February 19, 2017
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 RICHARD H. DuBOIS

Department 16

 

400 County Center, Redwood City

Courtroom 7A

 

Thursday, February 16, 2017

 

NOTICE TO ALL COUNSEL

 

Until further order of the Court, no endorsed-filed “courtesy copy” of pleadings is required to be provided to the Law and Motion Department.

 

 

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.

 

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

Line: 1

16-CIV-00141     NOAM KEDEM vs. NISSAN NORTH AMERICA, INC.

 

 

NOAM KEDEM                            Justin T. Berger

NISSAN NORTH AMERICA, INC.            Amir M. Nassihi

 

 

NISSAN’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED complaint

TENTATIVE RULING:

 

This matter is continued by the court to March 20, 2017 at 9:00 a.m. in the Law and Motion department.

 

 



9:00

Line: 2

16-CIV-00268     DONALD JOSEPH KENNEDY vs. MUATH "MATT" ZGHOUL, et al.

 

 

DONALD JOSEPH KENNED                  CARY KLETTER

MUATH "MATT" ZGHOUL

 

 

MOTION TO QUASH  Defendants' Subpoena for all of Plaintiff's Bank Records

TENTATIVE RULING:

 

Plaintiff’s Motion to Quash Defendants’ subpoena to Wells Fargo Bank, N.A. is GRANTED.  According to Defendant Wildwood LLC, Plaintiff’s privacy rights are “moot” because Defendants already have in their possession the requested bank records as the result of the District Attorney’s subpoena to Wells Fargo in the related criminal proceeding.  The two subpoenas (the civil and criminal) are substantially similar, except that the Defendants’ subpoena here covers the time period from Jan. 1, 2013 forward, whereas the criminal case subpoena sought all documents from Jan. 1, 2014 forward.  Plaintiff has not waived his right to privacy by the District Attorney’s obtaining of his records.

 

Further, given the allegations in this case and the Court’s need to weigh the need for the documents against Plaintiff’s privacy rights, the subpoena is overbroad.  Valley Bank of Nevada v. Sup. Ct. (1975) 15 Cal.3d 652, 656.  While the criminal matter may involve broader allegations, the Complaint here only alleges that Defendants, in 2016, executed a fraudulent grant deed for the property.  Defense counsel’s opposing declaration indicates the parties met in or about April 2016, and states that Plaintiff has accused Defendant(s) of stealing money from Plaintiff’s reverse mortgage.  Singer Decl., Parag. 15.  Given that the alleged wrongful acts occurred in or after April 2016, bank records dated prior to that date are of questionable relevance, and the need for them is outweighed by Plaintiff’s privacy rights. 

 

When balancing the need for information vs. Plaintiff’s right to privacy, the court must consider less intrusive alternative means of obtaining the information.  Defendant apparently has copies of records dating back to 2014.  Instead of opening up Plaintiff’s entire records, defendants can take Plaintiff’s deposition and inquire into questions he may have surrounding specific records he currently has copies of. 

 

The request for sanctions is DENIED. 

 



9:00

LineS: 3 - 5

CIV458258     DAVID MELCHER VS. ELIZABETH KARNAZES

 

 

ELIZABETH KARNAZES                    Pro/PER

DAVID MELCHNER                        Pro/PER

 

 

 

3. MOTION to Quash   

TENTATIVE RULING:

 

Defendant has filed a challenge as to Department 16 pursuant to CCP §170.1.  This matter is stayed pending resolution of the challenge.  These motions are continued to March 14, 2017 at 9:00 A.M. in the Law and Motion Department for hearing or to be reset if the challenge has been granted or has not been resolved. 

 

 

 

4. MOTION to ORDER Subpoena and/or for a Protective Order and Release of Information Regarding John J. Hartford's Improper Subpoenas

TENTATIVE RULING:

 

Defendant has filed a challenge as to Department 16 pursuant to CCP §170.1.  This matter is stayed pending resolution of the challenge.  These motions are continued to March 14, 2017 at 9:00 A.M. in the Law and Motion Department for hearing or to be reset if the challenge has been granted or has not been resolved. 

 

 

5. MOTION to Quash Subpoena and/or for a Protective Order and Release of Information Regarding John J. Hartford's Improper Subpoenas

TENTATIVE RULING:

 

Defendant has filed a challenge as to Department 16 pursuant to CCP §170.1.  This matter is stayed pending resolution of the challenge.  These motions are continued to March 14, 2017 at 9:00 A.M. in the Law and Motion Department for hearing or to be reset if the challenge has been granted or has not been resolved. 

 

 



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Line: 6 & 7

CIV536356     LAURA A. BRYAN VS. QUENTIN COPPER, ET AL.

 

 

LAURA A. BRYAN                        LAURA A. BRYAN

QUENTIN COOPER                        DENNIS J. BYRNE ESQ

LEE ANN GILBERT                       FRANCOIS SORBA

 

6. DEMURRER TO SECOND AMENDED COMPLAINT BY COOPER DEFENDANTS

TENTATIVE RULING:

 

The Demurrer of Defendants Quentin Cooper, Lee Altschuler and Elizabeth Capdevielle (“Defendants”) to the Second Amended Complaint (“SAC”) of Plaintiff Laura A. Bryan (“Plaintiff”) is ruled on as follows: 

 

(1) Defendants’ Request and Supplemental Request for Judicial Notice are GRANTED.  (See Evid. Code § 452(d).) 

