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 18, 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 507680       STEVEN EDELMAN, ET AL. VS. NICHOLSON-LAMB VENTURE LP,

                   ET AL.

 

 

STEVEN EDELMAN                        G. SCOTT EMBLIDGE

NICHOLSON-LAMB VENTURE LP             KRISTOFER W. BIORN

 

 

MOTION TO DETERMINE GOOD FAITH SETTLEMENT BY NICHOLSON-LAMB VENTURE LP AND WOODSIDE ROAD INVESTORS LLC

 

 

·         Defendants NICHOLSON-LAMB VENTURE, L.P. and WOODSIDE ROAD INVESTORS, LLC’s unopposed Motion for Determination of Good Faith Settlement is DENIED WITHOUT PREJUDICE. 

 

·         The Court notes that on October 17, 2014, attorney George H. Stern filed a number of documents on behalf of Defendants JOHN NICHOLSON and W. JOHN MANAGEMENT, LLC, including an ex parte application to continue trial.  One of the grounds of the ex parte application was that the NICHOLSON Defendants were aware there had been a conditional settlement between moving Defendants and Plaintiffs, and intended to contest its good faith.  As it appears the NICHOLSON Defendants are now represented, the Proof of Service accompanying the moving papers demonstrating that they were served at NICHOLSON’s home address appears insufficient.  Accordingly, the Motion is denied without prejudice for lack of proper 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 Elizabeth K. Lee, Department 17.

_____________________________________________________________________


9:00

2

CIV 518367       GEORGE KANAKIS VS. ERENDIRA JUDITH OLIVAS

 

 

GEORGE KANAKIS                        JOHN P. KRISTENSEN

ERENDIRA JUDITH OLIVAS                KEVIN J. GRAY

 

 

MOTION TO DEEM MATTERS ADMITTED AND REQUEST FOR MONETARY SANCTIONS BY ERENDIRA JUDITH OLIVAS

 

 

·         Defendant's Motion to Deem Matters Admitted is DENIED as MOOT. Plaintiff served verified responses before this motion hearing date that are substantially in compliance with the Code of Civil Procedure § 2033.220. Defendant did not timely notice the motion as required by Code of Civil Procedure § 1005(b).

 

·         Defendant’s Motion for Monetary Sanctions is DENIED. Professional courtesy requires granting an opponent a brief continuance, if client will suffer no detriment.  Defendant did not timely notice the Motion as required by Code of Civil Procedure § 1005(b).

 

·         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 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 Elizabeth K. Lee, Department 17.

 

_____________________________________________________________________


9:00

3

CIV 523261       APELU FINAUGA, ET AL. VS. REMY'S QUALITY               

                   CONSTRUCTION, INC., ET AL.

 

 

APELU FINAUGA                         CONOR GRANAHAN

REMY'S QUALITY CONSTRUCTION, INC.     DAN BEATTY

 

 

MOTION TO TRIFURCATE ISSUES OF VICARIOUS LIABILITY, ALTER EGO THEORY OF LIABILITY AND DAMAGES FOR TRIAL BY REMY J. SIJBRANT

 

·         This Motion is granted. The issue of vicarious liability shall be tried first. If necessary, the issue of alter ego relationship shall be tried second. If necessary, all remaining issues shall be tried last.

 

·         Defendant presents evidence that trial of vicarious liability and alter ego will take little more than two or three hours each, compared with all parties’ estimates in their respective Case Management Statements (filed in November and December 2013) that the entire trial will take between three and seven days. Plaintiffs’ only contention that trial of these issues will take longer is their incorrect position that they will be required to present evidence of liability, injuries, and damages. Plaintiffs’ damages are not an element in determining whether RQC’s driver was acting in the course and scope of employment, nor are damages an element in determining whether an alter ego relationship existed between RQC and Remi Sijbrant. 

   

·         If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Defendant Sijbrant 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.

