 20. 

 



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Line: 5  

CIV533328     SIX4THREE, LLC VS. FACEBOOK, INC, ET AL.

 

 

FACEBOOK, INC.                         JULIE E. SCHWARTZ

SIX4THREE, LLC                         BASIL P. FTHENAKIS

 

MOTION FOR A PROTECTIVE ORDER

TENTATIVE RULING:

Defendant Facebook, Inc.’s motion for a protective order as to Plaintiff’s Requests for Production Nos. 5, 25, and 26 is GRANTED-IN-PART and DENIED-IN-PART.  The primary issue here is undue burden, not relevance.  As Plaintiff notes, the Second Amended Complaint alleges actions by Facebook, beginning prior to 2007, that lured developers, including Plaintiff, to develop applications that promoted/enhanced Facebook’s website, and then, in 2015, effectively shut down the Facebook Platform to Plaintiff and other developers who had been relying for years on Facebook’s alleged promises not to favor Facebook’s applications over those of other developers.  Given the SAC’s allegations, the Requests at issue in this motion are at least reasonably calculated to lead to the discovery of admissible evidence.  Code Civ. Proc. Sect. 2017.010; Davies v. Superior Ct. (1984) 36 Cal.3d 291, 301; Volkswagen of America, Inc. v. Superior Ct. (2006) 139 Cal.App.4th 1481, 1490-1491.  

Facebook, however has submitted evidence indicating these Requests potentially encompass dozens of business groups, hundreds of employees, millions of documents and communications, and potentially resulting in a cost millions of dollars to review and produce.  Nov. 28, 2016 Miller Decl., Parag. 2.  While these estimates are clearly speculative, the Court agrees Requests Nos. 5 and 25 are overbroad and unduly burdensome.

Notwithstanding the fact the requested documents are the subject of a Court order compelling their production, when ordering the documents produced, the Court specifically referenced the potential need to limit their scope in the event the production proves unduly burdensome.  Sept. 8, 2016 Hearing Transcript.      The Court notes Facebook’s representation that it ran a search for documents responsive to Plaintiff’s other pending document Requests (excluding Nos. 5, 25 and 26) using eight custodians and 54 search terms, which returned over 100,000 responsive documents.  Facebook promises a production of these documents by the Dec. 5, 2015 deadline following a privilege review. 

As to Requests Nos. 5 and 25, it is neither feasible nor reasonable to compel production of all responsive documents.  The parties’ papers describe an “extensive” meet and confer regarding these Requests, but neither party identifies any proposed compromise language (narrowing language) that would make a production feasible.  Instead, both sides take a hard line position:  Plaintiff seeks production of all responsive documents, dismissing claim of undue burden, whereas Facebook wants a protective order eliminating the Requests entirely.  The parties could find a solution by, for example, limiting the time frame of the Requests, reducing the number of custodians, reducing the number of search terms, etc.  The parties are in the best position to narrow the Requests. 

As to Nos. 5 and 25, the parties shall meet and confer and agree, within 7 days of the Court’s Order on this motion, to language limiting/narrowing both Requests.  If the parties reach an agreement, they should also agree on a production date for both Requests, not to exceed 4 weeks from the Court’s Order on this motion.  If the parties cannot agree, Plaintiff shall provide Facebook, within 7 days of the Court’s Order on this motion, its proposal to narrow both Requests.  Facebook should prepare its own proposal.  Facebook shall then run a search for responsive documents using each party’s proposals as to both Requests, and shall provide the Court, within 14 days of the Court’s Order on this motion, (a) a copy of both parties’ proposals; and (b) a sworn statement indicating the number of responsive documents that exist pertaining to each side’s proposals.  The Court will review the proposals (and the corresponding number of document hits) and decide whether to compel a production, which could mean choosing one or neither of the parties’ proposals.  The Court will consider sanctions against any party not attempting to resolve this dispute in good faith. 

As to Request No. 26, the motion is GRANTED.  While the Request is arguably “reasonably calculated to lead to the discovery of admissible evidence,” it is identical to Request 25, but focuses on Instagram rather than Facebook.  The allegations in the SAC center on Facebook’s website and Platform.  Although a wholly-owned subsidiary, Instagram is a separate company and not a party.  The SAC’s allegations are not directed to the Instagram website or platform.  Plaintiff alleges damage from Facebook preventing access to Facebook’s Platform, specifically, its Friend’s Photos Endpoint.  None of the allegations pertain to Instagram.  Because documents pertaining to Facebook’s use of image recognition software on Instagram are of marginal relevance, any relevance is outweighed by the undue burden of their production.  Code Civ. Proc. Sect. 2031.060(f).

