April 24, 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 24, 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 440930††† MIKE ROSEN VS. LEGACY QUEST

 

 

MIKE ROSEN††††††††††††††††††††††††††† PRO/PER

LEGACY QUEST††††††††††††††††††††††††† BRADLEY KASS

 

 

MOTION TO ENTER THE ORDER ON TENTATIVE RULING DENYING MOTION BY KING WAH RESTAURANT, INC., YUE QIAO LUO, XIAO YAN CHEN

 

 

         This matter is continued to Friday, April 25, 2014 at 9:00 a.m. in Department 23, the Honorable Judge Raymond Swope.

 

 

_____________________________________________________________________


9:00

2

CIV 496704††† NETSUITE, INC. VS. SIPCO COMPONENTS GROUP, INC.

 

 

NETSUITE, INC.††††††††††††††††††††††† JAYNE A. PEETERS

SIPCO COMPONENTS GROUP, INC.††††††††† DAVID S. ROSENBAUM

 

 

MOTION TO ENFORCE SETTLEMENT BY NETSUITE, INC.

 

         By way of signed stipulation, this matter is continued to May 20, 2014.

 

_____________________________________________________________________


9:00

3

CIV 500541††† PACIFIC BELL TELEPHONE COMPANY

††††††††††††† VS.

††††††††††††† MITCHELL ENGINEERING, ET AL.

 

 

PACIFIC BELL TELEPHONE COMPANY††††††† GERARD J. DONNELLAN

MITCHELL ENGINEERING††††††††††††††††† WILLIAM A. BOGDAN

 

 

MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION OF ISSUES BY MITCHELL ENGINEERING, MITCHELL ENGNEERING/OBAY ASHI CORP JOINT VENTURE, CITY OF SOUTH SAN FRANCISCO, OBAYASHI CORPORATION AGAINST PACIFIC BELL TELEPHONE COMPANY

 

         Cross-Complainants MITCHELL ENGINEERING; CITY OF SOUTH SAN FRANCISCO; MITCHELL ENGINEERING/OBAYASHI CORPORATION JOINT VENTURE; and OBAYASHI CORPORATION (collectively ďMITCHELLĒ)ís Motion for Summary Adjudication is GRANTED as to Cross-Defendant JMBís duty to defend the City of South San Francisco.

 

         The contract between JMB and the City does require Cross-Defendant JMB to defend the City ďfrom any suits or actions at law or in equity for damages caused, or alleged to have been caused, by reason of any of the aforesaid operations . . .Ē Paragraph 21 of the July 26, 2007 agreement. JMBís argument that there is no evidence that they caused any of the damage to PacBellís equipment is unavailing. The agreement states that they have to defend the City for damages alleged to have been caused by JMB. And PacBell has alleged that JMB and/or the City caused those damages. JMBís contractual duty to defend was triggered as soon as the incident was alleged to have been caused by JMBís operations. Crawford v. Weather Shield Mfg, Inc. (2008) 44 Cal 4th 541, 553-54. The 2007 contract required JMB to assume the cityís defense in this suit as soon as plaintiff alleged the incident arose out of JMBís work. Neither JMB nor its carrier has provided the protection for which the parties bargained.

 

  • Cross-Complainants MITCHELL ENGINEERING; CITY OF SOUTH SAN FRANCISCO; MITCHELL ENGINEERING/OBAYASHI CORPORATION JOINT VENTURE; and OBAYASHI CORPORATION (collectively ďMITCHELLĒ)ís Motion for Summary Adjudication is DENIED as to Cross-defendant JMBís duty to defend Mitchell as a 3rd party beneficiary.

 

  • The moving parties have not met their initial burden of showing that Mitchell was an intended 3rd party beneficiary of the contract between JMB and the City: They have to demonstrate that the contract was intended to confer a benefit on the specific third-party. Neverkovec v. Fredericks(1999)74 Cal App 4th 337, 348-49. Mitchell has not put forth any evidence showing that it was an intended third-party beneficiary of the JMB/City contract. See material facts 14-22. None of these facts establish that Mitchell was a 3rd party beneficiary of the July 26, 2007 contract between JMB and the City. The defense and indemnity provision in the contract [∂21 of the agreement] does not support the moving partiesí contentions. Neither Mitchell nor the City has submitted any evidence to support its contention that its interpretation of agent was what was intended by the City and JMB when they entered into the subject contract. At the very least, triable issues of material fact exist as to whether or not they intended Mitchell to be an intended 3rd party beneficiary. See Cross-Defendantís disputed material facts 14, 15, 16, 19, 21. And since Cross-complainants have not established the existence of a duty, they have also failed to establish a breach of that duty. See disputed material facts 23, 24, 28, 30.