_____________________________________________________________________


9:00

4

CIV 525175       CRACE B. PANGILINAN VS. WILBERT ALVAREZ, ET AL.

 

 

GRACE B. PANGILINAN                   ANANT N. PRADHAN

WILBERT ALVAREZ                       CHARNEL JAMES

 

 

MOTION TO BE RELIEVED AS COUNSEL FILED BY WILBERT ALVAREZ, OPHELIA ALVAREZ AND JAI HOMES, 2500 TARA LANE, SOUTH SAN FRANCISCO, CA 94080 BY CHARNEL JAMES

 

 

·         Counsel Charnel James’ unopposed Motion to Withdraw as counsel for Defendants Wilbert Alvarez, Ophelia Alvarez and JAI Homes is DENIED without prejudice. Counsel has filed this Motion using only one of the required forms [the Notice of Motion]. She has not use the required declaration form  [MC-052] and has not submitted the required proposed order [MC-053]. Additionally, she has failed to provide proof of service establishing that she provided notice to both her client and opposing counsel.

 

·         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.

_____________________________________________________________________

                           


9:00

5

CIV 525829       DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING VS. WAYNE

                   MCFADDEN, ET AL.

 

 

DEPARTMENT OF FAIR EMPLOYMENT         MEGAN ELSEA

WAYNE MCFADDEN                        BRANDON R. MCKELVEY

 

 

MOTION FOR SUMMARY JUDGMENT AS TO COMPLAINT of DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING FILED BY DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING

 

·         Plaintiff's request for judicial notice is granted.

 

·         Defendant's objections 1, 2, 3, 4, 6, 7, 8, 9, 10, and 11 are overruled and objection 5 is sustained.

 

·         Plaintiff's objections 2, 3, 4, 5, 8, 9, 10, 11 and 13 are overruled and objections 1, 6, 7 and 12 are sustained.

 

·         Summary adjudication is denied as to issue #1 (1st cause of action for familial status discrimination-Govt Code §12955(a)) on the following grounds.  Plaintiff has presented no UMF regarding the requested punitive damages.  A Motion for Summary Adjudication shall be granted only if it completely disposes of a cause of action.  CCP §437c(f)(1).

 

·         The Court notes that the 2012 version of rule #15, which bans young children from playing in any of the common areas in the apartment complex appears to be a facially discriminatory restriction on the use of apartment facilities by tenant children.  On this issue, Plaintiff has made a prima facie showing of discrimination. Fair Hous. Cong. v. Weber, 993 F. Supp. 1286, 1289 (C.D. Cal. 1997); Pack v. Fort Washington II, 689 F. Supp. 2d 1237 (E.D. Cal. 2009); United States v. Plaza Mobile Estates, 273 F. Supp. 2d 1084, 1090 (C.D. Cal. 2003).

 

·         The Court also notes that it appears from the UMF that Defendant has not met its burden of showing a triable issue of material fact exists with respect to the discriminatory restriction.  (UMF #9, UMF #7, UMF #11, UMF #12 – 13).  Although Defendant appears to be disputing UMF #7 by arguing that the 2012 version of rule #15 was never enforced and/or there was a legitimate business reason for the new version, they have not articulated a legitimate reason for a wholesale ban on children that was originally put in place.  They merely argue that the rule was never enforced.  This is insufficient to shift the burden back to Plaintiff.  However because there were no UMF’s concerning punitive damages – a part of the 1st Cause of Action – Plaintiff’s Motion for Summary Adjudication fails.

 

·         Summary Adjudication is denied as to Issue #2 (2nd Cause of Action for publication of discriminatory statements relating to housing accommodations-Govt Code §12955(c)).  Plaintiff has presented no UMF, in connection with this cause of action, regarding damages suffered by Project Sentinel. A Motion for Summary Adjudication shall be granted only if it completely disposes of a cause of action.  CCP §437c(f)(1).