 

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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Line: 6

CIV535523     JIMMIE BALLARD VS. STATE OF CALIFORNIA DEPART OF TRANSPORT

 

 

DEE DIBENEDETTO                        THOMAS S. GELIN

RAMON ALBERTO SANTOS                   JESSE F. RUIZ

 

 

MOTION TO CONSOLIDATE

TENTATIVE RULING:

 

The Motion to Consolidate Cases 535523 and 535939 with 16-CIV-00837 is granted. 

 

The Santos action shares a large number of factual and legal issues in common with the Cypress Insurance (16-CIV-00837) action. Both cases seek damages for injuries (and in the Santos action, death) of JobTrain workers, resulting from the collision with the automobile driven by Defendant DiBenedetto and owned by Defendant Yancey. In both actions, DiBenedetto asserts a defense concerning a medical condition. Although the actions contain some factual and legal differences, the common issues predominate.

 

The Ballard action shared almost no common issues of law or fact with the Cypress Insurance action. However, the Ballard and Santos actions share an identical premises liability claim against Caltrans, and those two cases are already consolidated.

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.

 



9:00

Line: 7

CIV537565     FLUIZA FLODR VS. GEORGE JAMES ANAGNOSTOU

 

 

LUIZA FLODR                            JOHNNY J. YEH

GEORGE JAMES ANAGNOSTOU                PrO/PER

 

 

MOTION for ORDER ESTABLISHING ADMISSIONS

TENTATIVE RULING:

 

The motion is DENIED WITHOUT PREJUDICE.  Plaintiffs have not established that the requests for admission were served on defendant at his address of record.  The declaration of Johnny Yeh states that service was effected by Angela Suarez, an employee of his firm, but she has not provided a declaration attesting to the service.  While Mr. Yeh states that the requests, together with a proof of service are attached as Ex. A, the exhibit does not include a proof of service. 

 

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 Jonathan E. Karesh, Department 20. 

 



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LineS: 8 & 9  

CIV538041     SAMIR & RAFIA SHAIKH VS. MID-PENINSULA WATER DISTRICT

 

 

SAMIR SHAIKH                           Pro/PER

MID-PENINSULA WATER DISTRICT           SANELA CAUSEVIC

 

 

8. DEMURRER TO PLAINTIFFS' FIRST AMENDED COMPLAINT FOR DAMAGES

TENTATIVE RULING:

 

The unopposed Demurrer of Defendant Mid-Peninsula Water District (“Defendant”) to the First Amended Complaint (“FAC”) by Plaintiffs Samir Shaikh and Rafia Shaikh (“Plaintiffs”), is ruled on as follows:

 

Demurrer to the First Cause of Action for Breach of Contract is SUSTAINED WITHOUT LEAVE TO AMEND, pursuant to Code of Civil Procedure section 430.10(e).  Plaintiffs fail to allege the material terms of any claimed contract with Defendant, and further fail to attach a copy of any written agreement with Defendant.  Plaintiffs have also failed to allege compliance with the claim presentation requirements under the California Government Code.  (See Gov. Code § 945.4; State v. Superior Court (Bodde) (2004) 32 Cal.4th 1234, 1242-1243.)  Plaintiffs further have not opposed the demurrer, and therefore have not established how they would be able to amend to allege such a claim. 

 

Demurrer to the Second Cause of Action for Negligence, Third Cause of Action for Trespass and Fourth Cause of Action for Fraud, is SUSTAINED WITHOUT LEAVE TO AMEND, pursuant to Code of Civil Procedure section 430.10(e).  As to each of these claims, Plaintiffs fail to allege a statute that supports liability against Defendant for these claims.  The Government Tort Claims Act provides that except as otherwise provided by statute, a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.  (Gov. Code § 815(a).)  Plaintiffs also fail to allege facts sufficient to support each element of these claims. Lastly, Plaintiffs fail to allege compliance with the claim presentation requirements under the California Government Code.  (See Gov. Code § 945.4; State v. Superior Court (Bodde) (2004) 32 Cal.4th 1234, 1242-1243.) 

