July 23, 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 GERALD J. BUCHWALD

Department 10

 

400 County Center, Redwood City

Courtroom 8D

 

Thursday, July 21, 2016

 

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.  

 

    Case                  Title / Nature of Case

 

9:00

 

 

Line 1

 

CLJ 535067

IN RE: $ 2,139.00

 

 

 

 

PEOPLE OF THE STATE OF CALIFORNIA

megan wilkins

 

DESHAWN  AUGMON

Claimant

 

 

 

 

MOTION FOR SUMMARY JUDGMENT AS TO CLAIM OPPOSING FORFEITURE OF PEOPLE OF THE STATE OF CALIFORNIA FILED BY PEOPLE OF THE STATE OF CALIFORNIA

 

TENTATIVE RULING:

 

  • GRANTED. The People of the State of California’s unopposed Motion for Summary Judgment [Of Forfeiture] is Granted.

 

  • By this Motion the People seek forfeiture of $2,139 in US currency seized from interested party Deshawn Augmon in August 2015 when he was arrested for unlawful possession of marijuana for sale in violation of Calif. Health & Safety Code § 11359. The Court takes Judicial Notice of Mr. Augmon’s subsequent conviction of that offense on November 23, 2015 (SM County Superior Court #SC084015A).

 

  • Mr. Augmon has filed a claim opposing forfeiture. That claim being opposed by the People by way of this Motion for Summary Judgment. Since a forfeiture action is a civil matter, a motion for summary judgment is an appropriate remedy. People v. One 1964 Chevrolet Corvette Convertible (1969) 274 Cal.App. 2d 720. The Motion and supporting papers have been properly served on Mr. Augmon on April 27, 2016.

 

  • Based on the court's order of December 11, 2015, deeming the Request for Admissions admitted, Plt has met its initial burden under CCP § 437c(p)(1). These admissions establish that Mr. Augmon: exclusively possessed the seized funds on August 6, 2015, [Fact 1], that $2,139 was seized from Mr. Augmon on August 6, 2015, [Fact 2], that the $2,139 are proceeds traceable to an exchange for controlled substances [Fact 3], and that Mr. Augmon has no claim to the currency [Fact 4]. The last triable issue of fact is shown through judicial notice of Augmon’s conviction record in San Mateo County Case No. SC084015A [Fact 5].

 

  • The burden then shifts to the defendant/interested party to raise a triable issue of material fact and he has not done so. Here, Mr. Augmon has not responded and has filed no Opposition.

 

  • Judgment of Forfeiture for Plaintiff is Ordered.

 

  • 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. Proposed form of Order to be submitted directly to Dept. 10 for signature by Judge Gerald J. Buchwald.

 

 

 

 

 

 

 

 

 

9:00

 

 

LINE 2

 

CIV 535500

AHNA BALI VS. HISHAM MOHAMED ADEL, ET AL.

 

 

 

 

 

 

 

 

 

AHNA BALI

CHRISTOPHER B. DOLAN

 

HISHAM MOHAMED ADEL

BRIAN H. GUNN

 

 

 

 

Motion for Leave to File Amended Complaint/Answer

 

TENTATIVE RULING:

 

  • HEARING CONTINUED TO MON. jULY 25, 2016, AT 9:00 AM.

 

  • Defendant Hisham Mohamed Abel’s Motion for Summary Judgment is CONTINUED on the Court’s own motion, and in view of the voluminous submission of Evidentiary Objections to Plaintiff’s Separate Statement of Facts submitted just three days ago, to July 25, 2016 at 9:00 a.m. in the Law & Motion Dept.

 

 

 

 

 

 

 

 

9:00

 

 

Line 3

 

CIV 535133

PEGGY CAI VS. RAYMOND KO, ET AL.

 

 

 

PEGGY CAI

PETER CHAO

 

RAYMOND KO

 

 

 

 

Motion for Leave to File Amended Complaint/Answer

 

TENTATIVE RULING:

 

  • GRANTED. Plaintiff PEGGY CAI’s Motion for Leave to File First Amended Complaint is GRANTED pursuant to Code Civ. Proc. Section 473(a)(1).  Plaintiff is Ordered to file and serve her First Amended Complaint no later than July 29, 2016.

 

·         This is a claim for wrongful constructive termination of employment arising out of alleged sexual harassment and hostile work environment. Plaintiff PEGGY CAI was a waitress working at YAT SING RESTAURANT located at 38 Woodside Plaza, Redwood City.  The Restaurant is owned by Defendant RAYMOND KO and his wife, Millie Ko (who was not named in the original Complaint). 

 

  • Following a change in Counsel over 120 days ago, Plaintiff seeks to amend her Complaint to add certain wage and hour claims, a claim for conversion of tips, and Millie Ko as a named Defendant. Plaintiff’s new Counsel will stipulate to reopening of Plaintiff’s deposition for non-repetitive discovery.

 

  • The Court sees no undue prejudice to Defendants by allowing these proposed amendments. Reasonable amount of time for additional discovery remains before the scheduled trial date of January 3, 2017. California courts generally follow a policy of liberality as to such pleading amendments as are proposed here.