 

·         The Court notes that rules restricting children’s play have been found to violate the federal equivalent of §12955(c).  The 2012 version of rule #15, which bans children's play in outside areas is facially discriminatory.  Although Defendants have offered a justification for requiring supervision (as set forth in the 2013 version of rule #15), they have offered no justification for the complete ban on children's play set forth in the 2012 version. 

 

·         The Court notes that rules restricting children’s play have been found to violate the federal equivalent of §12955(c).  The 2012 version of rule #15, which bans children's play in outside areas is facially discriminatory.  Although Defendants have offered a justification for requiring supervision (as set forth in the 2013 version of rule #15), they have offered no justification for the complete ban on children's play set forth in the 2012 version.  

 

·         The language of the 2012 version of rule #15 states the common areas shall not be used for children's play, thus banning children from areas outside their apartment.  Requiring supervision of young children (and prohibiting certain types of activities and blocking walkways) could serve legitimate safety interests.  However, a wholesale ban on children playing outside their apartment would seem to be overbroad.  While Defendants have articulated reasons for requiring supervision (which is required by the 2013 version of Rule #15), they have not articulated a legitimate reason for banning children as required by the 2012 version.  They also assert that children were never banned (i.e., the rule was never enforced).  Nonetheless, the 2012 version of the rule was “published”.  Defendants have failed to provide any legitimate business justification for the 2012 version of Rule #15.  But for the failure to offer UMF regarding Project Sentinel, summary adjudication would appear to be proper for this cause of action as well.

 

·         Summary Adjudication is granted as to Issue #3 (3rd Cause of Action for familial status discrimination in public accommodations- Govt Code §12955(d) and CC §51).  Plaintiff has presented evidence of the 2012 version of rule #15 (UMF #7, 11), which stated common areas should not be used for young children's play and was therefore facially discriminatory on its face.

 

·         Defendants have not met their burden of showing there is a triable issue of material fact as to this cause of action. UMF #12-13 assert Project Sentinel is a non--profit fair housing organization whose primary function is to assist individuals with housing problems.  UMF #15 asserts that as a result of this investigation, Project Sentinel diverted its resources from its routine fair housing counseling and investigation.  

 

·         Defendants dispute UMF #6 that Partida had lived at Poplar Arms since 2009, stating that she began leasing in 2008 but this does not appear to be a material fact.

 

·         It is unclear whether Defendants are disputing UMF #7.  They state it is undisputed that the rules in place state the common areas cannot be used for unsupervised play and state the rules were instituted to protect the safety of Poplar Arms tenants, including the young children.  Defendants go on to state there were never any rules/regulations that children cannot play in the common areas and were never prohibited from doing so.  The rules simply required supervision of young children due to legitimate safety concerns.  Defendants seem to be arguing that the 2012 version of rule #15 was never enforced and/or there was a legitimate business reason for the new version.

 

·         Defendants dispute UMF #10, arguing there is no evidence supporting this undisputed fact. UMF #10 cites to ¶13 of the Lopez declaration, in which he states that given the proximity of the front of the building to the street, it is imperative that small children be supervised.  This declaration does not show that Lopez told Partida to supervise her children.  UMF #10 also cites to Defendants' responses to investigative interrogatories, interrogatory number 4 which states that management did not tell children not to play outside and that Lopez spoke numerous times directly with Partida telling her she needed to have supervision for her children in the common area.  This interrogatory response shows Lopez told Partida to supervise her children, not that they could not play outside. 

 

·         Defendants do not dispute UMF12, 13 and 15, but assert they are not material.  Plaintiff states these UMF are material to Project Sentinel’s standing as an aggrieved person and real party in interest. Gov't Code §12927(g) defines “Aggrieved person” to include "any person who claims to have been injured by a discriminatory housing practice or believes that the person will be injured by a discriminatory housing practice that is about to occur." Sisemore v. Master Fin., Inc. (2007) 151 Cal. App. 4th 1386, 1426 held that since Project Sentinel had alleged it had been required to divert scarce resources to address Defendant’s alleged wrongful conduct, it was a “person aggrieved”  under  §12989.1 and had standing to assert a FEHA claim.

