February 22, 2018
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, February 22, 2018

 

TENTATIVE RULINGS

 

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

 

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16-CIV-00175     JOSPEH GIARRUSSO, et al. vs. ESTATE OF DOROTHY

                    DIEGELMAN, et al.

 

 

JOSEPH GIARRUSOO                       JOSHUA HENDERSON

ESTATE OF DOROTHY DIEGELMAN

 

 

PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT

 

·         HEARING REQUIRED. COUNSEL TO PERSONALLY APPEAR. NO TELEPHONIC APPEARANCES. NO “COVERING COUNSEL”.

 

·         The Court notes that this is a personal injury action arising from an automobile collision with a very young child on a driveway in 2003, over 14 years ago. Plaintiff now moves to add a premises liability claim based upon evidence that overgrown vegetation that obscured the child, due to lack of prudent maintenance of shrubs along the driveway, was a contributing or proximate cause of the accident.  

 

 

·         Counsel to be prepared to address the following issues:

 

(1)    Why should the Court not consider this proposed Amendment to be an entirely new claim that, as a practical matter, presents undue prejudice to the Defendant Diegelman Estate given (a) the fact that this case has been on file for a year and nine months, (b) trial is set for August 17th, leaving a relatively short time for likely pretrial investigation, law & motion as to the anticipated time-bar and/or laches issues, and claims evaluation by the insurer who is on risk for the alleged premises liability claim?

 

(2)    Should the matter of adding a premises liability claim at this late date be better left to the trial judge to consider whether or not, on a full evidentiary record, Plaintiff should have leave to amend the pleadings to conform to proof based on the actual evidence?

 

(3)    What weight should this Court give the apparent delay arising from Defendant’s own non-disclosure of the pertinent homeowner’s policy? I.e., since Defendant withheld information about the applicable homeowner’s insurance, don’t the equities favor allowing the proposed pleading Amendment?

 

(4)    In the potential time-bar a subject properly before the Court when considering to allow or not this proposed pleading Amendment?  Isn’t that a subject more properly taken up on a responsive pleading motion or judgment on the pleadings once the affirmative defense is raised in an Answer? I.e., is it premature for the Court to consider that issue now in the face of the liberal policy that favors allowing pleading amendments where trial is still five months away? 

 



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16-CIV-02155     LEON RADER vs. CHEVRA KADISHA-SINAI MEMORIAL

                    CHAPEL, et al.

 

 

RADER, LEON                            FOREMAN, RONALD D.

CHEVRA KADISHA-SINAI MEMORIAL CHAPEL    KASEY A. COVERT

 

 

MOTION TO COMPEL

 

  • hearing continued to february 27, 2018 at 9:00 am in the law & motion dept., as the court has not completed its review of this matter.

 



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16-CIV-02245     JIAN XIANG HUANG vs. SUPERSHUTTLE SAN FRANCISCO,

                    INC., et al.

 

 

JIAN XIANG HUANG                       THOMAS ALAN PAOLI

SUPERSHUTTLE SAN FRANCISCO, INC.

 

 

SUPERSHUTTLE SAN FRANCISCO INC.’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

 

·         DENIED. Defendant Supershuttle of San Francisco, Inc. (hereafter Supershuttle SF)’s Motion for Summary Adjudication, on the issue of vicarious liability, is Granted. Calif. Code of Civil Proc., Section 437c (f). Dismissal With Prejudice of Supershuttle SF, only,to be entered accordingly. Said Defendant to have and recover its costs of suit herein.

 

·         Defendant Supershuttle SF, a Supershuttle franchisee, has made the adequate initial showing that such vicariously liability cannot be established in the face of a complete defense that it has independent contractor status. And the burden on this Motion having shifted to Plaintiff, Plaintiff Jian Xiang Huang has not carried his burden to demonstrate that there exists a triable issue of material fact on that element of the claim made against Supershuttle SF.

 

·         This case arises from an accident at SFO Airport. Plaintiff Huang is a Supershuttle SF van driver injured when he was loading luggage into the back of his parked van. At that time, another van driver Defendant Youtam Amirdizaajtakeieh (hereafter Youtam), affiliated with a different Supershuttle franchisee Blue Eagle Limo and Shuttle, LLC (hereafter Supershuttle Blue Eagle,)struck Plaintiff Huang, caught between the two Supershuttle van vehicles, and injured him.