 

  • Defendants’ request for monetary sanctions is DENIED.

 

  • 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 4

 

CIV 533576

COUNTY OF SAN MATEO VS. 2700 MIDDLEFIELD ROAD LLC, ET AL.

 

 

 

 

COUNTY OF SAN MATEO

JOHN D. niBBELIN

 

2700 MIDDLEFIELD ROAD LLC

RONALD D. FOREMAN

 

 

 

 

Motion for Leave TO FILE FIRST AMENDED CROSS-COMPLAINT

 

TENTATIVE RULING:

 

  • GRANTED. The Defendant/Cross-Complainant 2700 Middlefield Road, LLC’s and another LLC’s Motion For Leave To File First-Amended Cross-Complaint is Granted. Amended Pleadings to be filed and served within 20 days of this Order.

 

  • This Action by the County of San Mateo asserts certain claims for Breach of Contract, Breach of Covenant of Quiet Enjoyment, Bad Faith, and Declaratory Relief arising out of a long-term Commercial Lease for the Plaintiff County’s establishment of a new County Medical Clinic on the Defendant/Cross-Complainant’s property. The Lease provides for the Defendant/Cross-Complainant Landlord/Owner to build the clinic as a Tenant Improvement. Coupled with the Lease is the County’s option to buy the property once the clinic has been completed and is operating.

 

  • Defendants filed a cross-complaint alleging a single cause of action: breach of construction agreement, for County’s failure to pay cost overruns in excess of $2.8 million. The Cross-complaint was filed in January 2016.

 

  • On four occasions in late 2015 and early 2016, Defendants/Cross-complainants gave notice to County that Cross-complainant intended to re-take control of the repairs/maintenance of the property. Cross-complainants move to amend their complaint to allege that County breached the lease by refusing to comply with the demand to turn over repair and maintenance services for the property. The new causes of action proposed are Breach of Lease and Declaratory Relief.

 

  • The Court sees no undue prejudice to the Plaintiff/Cross-Defendant County of San Mateo in allowing these amended pleadings. Generally speaking, California trial courts follow a policy of liberal amendment of pleadings. The proposed amendment asserts claims clearly related to those asserted in the original Cross-Complaint, they are compulsory, and belong in this action.

 

·         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 5

 

CLJ 531539

BUSINESS ALLIANCE INSURANCE COMPANY VS. TRACY

    DOROTHY DERAN

 

 

 

 

BUSINESS ALLIANCE INSURANCE COMPANY

MARK R. MITTELMAN

 

TRACY DOROTHY DERANGO

Pro/per

 

 

 

 

Motion for Attorney's Fees

 

TENTATIVE RULING:

 

·         GRANTED. Plaintiff Business Alliance Ins. Corp.’s unopposed Motion for Attorneys Fees is Granted. Plaintiff is awarded $6,670 ($6,580 attorneys fees and $90 filing fees), to be set forth in a Supplemental Judgment.

 

·         This is a claim made on a guaranty of a surety bond issued by Business Alliance to Defendant Tracy Durango. After paying a third party’s $7500 claim under the bond, Plaintiff brought this action on the guaranty for reimbursement of its payment of the loss and certain claims handling expenses. Business Alliance was previously granted Summary Judgment by the Court, and is found to be the prevailing party here.

 

·         The guaranty expressly provided for recovery of Attorneys Fees and costs incurred in the enforcement of the guaranty.

Accordingly, the Court finds a contractual basis for an award of Attorneys Fees.

 

·         The Court finds that the Attorneys Fees claimed here are fair and reasonable for the legal services rendered to Business Alliance by its Counsel. The hourly rate of $175 is within the rates customarily charged in the SF Bay Area for such work, the tasks performed were reasonably necessary to carry on this case, and the hours devoted to the matter are also reasonable.

 

·         In so finding, the Court draws on its own experience of 43 years in civil cases, 33 years in private practice and over a decade as a Judge of the Court, including review (and approval or rejection) of trial counsel billings as an insurance claims counsel when in private practice and review (and approval or rejection) of fee applications as a Judge.

 

·         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.

 

·         However, Moving Party’s Counsel is Ordered to prepare and submit a form of Supplemental Judgment directly to Dept.10 for signature by Judge Gerald J. Buchwald. Counsel to give Notice of Entry once that Supplemental Judgment is entered.

 

 

 

 

 

 

 

 

 

9:00

 

 

LINE 6

 

CLJ 212234

DERRICK LEE VS. VICTOR ALBAUM, ET AL.

 

 

 

 

DERRICK LEE

DAVID G. FINKELSTEIN

 

VICTOR ALBAUM

Pro/PER

 

 

 

 

Motion to Vacate Judgment

 

TENTATIVE RULING:

 

·         HEARING REQUIRED.  PLAINTIFF’S COUNSEL TO PERSONALLY APPEAR; PRO PER DEFENDANTS ROSE HONEYMAN AND VICTOR ALBAUM (LOCATED IN LAKEPORT) MAY APPEAR BY COURT CALL.