 

(2) The demurrer to the First, Second and Third Cause of Action, as barred by the statute of limitations, is OVERRULED.  It is not clear from the allegations in the SAC that these claims are time barred under the applicable statute of limitations.  (See C.C.P. § 338(c)(1), (d).)  It is true that Plaintiff alleges she last occupied the property in 2007 and last interviewed a client at the property in 2009, but she also alleges that after one of her tenants vacated the property, she began moving her personal property in 2012.  (See SAC ¶¶ 6-8.)  Plaintiff further alleges that she was permitted to move some of her property in March 2014, but that Defendants refused to hand over Plaintiff’s remaining property that was inside the locked premises.  (See SAC ¶¶ 10-14.)  Thus, it appears that Plaintiff is alleging that any taking or detaining of Plaintiff’s property did not occur until March 2014.  Further, it appears that Plaintiff did not discovery any fraud or mistake with respect to her property until March 2014. 

 

(3) The demurrer to the Second Cause of Action for Unjust Enrichment, is OVERRULED.  Although unjust enrichment is not recognized as a theory of recovery, it is synonymous with restitution.  (Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793.) There is no particular form of pleading necessary to invoke the doctrine of restitution.  (Dinosaur Development, Inc. v. White (1989) 216 Cal.App.3d 1310, 1315.)  Restitution has frequently been extended to include not only the restoration or giving back of something to its rightful owner, but also compensation, reimbursement, indemnification, or reparation for benefits derived from, or for loss or injury caused to, another.  (Id.)  It must ordinarily appear that the benefits were conferred by mistake, fraud, coercion or request; otherwise, though there is enrichment, it is not unjust.  (Id. at 1316.)  Plaintiff sufficiently alleges such facts here.  (See SAC ¶¶ 26-31.) 

(4) The demurrer to the Third Cause of Action for Negligent Fraud, is

SUSTAINED WITH LEAVE TO AMEND.  Plaintiff has not alleged facts

sufficient to support a claim for negligence or negligent Misrepresentation.

To the extent that Plaintiff is alleging a claim for negligent

misrepresentation, such a claim must be pled with specificity, including facts

showing how, when, where and by what means the alleged misrepresentations

were tendered.  (See Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.)

 

Plaintiff shall file and serve a Third Amended Complaint within 15 days of notice of entry of the order.  Defendants shall have 15 days thereafter to file and serve a response.

 

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.

 

 

7. DEMURRER TO SECOND AMENDED COMPLAINT BY GILBERT DEFENDANTS

TENTATIVE RULING:

 

The Demurrer of Defendants Lee Ann Gilbert and William Gilbert (“Defendants”) to the Second Amended Complaint (“SAC”) of Plaintiff Laura A. Bryan (“Plaintiff”) is ruled on as follows: 

 

(1) The demurrer to the First Cause of Action, as barred by the statute of limitations, is OVERRULED.  It is not clear from the allegations in the SAC that this claim is time barred.  (See C.C.P. § 338(c)(1).)  It is true that Plaintiff alleges she last occupied the property in 2007 and last interviewed a client at the property in 2009, but she also alleges that after one of her tenants vacated the property, she began moving her personal property in 2012.  (See SAC ¶¶ 6-8.)  Plaintiff further alleges that she was permitted to move some of her property in March 2014, but that Defendants refused to hand over Plaintiff’s remaining property that was inside the locked premises.  (See SAC ¶¶ 10-14.)  Thus, it appears that Plaintiff is alleging that any taking or detaining of Plaintiff’s property did not occur until March 2014.

 

(2) The demurrer to the First Cause of Action for failure to allege facts sufficient to support this claim and uncertainty, is SUSTAINED WITH LEAVE TO AMEND. 

 

Although labeled as a claim for “Claim and Delivery/Writ of Possession,” it appears that Plaintiff is bringing a claim for specific recovery of personal property, or for conversion.  Thus, Plaintiff must allege facts to support:  (1) the plaintiff's right to possession of tangible property at the time of commencement of the action, (2) the defendant's wrongful possession, and (3) the value of the property. (5 Witkin, Cal. Proc. 5th Plead § 692 (2008).)  Plaintiff fails to allege sufficient facts here to support Defendants’ wrongful possession of the property, and the value of the property. 

 

The Second Amended Complaint is also uncertain because Plaintiff alleges that there were oral and written agreements between the parties upon which her claim is based, but then alleges no verbal or written agreements between the parties as to possession of the property at issue here.  (See SAC ¶¶ 5, 21.)  Thus, it is unclear whether Plaintiff is alleging any oral or written agreement existed between Plaintiff and Defendants, and if such an agreement(s) existed, what the terms of the agreement(s) are.