 

·         Defendants also dispute UMF #14, arguing that (1) whether or not Partida was "stressed" is not a material fact for purposes of Plaintiff's Motion for Summary Judgment and (2) Partida admitted in deposition there were many other stressors in her life.  If this is not a material fact, then Defendants have not raised a triable issue of material fact by disputing it.  Whether or not Partida was stressed from trying to keep her children from playing in the common areas would tend to show whether or not she was harmed by the rule.  Whether or not Partida had other stressors in her life, does not disprove that she was stressed from trying to comply with rule.

 

·         Summary Adjudication is granted as to issue number 4, statutory damages under the Unruh act. Plaintiff has presented evidence of the 2012 version of rule #15 (UMF #7, 11), which stated common areas should not be used for young children's play and was therefore facially discriminatory on its face.

 

·         Plaintiff cites to Wilson v. Haria & Gogri Corp., 479 F. Supp. 2d 1127, 1135 (E.D. Cal. 2007), where the court stated “The Unruh Act provides for a minimum damages of $4,000 per violation” and found on Summary Judgment Plaintiff was entitled to $52,000 for Defendant's thirteen violations of the Unruh Act and Hubbard v. Twin Oaks Health & Rehab. Ctr., 408 F. Supp. 2d 923, 932 (E.D. Cal. 2004), where the court granted partial summary judgment as to Plaintiff’s Unruh Act claim and awarded Plaintiff $60,000 (the statutory minimum of $4,000 x 15 violations).  In Hubbard, Defendant had challenged Plaintiff's ability to recover damages on the ground she could not prove actual damages, but the court noted that the Ninth Circuit explained that proof of actual damages was not a prerequisite to recovery of statutory minimum damages.  Hubbard cited to Koire v. Metro Car Wash (1985) 40 Cal. 3d 24, 33, which explained that §52 provided for minimum statutory damages for every violation of §51, regardless of the Plaintiff's actual damages.

 

·         Plaintiff asserts the Poplar Arms is a housing accommodation within the meaning of Govt Code §12955 (UMF #1), McFadden owns Popular Arms (UMF #2), McFadden leased a unit at Poplar Arms to Partida (UMF #3), who lived there with her 4 minor children (UMF #4-6).  In 10/12, McFadden issued or approved rule #15 which stated "the halls, entrance ways, paths, sidewalks, parks, parking areas, and other common areas, should not be obstructed nor used for young children's play."  (UMF #7) In 2013, rule #15 was changed to state that common areas should not be obstructed nor used for young children's unsupervised play (UMF #11).  Partida received copies of the 2012 and 2013 rules (UMF #8). In 2012, Lopez managed Poplar Arms (UMF #9 and said children needed to be supervised when playing in the common area (UMF #10) Partida was stressed from trying to keep her children from playing in the common areas (UMF #14).

 

·         Project Sentinel is a non--profit fair housing organization (UMF #12, 13) and had to diverge its resources from its routine fair housing counseling, investigation and referral services in San Mateo County as a result of the discrimination of Poplar arms (UMF #15).

 

·         These are the same UMF that were raised in support of issue number 3 (the 3rd Cause of Action for violation of the Unruh Act).  Defendants made the same responses.  The Court finds that Defendant has failed to carry its burden of showing there are material facts in dispute for the same reasons as stated above.

 

·         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 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 Elizabeth K. Lee, Department 17.

 

 

MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION OF ISSUES BY WAYNE MCFADDEN AND NERY SANTIZO AGAINST DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING

 

 

·         Plaintiff's objections to Defendants' evidence are sustained as to objections 13, 19, 23, 32 and 35 and overruled as to the rest.

 

·         Defendants' objections to Plaintiff's evidence are sustained as to objections 7 and 18 and overruled as to the rest.

