October 21, 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 JOSEPH C. SCOTT

Department 25

 

400 County Center, Redwood City

Courtroom 2L

 

OCTOBER 20, 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 500745       MICHON COLEMAN VS. SAN MATEO COUNTY ASSOCIATION OF

                   REALTORS, ET AL.

 

 

MICHON COLEMAN                        TOMAS M. FLORES

SAN MATEO CO. ASSOCIATION OF REALTORS JOSHUA J. CLIFFE

 

 

MOTION FOR ATTORNEYS' FEES BY SAN MATEO COUNTY ASSOCIATION OF REALTORS

 

·         Moot.  Plaintiff filed a dismissal with prejudice of entire action on September 30, 2014.

 

·         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.

 

 

APPLICATION FOR ORDER TO SHOW CAUSE RE: CONTEMPT AND MOTION FOR MONETARY SANCTIONS

 

·         See tentative ruling above.

 

 

_____________________________________________________________________

 

9:00

2

CIV 526280       NORMA SERRANO, ET AL. VS. BAY BREAD LLC, ET AL.

 

 

NORMA SERRANO                         IVAN MOE

BAY BREAD LLC                         MARK R. CURIEL

 

 

DEMURRER TO COMPLAINT of SERRANO BY AEROTEK, INC.

 

 

·         Defendant AEROTEK, INC.’s Demurrer to Complaint, set for hearing on October 20, 2014, and Defendant ARYZTA LLC’s Demurrer to Complaint, set for hearing on November 17, 2014, are taken off the Law & Motion calendar. 

 

·         Plaintiffs are seeking to bring a class action, which requires them to file an application with the Presiding Judge’s department to designate this matter as complex, along with a Certificate Re: Complex Case Designation, pursuant to Local Rule 2.30.

 

·         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 528701       BENJAMIN PUENTES VS. COUNTRYWIDE HOME LOANS INC., ET

                   AL.

 

 

BENJAMIN PUENTES                      JAMIE EDWARDS QUADRA

WELLS FARGO, N.A.                     KENNETH A. FRANKLIN

 

 

DEMURRER TO FIRst Amended COMPLAINT of PUENTES BY WELLS FARGO BANK, N.A.

 

 

·         Defendant’s Request for Judicial Notice is GRANTED.

 

·         The unopposed Demurrer to the Negligence Cause of Action of the First Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.  Plaintiff has had two opportunities to plead facts demonstrating this cause of action is not barred by the statute of limitations and has not done so.  Plaintiff failed to plead facts demonstrating that Wells Fargo had a duty of care to plaintiff and plaintiff failed to allege facts demonstrating that Wells Fargo breached such duty.  Based on the lack of opposition, it would appear that Plaintiff has conceded to the arguments made in the demurrer.

 

·         Demurring party is directed to prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and to provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court.  The order is to be submitted directly to Judge Joseph C. Scott, Department 25.

 

 

_____________________________________________________________________

 

9:00

4

CIV 528834       PATRICIA HEWLETT VS. SHELTER CREEK CONDOMINIUM OWNERS

                   ASSOCIATION, ET AL.

 

 

PATRICIA HEWLETT                      PRO/PER

SHELTER CREEK CONDOMINIUM OWNERS

 

 

MOTION TO QUASH SERVICE OF SUMMONS AND PLAINTIFF'S COMPLAINT BY SHELTER CREEK CONDOMINIUM OWNERS ASSOCIATION

 

 

·         The unopposed motion is GRANTED.  Plaintiff has not established that the summons and complaint were served in any manner authorized by the Code of Civil Procedure.

 

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

 

 

_____________________________________________________________________

 

9:00

5

CIV 529036       NATERA, INC. VS. PROGENITY, INC.

 

 

NATERA, INC.                          GARET O'KEEFE

PROGENITY, INC.                       ETHAN D. DETTMER

 

 

MOTION TO STRIKE ALLEGATIONS FROM NATERA, INC.'S FIRST AMENDED COMPLAINT BY PROGENITY, INC.

 

·         Defendants’ Request for Judicial Notice is DENIED pursuant to Cal. Evid. Code § 452(h).  Amendment No. 1 is subject to dispute between the parties and the document is not capable of verification.  [See Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1145].

 

·         Defendant’s Motion to Strike Portions of the First Amended Complaint is DENIED in part and GRANTED in part with leave to amend.

 

·         Plaintiff conceded that its requests for attorney’s fees under causes of action 1 and 2 are improper, thus the request to strike those portions relating to the attorney’s fees is GRANTED.  Plaintiff also conceded its request for injunctive relief for the 60 day period.  Thus, the request to strike that portion relating to that injunctive relief is also GRANTED. 