 

·         The undisputed, and indisputable, material facts here are that Defendant Youtam –- who allegedly was the one who was negligent and caused this accident – was an independent contractor driving vans for Supershuttle Blue Eagle, and he was not affiliated in any way with the moving Defendant Suppershuttle SF. If there is any vicarious liability here it belongs to Supershuttle Blue Eagle – who is not a party to this lawsuit. Consequently, as a matter of law Supershuttle SF cannot be held vicariously liable for Youtam’s alleged negligence.

 

·         In so ruling, the Court notes that the burden of proving the existence of the requisite agency relationship falls upon Plaintiff Huang who is the one claiming such agency. See, e.g., Burbank v. National Casualty Co. (1941) 43 Cal. App.2d 773, 781. See also Wiess v. Valenzuela (1988) 204 Cal. App.3d 1094, holding summary judgment proper where franchisor had no agency relationship with franchisee.

 

·         Defendant Supershuttle SF’s Request for Judicial Notice is Granted.  

 

·         If the Tentative Ruling is uncontested, it shall stand as the Court’s decision. Moving party’s Counsel 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. 

 



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17-CIV-00131     MICHAEL MARQUEZ vs. AHMAD KHATIREJADFARD, et al.

 

 

MICHAEL E. MARQUEZ                     MICHAEL E. MARQUEZ

AHMAD KHATIREJADFARD                   Eliezer cohen

 

 

DEMURRER T0 FIRST AMENDED COMPLAINT oF PLAINTIFF MIChAEL

MARQUEZ

 

·         CONTINUED TO APRIL 23, 2018 AT 9:00 AM. Hearing on Defendant AHMAD KHATIRINEJADFARD’s Demurrer to First Amended Complaint is CONTINUED 60 days to April 23, 2018 at 9:00 am in the Law & Motion Dept.

 

·         This is an action by Plaintiff, a lawyer, Michael Marquez to collect unpaid attorneys fees for legal services rendered to his deceased client Zahra Sabooni in a marriage dissolution and two other civil cases.

 

·         As pointed out in the Court’s (Hon. Richard H. DuBois’s) prior Order of August 22, 2017, a Probate or Trust Estate is not a legal entity who can bring or defend suit. There must be a personal representative to carry on the litigation. (See cases cited in Judge DuBois’ prior Order.)

 

·         Given the circumstances of Defendant’s passing in mid-January, pursuant to Probate Code § 8540(a), any interested party is directed to file a petition for the appointment of a special administrator for the Estate of Ahmad Khatirinejadfard and the Estate of Zahra Sabooni. 

 

·         If the Tentative Ruling is uncontested, it shall stand as the Order of the Court, effective immediately pursuant to Rule 3.1308 (a) (1), Calif. Rules of Court, as adopted by Local Rule 3.10, and no formal order pursuant to Rule 3.1312, or any other notice, is required, the tentative ruling having given sufficient notice to the parties. 

 



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17-CIV-02325     AMERICAN EXPRESS BANK, FSB vs. ARNOUT TER SCHURE

 

 

AMERICAN EXPRESS BANK, FSB             JANET L. BROWN

ARNOUT TER SCHURE                      dustin a. young

 

 

MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

 

  • GRANTED. Plaintiff American Express Bank, FSB’s unopposed Motion for Summary Judgment is GRANTED.  Code Civ. Proc. Sect. 437c.

·         This is a collection action by which American Express seeks recovery of over $35,000 in unpaid credit card charges.

 

·         Plaintiff has met its burden of presenting evidence demonstrating that Defendant Arnout Ter Schure aka Arnout F. Ter Schure entered into credit card agreements for accounts ending in 1009 and 2008 (see 12-1-17 Decls. of Mario Morales-Arias), incurred a debt to Plaintiff for those two accounts in the total amount of $35,328.21 ($11,758.30 for account ending in 1009, and $23,569.91 for account ending 2008), and Defendant has not paid the amounts due. 