 

·         Defendants filed a notice of late filing, arguing that as Plaintiff's reply was filed 2 days late, it should not be considered.  DFEH has filed an opposition to the Notice of Late filing arguing that as the 5th day before the hearing fell on a Saturday, filing the reply on the following Monday was appropriate.  CCP §437c requires the reply shall be filed/served “not less than five days” preceding the hearing date.  5 days before the original 12/4 hearing date was Saturday, 11/29.  The reply was filed on Monday, 12/1.  CCP §12a(a) states: ”If the last day for the performance of any act provided or required by law to be performed within a specified period of time is a holiday, then that period is hereby extended to and including the next day that is not a holiday. For purposes of this section, “holiday” means all day on Saturdays.” “If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate.” CRC 3.1300.  The court has considered the reply in making its ruling.

 

·         Summary Judgment is denied as Plaintiff has raised triable issues of material fact as to issues 2, 3, 4, 5 and 6.

 

·         Summary Adjudication as to issue #2 is denied as Plaintiff has raised a triable issue of material fact as to whether or not Santizo to act as manager.  Plaintiff has disputed UMF 3, 5, 6, 8, 9 and 11 and asserted additional UMF.

 

·         Summary Adjudication is denied as to issue #3.  Defendants failed to address the 2012 version of rule #15.  Plaintiff has raised a triable issue of material fact by disputing UMF #15 in 17 and presented additional UMF 42 and 43.

 

·         Summary Adjudication is denied as to issue #4.  Defendants failed to address the 2012 version of rule #15.  Plaintiff has raised a triable issue of material fact by disputing UMF #17 and raising additional UMF #48 and 49.

 

·         Summary Adjudication is denied as to issue #5.  Defendants failed to meet their burden of showing that Plaintiff has no evidence regarding discriminatory intent.  Furthermore, Plaintiff has raised a triable issue fact by disputing UMF #17 and raising additional UMF # 47 and 48.

 

·         Summary Adjudication is denied as to issue #6.  Plaintiff has raised a triable issue of material fact by disputing UMF #41 unraced additional UMF regarding the 2012 version of rule #15 (UMF 71, 72).

 

·         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 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 Elizabeth K. Lee, Department 17.

 

 

_____________________________________________________________________


9:00

6

CIV 527484       ARCH SPECIALTY INSURANCE COMPANY VS. 14TH & JACKSON,

                   LLC, ET AL.

 

ARCH SPECIALTY INSURANCE COMPANY      ANDREW J. ULWELLING

14TH & JACKSN, LLC

 

 

DEMURRER TO CROSS-COMPLAINT of CENTRIX BUILDERS, INC. BY WRAPID SPECIALTY, INC.

 

 

·         This matter appears to be moot.  On December 8, 2014, cross-complainant Centrix Builders, Inc. gave notice of its intent to file a First Amended Cross Complaint in lieu of an Opposition to Cross-Defendant Wrapid Speciality’s Demurrer.

 

·         In the event that a First Amended Cross Complaint is not filed before the hearing, the Court intends to sustain the unopposed Demurrer on the grounds that Centrix’s Cause of Action for Breach of Contract fails due to the failure to allege the existence of a contract between Centrix and Wrapid.  The Causes of Action for  Contractual Indemnity, Equitable Indemnity, and Contribution all fail for the same reason.  The Demurrer is stained with leave to amend.

 

·         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.

 

_____________________________________________________________________

                           


9:00

7

CIV 528869       GAIL CANNIS, ET AL. VS. CITY OF SAN CARLOS, ET AL.

 

 

GAIL D. CANNIS                        JILL E. FOX

CITY OF SAN CARLOS                    TODD H. MASTER

 

 

DEMURRER TO COMPLAINT of GAIL CANNIS, TRUSTEE OF THE CANNIS FAMILY TRUST ESTABLISHED UNDER DECLARATION OF TRUST DATED SEPTEMBER 6, 1993 BY CITY OF SAN CARLOS AND CITY OF SAN CARLOS PLANNING COMMISSION

 

 

·         Demurrer is overruled.