 

  • 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 Courtís ruling for the Courtís 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

4

CIV 509890††† ABRAHAM J. SEVILLA, ET AL. VS. JPMORGAN CHASE, ET AL.

 

 

ABRAHAM J. SEVILLA††††††††††††††††††† LAURA FURUTA

JP MORGAN CHASE BANK, N.A.††††††††††† MARK BLOCK

 

 

MOTION FOR RECONSIDERATION OF COURT'S ORDER RE MOTION FOR MSJ BY ABRAHAM J. SEVILLA, AMINTA H. SEVILLA, ANTONIO URIBE

 

         Motion for Reconsideration is DENIED.This Court has no jurisdiction to hear this motion, as judgment was entered in favor of Defendant on 25, 2014.After entry of judgment, the superior court does not have jurisdiction to entertain or decide a motion for reconsideration.In re Marriage of Condon (1998) 62 Cal.App.4th 533, 541, fn. 8 [73 Cal.Rptr.2d 33]; Betz v. Pankow (1993) 16 Cal.App.4th 931, 937-938 [20 Cal.Rptr.2d 841].); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 859, fn. 29.

 

         If the court were vested with authority to consider the merits, the motion would still be denied. Plaintiffs fail to present any new or different facts, circumstances, or law that would warrant reconsideration of the Courtís February 13, 2014 Order granting summary judgment in favor of Defendant JP MORGAN CHASE BANK, N.A. pursuant to Code Civ. Proc. ß 1008(a).Plaintiffs are required to demonstrate not only that ďnew or different facts, circumstances, or lawĒ exist, but also provide a satisfactory explanation for the failure to produce that evidence at an earlier time.New York Times Co. vs. Superior Court (2005) 135 Cal.App.4th 206, 212.The purchase of Encore by Bear Stearns, and the subsequent purchase of Bear Stearns by JP Morgan Chase is not a new fact warranting reconsideration.The transfer of the loan in question here from Encore to Bear Stearns, and then from Bear Stearns to JP Morgan Chase was known at the time of the hearing on the motion for summary judgment. Secondly, Plaintiffs do not address in their motion how this ďnew evidenceĒ overcomes the statute of limitations bar to prosecution of their claims.

 

 

_____________________________________________________________________


9:00

5

CIV 522357††† SILVI RIDER VS. AUTO CAR, INC., ET AL.

 

 

SILVI RIDER†††††††††††††††††††††††††† ROBERT G. PADRICK

AUTO CAR, INC.††††††††††††††††††††††† ELIZABETH L. KOLAR

 

 

DEMURRER TO COMPLAINT of RIDER BY AUTO CAR, INC., AMERICAN HONDA FINANCE CORPORATION

 

 

         This was originally heard on 1/30/14. At the request of the plaintiff, the matter was continued to see if the plaintiff was going to file a notice of appeal in Sacramento County. Consequently, the court continued the matter that specifically stated that if no further filing was made in Sacramento County, the tentative ruling for the January 30, 2014 hearing would be adopted.There being no evidence of Plaintiff having timely filed a notice of appeal, the tentative ruling is now adopted.

 

         Defendantsí demurrer is sustained without leave to amend as to all causes of action.The causes of action alleged in the this action are based on the same primary right as those litigated in the partiesí arbitration proceedings.†† On January 17, 2014, a petition to confirm the arbitration award in defendantsí favor was granted in Sacramento Superior Court.The minute order indicates a judgment is to be submitted for signature

 

         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 Courtís ruling for the Courtís 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

6

CIV 522372††† JONI BOUYEA VS. JAMES BOUYEA

 

 

JONI BOUYEA†††††††††††††††††††††††††† DAVID BUTLER

JAMES BOYEA†††††††††††††††††††††††††† JOSEPH K. BRAVO

 

 

MOTION FOR RELIEF UNDER CCP 473 TO PERMIT FILING OF SECOND AMENDED ANSWER BY JAMES BOYEA

 

 

  • The moving party is ordered to appear in order to submit proof of service of the motion. If adequate proof is presented to the Court, Defendantís Motion for Relief to Permit Second Amend Answer is GRANTED, pursuant to CCP ßß 473(a)(1) and 576, as well as California's liberal policy in permitting amendments to pleadings.Defendant has provided a copy of the Amended Answer(Exhibit B).