 

·         Accordingly, the burden shifted to Defendant to come forward with evidence raising a triable issue of fact as to the asserted claim, which Defendant has not done.  The motion is unopposed, and none of Plaintiff’s asserted material facts is disputed.

 

·         Plaintiff’s Request for Judicial Notice as to JN1 and JN2 is GRANTED.  Evid. Code Sect. 451(a), 452(a)-(b).

 

·         Plaintiff shall submit a proposed Judgment for the Court’s signature in the amount of $35,328.21.  Plaintiff’s request for costs should be made by complying with CRC 3.1700. 

 

·         If the Tentative Ruling is uncontested, it shall stand as the Court’s decision. Moving party’s Counsel 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 and a separate proposed form of Judgment are to be submitted directly to Judge Gerald J. Buchwald, Department 10. 



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17-CIV-02513     MICHAEL S. HENSLEY, et al. vs. DAX TEOPHANTONG

                   CRAVEN, et al.

 

 

MICHAEL S. HENSLEY                     JEFFREY A. BERGER

DAX TEOPHANTONG CRAVEN

 

 

DEMURRER BY DEFENDANT CHICAGO TITLE INSURANCE COMPANY 

 

·         CONTINUED TO MARCH 8, 2018 AT 9:00 AM. By Stipulation, Counsel for the Parties having jointly requested a Continuance of this Hearing, and the Court (Hon. Susan Greenberg) having previously so Ordered, this matter is set over to Thursday, March 8, 2018 at 9:00 am in the Law & Motion Department.

 



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17-CIV-02650   CHET ALLEN vs. CYPRESS LAWN CEMETERY ASSOCIATION, et al

 

 

CHET ALLEN                             RICHARD PARIS

CYPRESS LAWN CEMETERY ASSOCIATION       STEVEN H. GURNEE

 

 

Motion to be relieved of counsel 

 

·         OFF-CALENDAR. This matter is Ordered Off-Calendar for Lack of Notice and Insufficient Motion Papers. As a result, the Court is without jurisdiction to hear the Motion at this time.

 

·         By this Motion, Plaintiff’s Attorney Richard Paris and his firm Calif. Law & Mediation, Inc. seek to withdraw from their engagement to pursue their client Chet Allen’s suit against Cypress Lawn Cemetery for alleged failure to keep a family mausoleum free from water damage.

 

·         Even if there were jurisdiction here, Counsel’s declaration does not state reasons to show any material breakdown in the attorney-client relationship as is required.

 

·         Moreover, Moving Counsel has not provided proof that the required statutory forms for this type of Motion have been served on his client and all other parties who have appeared in the action as required by Rule 3.1362(d) Calif. Rules of Court. The Proof of Service fails to comply with CCP, Section 1013a.

 

·         If the Tentative Ruling is uncontested, it shall stand as the Order of the Court, effective immediately pursuant to Rule 3.1308 (a) (1), Calif. Rules of Court, as adopted by Local Rule 3.10, and no formal order pursuant to Rule 3.1312, or any other notice, is required, the tentative ruling having given sufficient notice to the parties. 

 



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17-CIV-03349     GEORGE P. ESHOO vs. SYED ALI HUSAIN, et al.

 

 

GEORGE P. ESHOO                        Pro/per

SYED ALI HUSAIN                        ALLEN SPLOPUKO

 

 

DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT

 

·         OVERRULED. Defendant Syed Ali Husain’s Demurrer to First Amended Complaint is Overruled. Said Defendant shall file and serve his Answer to the Complaint within 20 days of Notice of Entry of Order.

 

·         This case is a suit over unpaid legal fees. The gist of the action is that plaintiff-attorney George Eshoo initially entered into a written retainer agreement with defendant-client Syed Ali Husain in December 2007. Thereafter, as additional legal matters arose, Attorney Eshoo continued to represent Client Husain—allegedly continuing the terms set forth in the original agreement.

 

·         Though no specific dates are alleged as to when the breach occurred, it is alleged that, at some point, Client Husain began to delay in making payments—representing that he had money tied up in a “1031-exchange” in another litigation matter and would pay Attorney Eshoo when that matter resolved in one year. However, Client Husain allegedly never paid.

