April 23, 2014
Law & Motions Tentative Rulings
  • Law and Motion Department Tentative Ruling Line:  (650) 363-1882
  • 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 LISA A. NOVAK

Department 13

 

400 County Center, Redwood City

Courtroom 2C

 

APRIL 21, 2014

 

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

1.      YOU MUST CALL (650) 363-1882 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

1

CIV 516437   2104 SANDHILL ROAD, LLC VS. 2128 SANDHILL, LLC, ET AL.

 

 

2104 SANDHILL ROAD, LLC               DAVID E. BUNIM

2128 SANDHILL, LLC                    KENNETH L. DZIESINSKI

 

 

MOTION FOR SUMMARY JUDGMENT AS TO COMPLAINT of 2104 SANDHILL ROAD, LLC FILED BY LOUIS PTAK CONSTRUCTION, INC.

 

 

  • Defendant, Cross-Complainant, and Cross-Defendant Louis Ptak Construction, Inc.’s request for judicial notice of court records filed in this action is GRANTED, but not as to the truth of matters asserted therein.

 

  • Defendant, Cross-Complainant, and Cross-Defendant Louis Ptak Construction, Inc.’s objections to the Declaration of Dino Turchet are OVERRULED as to objection nos. 1 & 3, and SUSTAINED as to No. 2.  Defendant, Cross-Complainant, and Cross-Defendant Louis Ptak Construction, Inc.’s objections to the Declaration of David Glaspy are SUSTAINED as to objection nos. 1-2.  Counsel is admonished to fully comply with CRC 3.1345 and submit the objections on a separate form and with a proposed order.

 

  • Defendant, Cross-Complainant, and Cross-Defendant Louis Ptak Construction, Inc.’s (“Ptak”) Motion for Summary Adjudication is DENIED as to Issue Nos. 1-4.

 

This is a renewed motion for summary adjudication pursuant to Code of Civil Procedure section 1008(b).  Code of Civil Procedure § 1008(b) provides:

 

o   A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. Code Civ. Proc., § 1008(b). 

 

o   Ptak presents the declaration of its counsel, Jonathan Heck, which sets forth  information in support of this renewed motion.  In Judge Freeman’s ruling of November 8, 2013, PTak’s motion was denied as the judge found there were triable issues of fact as to whether B&T caused the damage to the trees.  [RJN Ex. 10 of Declaration of Glaspy] This motion is based in part on Defendant, Cross-Complainant, and Cross-Defendant Benedetti & Turchet Concrete Construction, Inc.’s (“B&T”) responses to Requests for Admission Set No. 1, which were served after the Court ruled on the original motion for summary adjudication.  In that response B&T admits it performed the work in question.  As such, this is “new” evidence which Ptak did not possess at the time of the first MSJ.  However, other evidence which Ptak asserts is new, namely the Change Order of October 2011 relating to the digging of the storm drain [Ptak decl., Ex. C], appears to have been in its possession prior the hearing of November 2013.  As such, the Court will not consider it for any purpose in ruling on this motion. 

 

·         While new evidence supports Ptak’s renewed motion for summary adjudication, triable issues of material still fact remain as to whether all of B&T’s work on the improvements on 2128 Sandhill Road was performed pursuant to the subcontract.  (SSUF 7, 18-19; SSUF 36, 47-48; SSUF 62, 67-69; SSUF 80, 85-87.)  It is undisputed that Plaintiff’s claims against Ptak and Defendant, Cross-Complainant, and Cross-Defendant 2128 Sandhill, LLC arise out of excavation work which occurred in October 2011.  Ptak has made a prima facie showing that B&T performed the October 2011 excavation work; however because the Change Order is not “new evidence” to be considered by this court, Ptak has not submitted any admissible evidence that  such work was performed pursuant to the subcontract.  However, B&T has presented evidence that B&T’s work pursuant to the subcontract was completed in November 2010, and B&T’s involvement in the October 2011 excavation was separate from the subcontract.  Accordingly, triable issues of material fact remain, and Ptak’s motion for summary adjudication of Issue Nos. 1-4 is denied.

 

·         If the tentative ruling is uncontested, it shall become the order of the Court. The moving party shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court. 

 

_____________________________________________________________________


9:00

2

CIV 518012    REZA SAFAIE VS. MAJID SALIM, ET AL.