 

Demurrer to the Fifth Cause of Action for Nuisance, is SUSTAINED WITHOUT LEAVE TO AMEND, pursuant to Code of Civil Procedure section 430.10(e).  Plaintiffs fail to allege compliance with the claim presentation requirements under the California Government Code.  (See Gov. Code § 945.4; State v. Superior Court (Bodde) (2004) 32 Cal.4th 1234, 1242-1243.) 

 

Demurrer to the Sixth Cause of Action for Inverse Condemnation is SUSTAINED WITH LEAVE TO AMEND, pursuant to Code of Civil Procedure section 430.10(e).  Plaintiffs appear to be alleging that Defendant’s easements have caused damage to Plaintiffs’ property.  Such allegations are insufficient to support an action for inverse condemnation.  (See Hayashi v. Alameda County Flood Control and Water Conservation Dist. (1959) 167 Cal.App.2d 584, 592.)

 

Demurrer to all Six Causes of Action in the FAC based on uncertainty, is OVERRULED. A demurrer for uncertainty will be sustained only where the complaint is such that the defendant cannot reasonably respond.  (See Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) 

 

Plaintiffs shall have 20 days from service of the notice of entry of order to file and serve a Second Amended Complaint with respect to the Inverse Condemnation cause of action.

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10.  If the tentative ruling is uncontested, prevailing party is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order is to be submitted directly to Judge Jonathan E. Karesh, Department 20.

 

9. MOTION TO STRIKE

TENTATIVE RULING:

 

The unopposed Motion of Defendant Mid-Peninsula Water District (“Defendant”) to Strike Portions of the First Amended Complaint by Plaintiffs Samir Shaikh and Rafia Shaikh (“Plaintiffs”), is DROPPED AS MOOT in light of the court’s ruling sustaining Defendant’s Demurrer to all of the claims alleged in Plaintiffs’ First Amended Complaint.

                          

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10.  If the tentative ruling is uncontested, prevailing party is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order is to be submitted directly to Judge Jonathan E. Karesh, Department 20.

 



9:00

Line: 10

CIV538106     LOUIS A LIBERTY, ET AL. VS. WILLIAM R. SUTTON, ET AL.

 

 

MICHAEL Z. TUN                         LOUIS A. LIBERTY

WILLIAM R. SUTTON

 

 

DEMURRER TO FIRST AMENDED COMPLAINT

TENTATIVE RULING:

                                                  

Defendants ORRICK, HERRINGTON & SUTCLIFFE LLP and LOWELL D. NESS’ Demurrer to First Amended Complaint is OVERRULED. 

 

In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows merely that the action may be barred.  McMahon v. Republic Van & Storage Co., Inc. (1963) 59 Cal.2d 871, 874.  Here, the First Amended Complaint does not show on its face that Plaintiffs’ claims against demurring Defendants are time-barred.  In particular, the allegations contained in Paragraph 72 would indicate that the delayed discovery rule applies.  See Brandon G. v. Gray (2003) 111 Cal.App.4th 29, 35; Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1109-1111 (the period of limitations begins to run when the plaintiff has a “suspicion of wrongdoing”). 

 

The remainder of the demurrer argues factual disputes which cannot be considered on a demurrer, but can be addressed at trial or in a motion for summary judgment.

 

Defendants are to file an answer to the complaint within 20 days of service of the notice of entry of order.

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10.  If the tentative ruling is uncontested, prevailing party is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order is to be submitted directly to Judge Jonathan E. Karesh, Department 20.

 



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LineS: 11 & 12

CLJ533783     METRO MECHANICAL, INC., ET AL. VS. ANTONIO DURAN

 

 

METRO MECHANICAL, INC.                 VICTORIA L. H. BOOKE

ANTONIO DURAN                          JUDY CHI-DEE TSAI

 

 

11. DEMURRER TO SECOND AMENDED COMPLAINT

TENTATIVE RULING:

 

The demurrer is ordered off calendar.  It has been continued to January 5, 2017.  The hearing will take place at 9 am. in the Law and Motion Department.

 

 

12. MOTION TO STRIKE SECOND AMENDED COMPLAINT

TENTATIVE RULING:

 

The motion to strike is ordered off calendar.  It has been continued to January 5, 2017.  The hearing will take place at 9 am. in the Law and Motion Department.

 


 

 

 

 

 


POSTED:  3:00 PM

 

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