 

·         Attorney Eshoo filed this case in July 2017. After a demurrer (which was never ruled on), Attorney Eshoo filed a First Amended Complaint on Nov 02, 2017. Client Husain demurred.

 

·         Plaintiff Eshoo raises five Causes of Action: Breach of Contract, Account Stated, Services Rendered, Quantum Meruit, and Open Book Account. Demurrer is made on grounds of lack of standing to sue, failure to state a claim, failure to specify is contract is written or oral, or implied by conduct, and uncertainty.

 

·         The Court rules on the Demurrer as follows:

 

·         Request for Judicial Notice/Objections to Evidence. Client Husain requests that this Court take judicial notice:

 

of official reports filed with the State Bar of California as well as a letter from the State Bar of California confirming that the Law Firm Corporation was revoked on Jan 01, 2016, and

 

of a “Certificate of Status” on letterhead from the California Secretary of State and with the seal of the State of California.

 

·         These Judicial Notice Requests are Granted.

 

·         Both requests are made pursuant to Evidence Code §§ 452(d) and 453. That statutory provision allows judicial notice to be taken of “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.” Evidence Code § 452(d). Neither of the documents provided is a court filing. However, Evidence Code § 452(h) allows a court to take judicial notice of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” Official filings with the California State Bar and the California Secretary of State are from sources of “reasonably indisputable accuracy” and are the type of official records that are “capable of immediate and accurate determination.” As such, they are judicially noticeable—at least for the fact of filing, as opposed to for the truth of their content.

 

·         Attorney Eshoo objects that, if offered for the “truth” of their contents, these documents are disputed, such that judicial notice cannot be taken. People v. Ramos (1997) 15 Cal.4th 1133, 1167. He also objects that judicial notice cannot be taken of facts would be subject to exclusion, and that the facts contained in the documents for which judicial notice is sought are excludable under Evidence Code § 352 (allowing exclusion of evidence where the probative value is substantially outweighed by the probability of unduly consuming time or creating substantial danger of undue prejudice, confusing the issues, or misleading the jury). The evidence at issue is judicially noticeable for the fact of its filing, and for the legal effect of that filing, even if not for the “truth” of its contents. Moreover, the evidence at issue need not be excluded under Evidence Code § 352—as the Court is reviewing the evidence and thus the risk of undue prejudice, confusion of the issues, or misleading is not the same as with a lay jury.

 

·         Accordingly, Mr. Eshoo’s Objections are Overruled.

 

·         Whether the Contract Was Written, Oral, or Implied by Conduct (C.C.P. § 430.10(g)). Under C.C.P. § 430.10(g), a complaint is subject demurrer if it is “an action founded upon a contract,” and “it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.” Here, the operative pleading alleges that “Eshoo and Husain entered into a written representation and fee agreement whereby Husain agreed to pay the hourly rate… for Eshoo’s legal services…” FAC ¶ 1 (emphasis added). This assertion that the agreement at issue was written is repeated at other points in the operative pleading. See FAC ¶¶ 2 and 8. The First Amended Complaint notably alleges that, after engaging in the initial written agreement in December 2007, the parties reached additional agreements that Attorney Eshoo would continue to represent Client Husain in additional matters, as follows:

 

August 2008 – Robert Padrick Matter

July 2009 – B&D/Williams Matter

January 2010 – East West Bank Matter

March 2010 – Lou Liberty Matter

July 2014 – Hillsborough Matter

 

·         For these agreements, it is alleged that “Husain agreed to pay, and for years did pay, Eshoo for his legal services at Eshoo’s usual hourly rates…” FAC ¶ 14. While less clear, it appears sufficient for purposes of demurrer that these agreements referred back the terms of the original written retainer agreement from December 2007.