 

(3) The demurrer to the Second Cause of Action for Unjust Enrichment, is OVERRULED.  Although unjust enrichment is not recognized as a theory of recovery, it is synonymous with restitution.  (Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793.) There is no particular form of pleading necessary to invoke the doctrine of restitution.  (Dinosaur Development, Inc. v. White (1989) 216 Cal.App.3d 1310, 1315.)  Restitution has frequently been extended to include not only the restoration or giving back of something to its rightful owner, but also compensation, reimbursement, indemnification, or reparation for benefits derived from, or for loss or injury caused to, another.  (Id.)  It must ordinarily appear that the benefits were conferred by mistake, fraud, coercion or request; otherwise, though there is enrichment, it is not unjust.  (Id. at 1316.)  Plaintiff sufficiently alleges such facts here.  (See SAC ¶¶ 26-31.) 

(4) The demurrer to the Third Cause of Action for Negligent Fraud, is

SUSTAINED WITH LEAVE TO AMEND.  Plaintiff has not alleged facts

sufficient to support a claim for negligence, or negligent misrepresentation. 

To the extent that Plaintiff is alleging a claim for negligent

misrepresentation, such a claim must be pled with specificity, including facts

showing how, when, where and by what means the alleged misrepresentations

were tendered.  (See Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) 

 

Plaintiff shall file and serve a Third Amended Complaint within 15 days of notice of entry of the order. Defendants shall have 15 days thereafter to file and serve a response. 

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: 8

CIV538559     MARIA LUZ DE CASTILLO VS. JESUS PEREZ

 

 

MARIA LUZ DE CASTILLO                 LEONARD S. BECKER

JESUS PEREZ                           ANDREW M. LAUDERDALE

 

 

 

MOTION TO COMPEL Further Answers from Plaintiff to Special Interrogatories, Set Two

TENTATIVE RULING:

 

This matter is dropped from calendar at the request of the moving party.

 



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Line: 9

CIV538897     DBP INVESTMENTS VS. KING PLAZA CENTER

 

 

DBP INVESTMENTS                       STEVEN B. PISER

KING PLAZA CENTER, LLC                MADOLYN D. ORR

 

 

MOTION TO COMPEL FURTHER Responses to Request For Production Of Documents and For Production of Documents, Set One and Sanctions

TENTATIVE RULING:

 

The Court admonishes Defendants’ counsel James Barrett for violating CRC Rule 3.1110(f) (requiring hard tabs between exhibits) regarding its Opposing Declaration of James Barrett, which includes five untabbed exhibits across 100 pages. Counsel is directed to comply with all California Rules of Court and Local Rules in all actions.

 

The motion to compel written responses to the Demand for Production of Documents is moot, Defendant having served verified responses on January 20, 2017.

 

The court does not entertain Plaintiff’s request to compel further responses or compel production of documents. (See Reply at 3:12-20.) The only motion properly noticed for this hearing is to compel written responses pursuant to Code of Civil Procedure section 2031.300(b). (See Notice of Motion at 2:3.) A motion for further responses falls under section 2031.310, and Plaintiff fails to comply with CRC Rule 3.1345 (separate statement required) and must bring this issue before the court in a subsequent motion.

 

Plaintiff’s motion for monetary sanction is granted against Defendant Bua Quach. Defendant Bua Quach shall pay a monetary sanction of $446.25 to Plaintiff DBP Investments, no later than March 3, 2017, or one week after service of the written order on this motion, whichever is later. 

 

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, Plaintiff 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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Line: 10

CLJ538365      CAPITAL ONE BANK VS. SANDRA JORDAN

 

 

CAPITAL ONE BANK (USA), N.A.          ELIZABETH A. BLEIER

SANDRA JORDAN                         DANIEL T. LEBEL

 

 

MOTION FOR SUMMARY JUDGMENT

TENTATIVE RULING:

 

Plaintiff CAPITAL ONE BANK (USA), N.A.’s Motion for Summary Judgment is GRANTED.  Plaintiff has established each of the elements of its sole cause of action for breach of contract, and Defendant SANDRA JORDAN has not shown that a triable issue of material fact exists as to that cause of action or a defense thereto.  Code Civ. Proc. Sec. 437c(p)(1). 

 

Caselaw supports Plaintiff’s position that it is Defendant’s use of the credit card that creates an enforceable contract and not necessarily the underlying credit card agreement. 

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10.  If the tentative ruling is uncontested, Plaintiff is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order is to be submitted directly to Judge Richard H. DuBois, Department 16.

 

 



 

 

 

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 susan irene etezadi

Department 18

 

400 County Center, Redwood City

Courtroom 2L

 

Thursday, February 16, 2017

 

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

 you must call (650) 261-5118 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

Line: 1

16-CIV-02954     STEVE FERRARI, et al. vs. AUTOBAHN, INC., et al.

 

 

FRED GRANT                            HERMAN FRANCK

AUTOBAHN, INC.

 

 

Complex Case Status Conference

TENTATIVE RULING:

 

On January 4, 2017, this action was removed to Federal Court. Therefore, the Complex Case Status Conference is continued 90 days to May 16, 2017 at 9:00 a.m. on the Presiding Judge’s Law and Motion Calendar.

 


 

 

 

 


POSTED:  3:00 PM

 

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