 

·         The cases of Palazzolo v Rhode Island (2001) 533 U.S. 606 and Suitum v Tahoe Regional Planning Agency (1997) 520 U.S. 725 are consistent with Metcalf v. Los Angeles County (1944) 24 Cal.2d 267, 270, cited in Plaintiff’s original opposition to Demurrer. Defendant concedes that when a present zoning designation does not permit any variance or limited development, the finality requirement is met and a landowner’s claim is ripe. Defendant contends only that Plaintiff’s remedy was to seek to amend the City’s General Plan or change the zoning of Plaintiff’s property. Neither option applies to Plaintiff’s claims.

 

·         Plaintiff does not challenge a duly enacted zoning change. Rather, she alleges that Defendant’s actions were unlawful because the change was enacted without notice or due process. To accept Defendant’s argument would mean that cities could freely enact zoning changes without complying with their own procedural requirements, as Plaintiff alleges here, then place the burden on private landowners to apply for their property to be zoned back to its previous designation.

 

·         Defendant/Respondent shall file and serve an Answer/Response no later than December 16, 2014.

 

·         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 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. 

 

_____________________________________________________________________


9:00

8

CIV 531157       HARBINGER GROUP INC., ET AL. VS. KAYE SCHOLER, LLP

 

 

HARBINGER GROUP INC.                  JEFFREY G. KNOWLES

KAYE SCHOLER, LLP                     STEVEN S. ROSENTHAL

 

 

APPLICATION TO APPEAR AS COUNSEL PRO HAC VICE BY SHELDON L. SOLOW

 

 

·         Sheldon Solow’s Application to Appear as Counsel Pro Hac Vice for Defendant Kaye Scholer, LLP in this matter is GRANTED pursuant to California Rules of Court, Rule 9.40. Counsel has paid the $50 fee to the state bar as required by Rule 9.40(e) and the $500 fee now required by the San Mateo County Superior Court pursuant to Govt. Code 70617.  He has met all of the other requirements of CRC 9.40, which are the only requirements to be eligible for admission pro hac vice.

 

_____________________________________________________________________

                           


9:00

9

CLJ 478427       LVNV FUNDING VS. JOHN HARRIS

 

 

LVNV FUNDING LLC                      ROBERT J. COLCLOUGH

JOHN HARRIS

 

 

MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT, QUASH SERVICE OF SUMMONS AND DISMISSING CASE BY JOHN HARRIS

 

 

·         The Motion to set aside the Default and Default Judgment is granted pursuant to CCP §473(d).  Defendant has offered evidence sufficient to establish that substitute service of the Summons and Complaint was not made in compliance with CCP §415.20(b).  Defendant’s declaration states that no one named Jane Marret resided at his house.  He admits his sister, Janive Merrit lived with him, but her declaration states that she was not served with any documents on the specified date and time and that, at time of service, her working schedule was from 8:30AM to 4:30 PM.  This evidence is sufficient to rebut any presumption of service arising from the process server’s proof of service and Plaintiff fails to offer any further evidence establishing that service was proper.   The Motion to Quash is granted for the same reason.

 

·         The Motion to Dismiss is also granted.  CCP §583.210(a) states that the Summons and Complaint shall be served within three years after the action is commenced against the Defendant.  For purposes of the statute, the action is commenced at the time the complaint is filed.  Id.  If service is not made within the prescribed time, the action shall be dismissed by the Court on its on Motion or on Motion of any person interested in the action whether named as a party or not.  CCP §583.250.  Here, the action was filed on November 17, 2008, Defendant was not properly served with the Summons and Complaint within three years of that date and Plaintiff offers no evidence that any tolling provision is applicable.