 

 

REZA SAFAIE                           BABAK SEMNAR

MAJID SALIM                           KENNETH S. KATZOFF

 

 

MOTION FOR TERMINATING SANCTIONS FOR FAILURE TO COMPLY WITH THE COURT'S 01/07/14 ORDER BY REZA SAFAIE

 

 

  • Plaintiff REZA SAFAIE’s Motion for Terminating Sanctions is DENIED.  The Court finds that Defendant MAJID SALIM has complied with his discovery obligations pursuant to the Court’s Order following the January 7, 2014 hearing on Plaintiff’s motion to compel further.  Accordingly, terminating sanctions are unwarranted.

 

  • If the tentative ruling is uncontested, it shall become the order of the Court. The moving party shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court. 

 

_____________________________________________________________________


9:00

3

CIV 521145    ATHERTON BUILDERS, INC.

              VS.

              CAL-WEST CONCRETE CUTTING, INC.

 

 

ATHERTON BUILDERS, INC.               JESSHILL E. LOVE

CAL-WEST CONCRETE CUTTING, INC.       THOMAS W. BARTH

 

 

MOTION TO COMPEL FURTHER DISCOVERY RESPONSES AND REQUEST FOR SANCTIONS BY CAL-WEST CONCRETE CUTTING, INC.

 

 

·         AT the request of the moving party this matter is ordered off calendar.

 

 

_____________________________________________________________________


9:00

4

CIV 521163    HOLLY PIETROFESA, ET AL. VS. JENNIFER NIX

 

 

HOLLY PIETROFESA                      HOWARD L. HIBBARD

JENNIFER NIX                          SHARON GLENN PRATT

 

 

MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES BY JENNIFER NIX, JENNIFER NIX

 

 

·         Defendant Jennifer Nix’s Motion to Compel Further Responses To Special Interrogatories [Set 2] and Demand for Production of Documents [Set 1] is GRANTED. Plaintiff’s responses to the interrogatories are deficient pursuant to CCP §2030.220(a), (b) and her responses to the demand for production are deficient pursuant to CCP §2031.010. Plaintiff shall provide specific further responses, without objection, under penalty of perjury in compliance with CCP §§2030.220(a)(b) and 2031.010 on or before April 30, 2014.

 

·         Plaintiff is additionally ordered to pay monetary sanctions pursuant to CCP §2023.010(f) in the amount of $1,180.00 [a total of 4 hours at $280.00 per hour plus the $60 filing fee].  The sanction shall be paid on or before May 5, 2014. 

 

 

·         If the tentative ruling is uncontested, it shall become the order of the Court. The moving party shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court. 

 

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9:00

5

CIV 524199    EDWARD SEPULVEDA, ET AL. VS. BANK OF AMERICA, ET AL.

 

 

EDWARD SEPULVEDA                      MAZEN SALFITI

BANK OF AMERICA, N.A.                 MARK JOSEPH KENNEY

 

 

DEMURRER TO 1st Amended COMPLAINT of SEPULVEDA BY BANK OF AMERICA, N.A., E*TRADE BANK

 

 

  • The hearing on this Demurrer by Defendants, Bank of America and E*Trade Bank, to the First Amended Complaint is continued to May 6, 2014 so that it can be heard together with the Demurrer to the First Amended Complaint brought by Defendant Specialized Loan Servicing, LLC. The hearing for both Demurrers shall be on May 6, 2014 in the Law & Motion Dept. at 9:00 a.m.

 

_____________________________________________________________________


9:00

6

CIV 525829    DEPARTMENT OF FAIR EMPLOYMENT & HOUSING

              VS.

              WAYNE MCFADDEN, ET AL.

 

 

DEPARTMENT OF FAIR EMPLOYMENT & HOUSING    MEGAN ELSEA

WAYNE MCFADDEN                        WAYNE A. MCFADDEN

 

 

DEMURRER TO COMPLAINT of DEPARTMENT OF FAIR EMPLOYMENT & HOUSING BY WAYNE MCFADDEN, NERY SANTIZO

 

·         The demurrer is overruled as to all causes of action.  Plaintiff has alleged facts sufficient to show intentional discrimination through disparate treatment as well as the publication of a discriminatory statement. 