 

·         Plaintiff has also failed to allege sufficient facts to make out a claim for actual and consequential and punitive damages or attorney’s fees under causes of action 5 and 6.  The request to strike the portions relating to the claims for this relief is GRANTED.  Plaintiff has not alleged sufficient facts to constitute a cause of action for unfair competition under which actual or punitive damages are available.  [Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1263-65].  Further there does not seem to be a common law cause of action for false advertising.  Plaintiff has not alleged the level of oppression, fraud, or malice necessary for punitive damages.  [Civ. Code § 3294(a)].  Plaintiff has also not shown that its primary purpose in pursuing this litigation is the benefit to the public, such that attorney’s fees under CCP § 1021.5 are not available.  [Bowman v. City of Berkeley (2005) 131 Cal.App.4th 173, 181].

 

·         Defendant’s request for judicial notice of Amendment No. 1 is denied, thus its arguments supporting its request to strike those allegations allegedly conflicting with Amendment No. 1 must be disregarded.  Thus, Defendant’s request to strike those portions relating to Amendment No. 1 is DENIED. 

 

·         Defendant’s request to strike the allegations describing the contents of Exhibits 3-4 to the First Amended Complaint are also DENIED because they do not conflict with Exhibits 3-4 for the reasons set forth more fully in the decision on Defendant’s demurrer. 

 

·         The portions of the First Amended Complaint to be stricken or not stricken are set forth specifically below:

 

·         GRANTED as to Page 3, paragraph 10, lines 20-22, the words- “'and also seeking to enjoin PROGENITY from selling or marketing any competing prenatal tests for a period of up to 60 days,"

 

·         DENIED as to Page 9, paragraph 41, lines 19-21, the words "PROGENITY failed to exchange data regarding ASP actually realized, such that the price adjustment may in fact be lower than was contemplated by the contract resulting in systematic underpayment by PROGENITY for NIPT tests"

 

·         DENIED as to Page 9, paragraph 43, line 28, the words - "or possibly a higher amount as may be determined at trial,"

 

·         GRANTED as to Page 10, paragraph 43, lines 1-4, the words " and will suffer irreparable harm to its market share and reputation unless PROGENITY is enjoined from GRANTED as to Page 10, paragraph 43, lines 1-4, the words "and will suffer irreparable harm to its market share and reputation unless PROGENITY is enjoined from promoting and selling prenatal tests developed by NATERA' s competitors for the 60 day period between when PROGENITY provided notice to terminate and when the Test Services Agreement is actually terminated thereby"

 

·         GRANTED as to Page 10, paragraph 43, line 5, the words "and attorney's fees"

 

·         DENIED as to Page 12, paragraph 58, subparagraph (a), lines 14- 19, the words "a Circulating the promotional materials attached hereto as Exhibit 3 and 4, among other materials, to members of the medical profession, with the intent to mislead them as to the Panorama test efficacy, including the false and misleading statements made by PROGENITY's Vice President, Christopher Lowe, that (1) Panorama has an unacceptable 10% redraw rate, (2) the Panorama test resulted in delayed results, (3) NATERA' s fetal fraction methodology is 'inaccurate', and (4) Panorama requires paternal DNA samples, and"

 

·         GRANTED as to Page 13, paragraph 60, lines 9-11, the words "or to divert any sales of prenatal tests to any of NATERA' s competitors during the final 60 -day transition period of the Test Sales Agreement, which does not end until August 8, 2014, at the earliest"

 

·         DENIED as to Page 13, paragraph 64, line 22 through Page 14, paragraph 64, line 2, the words: Defendant has, in connection with goods or services, used false or misleading descriptions of facts, or false or misleading representations of facts, which In commercial advertising or promotion misrepresents the nature, characteristics, or qualities of NATERA' s services Specifically, Defendant' s false or misleading statements include the following false and misleading statements made by PROGENITY' s Vice President, Christopher Lowe in the promotional materials attached as Exhibit 3, that (1) Panorama has an unacceptable 10% redraw rate, (2) the Panorama test resulted in delayed results, (3) NATERA' s fetal fraction methodology is 'inaccurate', and (4) Panorama requires paternal DNA samples".

 

·         GRANTED as to Page 14, Prayer for Relief, paragraph 1, line 22, the words "and attorney's fees".

 

·         GRANTED as to Page 14, Prayer for Relief, paragraph 3, lines 25- 27, the words "actual and consequential damages, interest thereon, punitive damages and attorney's fees and"

 

·         GRANTED as to Page 15, Prayer for Relief, paragraph 4, lines 1- 3, the words "(i) promoting or selling any competitive tests during the 60 day transition period through at least August 8, 2014,".

 

·         Plaintiff may file a Second Amended Complaint, if it elects to do so, consistent with the Court’s ruling, no later than November 5, 2014.