 

·         This is an unlawful detainer case that settled at a pretrial settlement conference, and the Defendants surrendered possession as per the settlement. The action was then carried on to collect ancillary damages.

 

·         In that regard, Plaintiff filed an amended complaint for breach of contract that went unanswered by Defendants. Their default was taken, and Plaintiff obtained entry of a default judgment for $14,105.

 

·         Counsel and Defendants to address the following issues at the Hearing: (1) Was Plaintiff aware that Defendants had vacated the subject premises on De Anza Blvd in San Mateo? (2) What attempt, if any, was made to contact Defendants before taking their default?  

 

 

 

 

 

 

 

 

9:00

 

 

LINE 7

 

CIV536982

BUTLER REALTY LLC VS. CALIFORNIA CAPITAL INSURANCE

    COMPANY

 

 

 

 

BUTLER REALTY LLC

ALAN H. PACKER

 

CALIFORNIA CAPITAL INSURANCE COMPANY

GARY R. SELVIN

 

 

 

 

Hearing on Demurrer

 

TENTATIVE RULING:

 

·         DEMURRER OVERRULED. IF EITHER PARTY SHOULD REQUEST A HEARING, COUNSEL TO PERSONALLY APPEAR. NO TELEPHONIC APPEARANCES. NO LOCAL “COVERING” COUNSEL. See the Court’s ruling as to both of these pleading Motions set forth below.

 

 

·         MOTION TO STRIKE DENIED. IF EITHER PARTY SHOULD REQUEST A HEARING, COUNSEL TO PERSONALLY APPEAR. NO TELEPHONIC APPEARANCES. NO LOCAL “COVERING” COUNSEL. See the Court’s ruling as to both of these pleading Motions set forth below.

 

Tentative Ruling On Both Motions:

 

 

·         This is a suit for wrongful denial of insurance coverage arising from alleged wrongful adjustment of a large $10 Million first-party fire loss claim.

 

·         Defendant California Capital is the carrier on a commercial property insurance policy that covered Plaintiff Butler’s multi-unit apartment complex on Woodside Road in Redwood City. A fire in October 2013 caused major property damage, substantial lost rental income, and other business interruption losses.

 

·         Although Defendant California Capital has paid out $10 Million under the policy, Plaintiff claims breach of contract and bad faith in the Defendant’s handling of the claim as to Building Replacement Cost.

 

  • Demurrer to 2nd C/A for breach of the implied covenant:

 

  • In order to state a cause of action for breach of the covenant of good faith and fair dealing the plaintiff need only show that 1) benefits due under the policy have been withheld and 2) the reason for withholding those benefits must have been unreasonable or without proper cause. Love v. Fire Insurance Exchange (1990) 221 Cal App 3d 1136,1151.

 

  • Plaintiff has sufficiently pled such a cause of action. See the allegations in the complaint at ¶¶ 9-16 and 20. Of particular import is the allegation that in initially adjusting the plaintiff’s claim, defendant failed to acknowledge and pay plaintiff the 8% automatic increase in the Building Limit. Instead of paying the 8%, they offered plaintiff the lower 2% increase in the building limit for Inflation Guard.  

 

  • The complaint further alleges that when this was brought to defendant’s attention, defendant completely changed its coverage position, refused to acknowledge that plaintiff was entitled to the 2% Inflation Guard that it initially promised and actually paid. They then agreed to provide coverage for the 8% automatic increase but unilaterally deducted 2% from the 8% owed. ¶¶ 10-12, 13, 15.

 

  • All of these allegations must be taken as true for purposes of demurrer. Clauson v. Superior Court (2000) 67 Cal App 4th 1253, 1255. The demurrer to this cause of action should be, and is, Overruled.

 

  • Motion to strike punitive damages:

 

  • Based on the above-stated decision regarding the second cause of action for breach of the implied covenant of good faith and fair dealing, as well as the allegations set forth in paragraphs 24 a-g, and 28, the complaint sufficiently alleges a claim for punitive damages pursuant to Civil Code §3294(a).

 

·         For the reasons stated the Demurrer is Overruled and the Motion to Strike is Denied. Defendant California Capital Insurance Co. to file and serve its Answer to the Complaint within 20 days of this Order.

 

·         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, as the tentative ruling affords sufficient notice to the parties. However, 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,  as the tentative ruling affords sufficient notice to the parties. However, Prevailing 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 Gerald J. Buchwald, Department 10. 

 

 

 

 

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

 

Thursday, July 21, 2016

 

 

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

 

LINE 1

CIV 533575

ALAW VS. ALL CLAIMANTS TO SURPLUS FUNDS

 

 

ALAW

MEGAN BOYD

OPHELIA ALVAREZ

SEAN P. RILEY

 

 

PETITION FOR DISTRIBUTION OF FUNDS FILED BY OPHELIA ALVAREZ

TENTATIVE RULING:

 

GRANTED.

 

 

 

 


POSTED:  3:00 PM

 

 

 

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