         If Defendant fails to submit adequate proof of service, the Motion for Relief to File a Second Amend Answer, pursuant to CCP ßß 473(a)(1) and 576, is DENIED without prejudice.

 

  • 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 Courtís ruling for the Courtís 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 526034MARIE JONES-SMITH, ET AL. VS. KINECTA FEDERAL CREDIT UNION

 

 

MARIE JONES-SMITH†††††††††††††††††††† CHARLES T. MARSHALL

KINECTA FEDERAL CREDIT UNION††††††††† LEORA R. RAGONES

 

 

DEMURRER TO COMPLAINT of JONES-SMITH BY KINECTA FEDERAL CREDIT UNION, DOVENMUEHLE MORTGAGE, INC.

 

 

         The case is stayed pending the bankruptcy filed March 07, 2014.

 

 

_____________________________________________________________________


9:00

8

CIV 527150††† COSMO KLEINOW VS. STATE OF CALIFORNIA-CALTRANS, ET AL.

 

 

COSMO KLEINOW ††††††††††††††††††††††† JONATHAN M. RUTLEDGE

STATE OF CALIFORNIA-CALTRANS††††††††† BELVIN KENT SMITH

 

 

DEMURRER TO 1st Amended COMPLAINT of KLEINOW BY STATE OF CALIFORNIA-CALTRANS

 

 

         The Demurrer is overruled.

 

         The face of the pleading makes clear that Plaintiff is alleging a claim, not for common law negligence, but liability under Government Code Section 835 (dangerous condition of public property). (SeeFirst Amended Complaint ∂∂ Prem.L-4 & Prem.L-5 [alleging ownership of property, notice of dangerous condition, creation by Defendantís employees].)

 

         If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, Plaintiff is directed to prepare a written order consistent with the Courtís ruling for the Courtís 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.

 

_____________________________________________________________________


9:00

9

CLJ 209256††† HILLSDALE INN VS. MAYA ARCTURA FINNIE, ET AL.

 

 

HILLSDALE INN†††††††††††††††††††††††† PRO/PER

MAYA ARCTURA FINNIE

 

 

MOTION TO STRIKE 1ST AMENDED COMPLAINT BY MAYA ARCTURA FINNIE

 

 

  • Defendant Maya Finnieís Motion to Strike the First Amended Complaint is GRANTED. Plaintiff in this action is a limited liability company. A limited liability company does possess the power to sue, be sued, complain and defend in its own name in any action or proceeding. Corporations Code 17001.05.All unlawful detainer complaints are required to be verified. CCP 1166(a)(1). The verification attached to the amended complaint is signed by an individual named by Drendia Garcia. There is nothing in the verification to indicate that she is a member of the limited liability company or has authority to verify the complaint on its behalf. And no opposition has been forthcoming to establish such authority.

 

  • 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 Courtís ruling for the Courtís 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

10

CLJ 209267††† HILLSDALE INN VS. MALETINA ANITIKAPU KAUTAI

 

 

HILLSDALE INN†††††††††††††††††††††††† PRO/PER

MALETINA ANITIKAPU KAUTAI

 

 

MOTION TO STRIKE 1ST AMENDED COMPLAINT BY MALETINA ANITIKAPU KAUTAI

 

  • Defendant Kautaiís motion to strike the 1st amended complaint is GRANTED. Plaintiff in this action is a limited liability company. A limited liability company does possess the power to sue, be sued, complain and defend in its own name in any action or proceeding. Corporations Code 17001.05. All unlawful detainer complaints are required to be verified. CCP 1166(a)(1). The verification attached to the amended complaint is signed by an individual named Drendia Garcia. There is nothing in the verification to indicate that she is a member of the limited liability company or has authority to verify the complaint on its behalf. And no opposition has been forthcoming to establish such authority.

 

  • 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 Courtís ruling for the Courtís 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

11

CLJ 501310††† CAPITAL ONE BANK USA, N.A. VS. JUAN F. ABITO

 

 

CAPITAL ONE BANK USA, N.A.††††††††††† MARK D. WALSH

JUAN F. ABITO

 

 

MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT BY JUAN F. ABITO

 

 

  • Defendantís motion to set aside the default and default judgment is denied.Plaintiff filed a proof of service signed by a registered process server showing that personal service had been made.Evid. Code ß647.Although Defendant filed a declaration disputing service, defendant failed to provide any evidence showing where he resided on 1/31/11, the date service was made.Although not critical to the Courtís decision in light of the proof of personal service, not service by mail as alleged, it is of note to point out that Defendant has provided inconsistent dates as to the foreclosure on the Greenview Dr. property [see Para. 4 and 9]

 

  • Moving attorney is directed to prepare a written order consistent with the Courtís ruling for the Courtís 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 Lisa A. Novak, Department 13.