 

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

 

 

DEMURRER TO FIRst Amended COMPLAINT of NATERA, INC. BY PROGENITY, INC.

 

·         Defendant’s Demurrer to Plaintiff’s 6th C/A for false advertising is DENIED pursuant to CCP § 430.10(e).  Plaintiff has stated sufficient facts to constitute a cause of action for false advertising pursuant to Bus. & Prof. Code § 17500.  The promotional materials contained in Exhibits 3-4 to the First Amended Complaint do not contradict the allegations describing their contents.  Rather, the consumer group at issue in this case (doctors and patients) may read these promotional materials and believe that Plaintiff’s product (referred to in the promotional materials as the “other non-invasive prenatal test) to be inferior to Defendant’s new product line.  This is sufficient to state a cause of action for false advertising.   [McCann v. Lucky Money, Inc. (2005) 129 Cal.App.4th 1382, 1388; Consumer Advocates v. Echostar Satellite Corp. (2003) 113 Cal.App.4th 1351, 1362].

 

·         Demurring party directed to prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and to provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court.  The order is to be submitted directly to Judge Joseph C. Scott, Department 25.

 

 

_____________________________________________________________________

 

9:00

6

CIV 530401       CHRISTY STRICKLAND, ET AL. VS. COMMUNITY HEALTH

                   SYSTEMS, INC., ET AL.

 

 

CHRISTY STRICKLAND                    DAVID M. SLOAN

COMMUNITY HEALTH SYSTEMS, INC.

 

 

PETITION TO COMPEL DR. JOHN T. NING, NON-PARTY WITNESS, TO ATTEND AND TESTIFY AT DEPOSITION IN ACTION PENDING OUTSIDE CALIFORNIA AND FOR MONETARY SANCTIONS AGAINST DEPONENT BY CHRISTY STRICKLAND, ET AL.

 

 

·         Appear.

 

 

_____________________________________________________________________

 

9:00

7

CLJ 209919       PARKVIEW EDGE PROPERTIES, LLC VS. JESSE FONTENOT, et

                   al.

 

 

PARKVIEW EDGE PROPERTIES, LLC         SAM CHANDRA

JESSE FONTENOT

 

 

MOTION FOR SUMMARY JUDGMENT AS TO COMPLAINT (UNLAWFUL DETAINER)

of PARKVIEW EDGE PROPERTIES, LLC BY PARKVIEW EDGE PROPERTIES, LLC

 

 

·         Moot.  Dismissal of entire action was filed on October 16, 2014.

 

 

_____________________________________________________________________

 

9:00

8

CLJ 518992       INTERMEX WIRE TRANSFER CORP. VS. RICARDO ROBLES, ET

                   AL.

 

 

INTERMEX WIRE TRANSFER CORP.          BRUCE A. HATKOFF

RICARDO ROBLES                        PRO/PER

 

 

MOTION FOR ORDER ESTABLISHING ADMISSIONS AND FOR MONETARY SANCTIONS (ATTORNEY FEES AND COSTS) AGAINST DEFENDANT IN THE AMOUNT OF $1,551.00 BY INTERMEX WIRE TRANSFER CORP.

 

·         The unopposed motion is GRANTED.  The genuineness of any documents and the truth of any matters specified in the requests for admission are deemed admitted.

 

·         See below re costs and fees.

 

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

 

 

MOTION FOR ORDER COMPELLING RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION OF DOCUMENTS WITHOUT OBJECTION AND TO PRODUCE DOCUMENTS AND FOR MONETARY SANCTIONS (ATTORNEY FEES AND COSTS) AGAINST DEFENDANT IN THE AMOUNT OF $1,551.00 BY INTERMEX WIRE TRANSFER CORP.

 

·         The unopposed motion to compel is granted.  Defendant shall provide verified responses to the requests for production of documents, without objection, no later than 10 days after being served with notice of the Court’s order. 

 

·         The request for sanctions is granted pursuant to CCP §2033.280(c) and CCP §2031.300(c).  Defendant shall pay plaintiff a total of  $1,551 in sanctions to Plaintiff’s counsel for both motions, no later than 10 days after being served with notice of the Court’s order.

 

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

 

 

_____________________________________________________________________

 

9:00

9

CLJ 523619       COUNTY OF SAN MATEO VS. SHANE TINNEY

 

 

COUNTY OF SAN MATEO                   JOHN C. BEIERS

SHANE TINNEY                          PRO/PER

 

 

MOTION TO DEEM ADMISSIONS AS ADMITTED BY COUNTY OF SAN MATEO

 

 

·         The unopposed Motion is GRANTED.  The genuineness of any documents and the truth of any matters specified in the Request for Admission are deemed admitted.

 

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

 

 

_____________________________________________________________________

 

 

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