 

 

MOTION TO STRIKE THE COMPLAINT BY WAYNE MCFADDEN, NERY SANTIZO

 

  • The motion to strike is denied as to all allegations at issue. Plaintiff’s reference to the failed mediation does not disclose anything said during the mediation in violation of Ev. Code §1119.  With respect to the allegations of ¶¶19, 20 and 21 defendants have not shown them to be irrelevant, false or improper nor that they are not drawn in conformity with the law.  The prayer for punitive damages is supported by allegations sufficient to show malice on the part of each defendant.

 

  • If the tentative ruling is uncontested, it shall become the order of the Court. The moving party shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court. 

 

 

_____________________________________________________________________


9:00

7

CIV 526477    R. AGANON VS. MARISSA BASA-REYES, ET AL.

 

 

ROBERT KEITH AGANON                   EUNJI CHO

MARISSA BASA-REYES                    KEVIN K. CHOLAKIAN

 

 

DEMURRER TO COMPLAINT of AGANON BY AMS SERVICING, LLC, BANK OF NEW YORK MELLON, N.A.

 

 

  • SUSTAINED WITHOUT LEAVE TO AMEND as to the Third Cause of Action for Reformation of Contract. This cause of action is barred by the four year statute of limitations.  (CCP § 337.)  Inquiry notice of the terms of the mortgage contract existed at the time of contract formation which occurred more than four years ago.
  • OVERRULED as to the Fourth Cause of Action for Violation of Civil Code Sections 2923.55 and 2923.3. The Federal regulations pertaining to banking, mortgages, or the financial industry do not appear to contradict CCC Sections 2923.3 or 2923.55.
  • OVERRULED as to the Fifth Cause of Action for Violation of Civil Code Sections 2924 and 2924.17. Plaintiff sufficiently alleges that the November 2013 Notice of Default on which the foreclosure was based indicates an inaccurate account of the default in violation of Sections 2924 and 2924.17.
  • If the tentative ruling is uncontested, it shall become the order of the Court. The moving party shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court. 

 

_____________________________________________________________________


9:00

8

CLJ 502045    CITIBANK SOUTH DAKOTA, N.A. VS. NICK J. MAKREAS

 

 

CITIBANK SOUTH DAKOTA, N.A.           NANCY SU

NICK J. MAKREAS                       NELSON W. GOODELL

 

 

MOTION TO CONSOLIDATE CASE BY CITIBANK SOUTH DAKOTA, N.A.

 

 

  • Plaintiff Citibank’s Motion to Consolidate For Trial Only is GRANTED for purposes of trial only. Judicial economy and convenience will be enhanced if these two actions, 502045 and 521342 are consolidated for trial only.

 

  • If the tentative ruling is uncontested, it shall become the order of the Court. The moving party shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court. 

 

_____________________________________________________________________


9:00

9

CLJ 520771    ANITA SIMONI VS. KRISTINA ZAHARIAS, ET AL.

 

 

ANITA SIMONI                          MICHELL NUNEZ

KRISTINA ZAHARIAS

 

 

APPLICATION FOR WRIT OF POSSESSION AND TEMPORARY RESTRAINING ORDER.

 

 

  • Plaintiff ANITA SIMONI’s Application for Writ of Possession shall be continued to May 2, 2014 at 9:00 a.m.   Plaintiff has not complied with the requirement for an undertaking or shown that Defendant has no interest in the property.  CCP § 512.060.  Plaintiff’s statement under penalty of perjury in her application for writ or possession at item No. 4 states, “Murphy has enormous value to Plaintiff.  There’s no amount of undertaking that Defendant Roe could bond that would adequately compensate Plaintiff for the loss of companionship in the interim.”  Plaintiff further argues in her moving points and authorities that Defendant has stated she has no interest in Murphy; however, Defendant has stated in her opposition that Murphy’s value to her is in his companionship, not monetary value.  This is not unlike the statement of Plaintiff.

 

  • The Court will allow Plaintiff to amend her application for writ should she choose to do so in order solely to augment item No. 4 wherein a monetary value is stated which the Court can then utilize in order to determine the amount of the undertaking which would be required should the Plaintiff’s motion be granted.  If no amended application is filed and served then at the next court hearing, the Plaintiff’s motion will be DENIED.

 

  • If the tentative ruling is uncontested, it shall become the order of the Court. The moving party shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court. 

 

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POSTED:  3:10 PM

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