 

 

_____________________________________________________________________


9:01

12

CLJ 209389††† TEMALETI LATU VS. NELLIE BRENNAR

 

 

TEMALETI LATU†††††††††††††††††††††††† PRO/PER

NELLIE MARIA BRENNAR

 

 

MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT BY NELLIE MARIA BRENNAR

 

 

  • Defendant Nellie Maria Brennerís Motion to Quash is GRANTED.Plaintiff has failed to comply with CCP ß1166 and has failed to attach either the written rental agreement or the 30 day notice to vacate which was allegedly served on 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 Courtís ruling for the Courtís 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.

 

_____________________________________________________________________

 


In the Superior Court of the State of California

In and for the County of San Mateo

 

WRITS AND RECEIVERS CALENDAR

Judge: Honorable GEORGE A. MIRAM

Department 28

 

400 County Center, Redwood City

Courtroom 2F

 

APRIL 24, 2014

 

If you plan to appear on any case on this calendar,

you must call (650) 363-4511 before 4:00 p.m. and you must give notice also before 4:00 p.m. to all parties of your intent to appear pursuant to California Rules of Court 3.1308(a)(1).

 

Case†††††††† ††††††††Title / Nature of Case

2:00

1

CIV 527946††† PEOPLE OF THE STATE OF CALIFORNIA

††††††††††††† VS.

††††††††††††† JAMES D. KRISTOFFERSON

 

 

PEOPLE OF THE STATE OF CALIFORNIA†††† WILLIAM B. CONNERS

JAMES D. KRISTOFFERSON

 

 

MOTION FOR PRELIMINARY INJUNCTION BY PEOPLE OF THE STATE OF CALIFORNIA

 

         DENIED.There is no evidence in the file showing that the summons and complaint as well as the actual motion have been served on the defendant.

 

 

_____________________________________________________________________


2:00

2

CIV 527602††† BLACKBERRY LIMITED VS. SEBASTIEN MARINEAU-MES

 

 

BLACKBERRY LIMITED††††††††††††††††††† CHRISTOPHER J. KELLER

SEBASTIEN MARINEAU-MES

 

 

PRELIMINARY INJUNCTION

 

         DENIED.There is an adequate remedy at law, to wit, damages for breach of contract.Additionally, there is an inadequate demonstration of interim harm that the plaintiff will suffer if the injunction is denied as compared to the harm defendant will suffer if the injunction issues, although the demonstration of likelihood of success on the merits has been met.

 

 

_____________________________________________________________________


2:00

3

CIV 527719††† ROBIN THOMAS CORPORATION VS. LINDA L. WILSON, TRUSTEE

 

 

ROBIN THOMAS CORPORATION††††††††††††† BRENDAN P. BREWER

LINDA L. WILSON

 

 

ORDER TO SHOW CAUSE RE: PRELIMINARY INJUCTION AND TEMPORARY RESTRAINING ORDER BY ROBIN THOMAS CORPORATION

 

 

         The objections to the declaration of Viola are sustained.While the evidence as regards to access from Old County Road is contradictory, the Plaintiff has made a sufficient demonstration of irreparable harm and liklihood of success on the merits to warrant relief pending trial.The Preliminary Injunction is GRANTED. An undertaking in the amount of $70,000 is ordered pursuant to CCP section 529.

 

 

_____________________________________________________________________


2:00

4

CIV 355792†† RE: SAN GREGORIO CREEK STREA

 

 

SAN GREGORIO CREEK STREAM SYSTEM

RANDOLPH P. RHODES

 

 

Peter Marchi & Son, Inc's Petition to Modify Final Decree & Approve Transfer of Water

 

 

         GRANTED.

 

 

_____________________________________________________________________


2:00

5

CIV 525919††† CHARLES TANIGUCHI, ET AL. VS. RESTORATION HOMES, LLC

 

 

CHARLES TANIGUCHI†††††††††††††††††††† JESSICA GALLETTA

RESTORATION HOMES, LLC††††††††††††††† JONATHAN M. ZAK

 

 

PRELIMINARY INJUNCTION

 

 

         This matter is continued to May 22, 2104 at 2:00 PM.

 

 

_____________________________________________________________________

 

 

 

 


POSTED: 3:00 PM

 

 

 

© 2014 Superior Court of San Mateo County