 

_____________________________________________________________________

 

 

In the Superior Court of the State of California

In and for the County of San Mateo

 

Presiding Judge Law and Motion Calendar

Judge: HONORABLE ROBERT D FOILES

Department 21

 

400 County Center, Redwood City

Courtroom 2J

 

DECEMBER 18, 2014

 

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

 you must call (650) 261-5121 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

9:00

1

CIV 521947       MIGUEL SERRATO, ET AL. VS. BOMAG AMERICAS, INC., ET

                   AL.

 

 

MIGUEL SERRATO                        EUSTACE DE SAINT PHALLE

BOMAG AMERICAS, INC.                  MICHELE C. BARNES

 

 

MOTION TO DESIGNATE CASE AS COMPLEX BY MIGUEL SERRATO AND MARIA SERRATO

 

 

·         Appear

 

 

_____________________________________________________________________

 

 

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

 

DECEMBER 18, 2014

 

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

 you must call (650) 261-5128 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 519824       GEORGE CATTERMOLE, ET AL. VS. CALIFORNIA COASTAL

                   COMMISSION

 

 

GEORGE CATTERMOLE                     PRO/PER

CALIFORNIA COASTAL COMMISSION         SHARI B. POSNER

 

 

MOTION FOR JUDGMENT ON WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF BY GEORGE CATTERMOLE AND MARY CATTERMOLE

 

 

·         Continued to January 8, 2015 at 2:00 p.m. on the Court’s own motion to complete review of the administrative record.  No further briefing is requested or shall be considered.

 

_____________________________________________________________________

 


2:00

2

CIV 531157       HARBINGER GROUP INC., ET AL. VS. KAYE SCHOLER, LLP

 

 

HARBINGER GROUP INC.                  JEFFREY G. KNOWLES

KAYE SCHOLER, LLP                     STEVEN S. ROSENTHAL

 

 

ORDER TO SHOW CAUSE RE: WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE BY HARBINGER GROUP INC. AND FIDELITY & GUARANTY LIFE INSURANCE COMPANY

 

 

·         DENIED without prejudice.  The Court declines to issue a Preliminary Injunction without prejudice to renew the request should coordination not be granted.  First, a Demurrer is currently pending.  Secondly, a Coordination Petition is pending in Sacramento seeking to coordinate all five cases which are apparently similar.

 

_____________________________________________________________________


2:00

3

CIV 526257       YASH SHAH VS. DEPARTMENT OF MOTOR VEHICLES

 

 

YASH SHAH                             JAMES E. DUNN

DEPARTMENT OF MOTOR VEHICLES

 

 

PETITION FOR WRIT OF MANDAMUS BY YASH SHAH

 

 

·         The unopposed Petition for Writ is DENIED.  There is no proof of service of the original writ petition or the Notice of Hearing on the DMV.  Lastly, there is no evidence of an administrative record lodged by Petitioner upon which this Court can base a ruling.

 

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CIV 530550       KAUSHAL KANTAWALA VS. DEPARTMENT OF MOTOR VEHICLES

 

 

KAUSHAL KANTAWALA                     MARSANNE WEESE

DEPARTMENT OF MOTOR VEHICLES          KAMALA D. HARRIS

 

 

PETITION FOR WRIT OF MANDAMUS BY KAUSHAL KANTAWALA

 

 

·         DENIED.  Petitioner has failed to sustain his burden of convincing the Court that the DMV’s decision is contrary to the weight of the evidence.  See Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817; Evidence Code section 664.  Applying the Independent Judgment standard, the officer did not need reasonable suspicion to approach Petitioner as a detention is not in issue, rather, an officer may speak to anyone so long as their behavior is not coercive as is the case in any welfare check.  There is no evidence of such coercive behavior.  The officer had reasonable and probable cause to suspect the Petitioner had been driving under the influence as his car was running late at night with the lights on.  Further, Petitioner admitted driving.  The evidence shows Petitioner was properly admonished, but the Petitioner waived this issue in any event by not raising it at the administrative hearing.

 


 

 

 

 

 

 


POSTED:  3:35 PM

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