 

·         Related to this argument, Client Husain argues that a complaining party cannot allege inconsistent facts, and that it is inconsistent to simultaneously allege a written contract alongside equitable claims for quantum meruit and for common counts. Attorney Eshoo counters that these are not inconsistent facts—they are alternative legal theories. “When a pleader is in doubt about what actually occurred or what can be established by the evidence, the modern practice allows that party to plead in the alternative and make inconsistent allegations.” Newport Harbor Ventures, LLC v. Morris Cerulla World Evangelism (2016) 6 Cal.App.5th 1207, 1222, quoting Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1402. The various allegations here set forth alternative legal theories. As it is permissible to plead inconsistent legal theories, Client Husain’s “inconsistent facts” argument is without merit on demurrer. 

 

·         Standing (CCP § 430.10(b)). Under C.C.P. § 430.10(b), a complaint is subject to demurrer if “[t]he person who filed the pleading does not have the legal capacity to sue.” Client Husain argues that the retainer agreement was between himself and the Law Offices of George P. Eshoo, A Professional Law Corporation—not with Attorney Eshoo individually. Since the operative pleading is filed by Attorney Eshoo individually, Client Husain maintains that the party bringing suit does not have authority to do so.

 

·         The First Amended Complaint defines “Eshoo” as the individual “Complainant George P. Eshoo” (FAC, p. 1:17-19) and then goes on to allege that the retainer agreement was between Client Husain and Attorney Eshoo, individually. FAC ¶¶ 1 and 8. Therefore, as alleged, the operative complaint has nothing to do with the Law Firm Corporation.

 

·         A court must “treat [a] demurrer as admitting all material facts properly pleaded…” Blank v. Kirwan (1985) 39 Cal.3d 311, 318, quoting Serrano v. Priest (1971) 5 Cal.3d 584, 891. Here, Attorney Eshoo has pled that the retainer agreement at issue was between himself individually and Client Husain, and that fact must be indulged on demurrer. However, the obligation to indulge a complaining party’s allegations is bounded by the fact that a court must “give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” Id., citing Speegle v. Board of Fire Underwriters (1946) 29 Cal.2d 34, 42 (emphasis added). Here, Client Husain has presented judicially-noticeable evidence that Attorney Eshoo had a professional corporation bearing his name. See RJN, Exs. 1 and 2. That evidence is somewhat contradictory as to the times during which the Law Firm Corporation was active. The information contained in the Secretary of State’s “Certificate of Status” indicates that the Law Firm Corporation was suspended in May 1999 and again in April 2000—it makes to reference to when or if the Law Firm Corporation’s status was reinstated. The filings with the State Bar of California, which are the “Law Corporation … Annual Report and … Renewal Form” for the years between 2005 and 2016. However, the information provided by the State Bar of California indicates that Attorney Eshoo requested that the Law Firm Corporation be canceled/revoked because he “ha[s] not used the corporation” and because “[he] operate[s] as a sole proprietor.” RJN, Ex. 1. This information is consistent with the allegations being made by Attorney Eshoo—i.e. he requested that his professional corporation be revoked because he was not using it. Since the facts alleged in the operative pleading are that the retainer agreement was between Attorney Eshoo individually—i.e. as a sole proprietor—the judicially noticeable fact that his professional corporation was revoked for that same reason—i.e. that he was acting as a sole proprietor and not using the corporation—is consistent. Therefore, the judicially noticeable information does not call into question the facts alleged in the operative pleading.

 

·         Whether the Operative Complaint States a Claim or Is Uncertain. Client Husain argues that a party alleging breach of a written contract must either attach a copy of the written contract or allege its terms verbatim. For this proposition, Client Husain relies on Otworth v. Southern Pacific Transportation Co. (1985) 166 Cal.App.3d 452, 458-459. However, in 2015, the Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 401-402 court declined to follow that part of Otworth and indicated that “[t]he correct rule is that ‘a plaintiff may plead the legal effect of the contract rather than its precise language.’” Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 401-402, quoting Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 199. Therefore, Attorney Eshoo has adequately pled the legal effect of the retainer agreement.

 

·         The Statute of Limitations.  Attorney Eshoo alleges that the retainer agreement was executed in December 2007. He does not allege the specific date of the breach. Instead, he alleges that even when some bills went unpaid, Client Husain reassured him that payment would be forthcoming as his cash flow improved and/or as certain transactions went though. Attorney Eshoo also alleges that Client Husain made some partial payments consistent with those representations—at least up until Apr 22, 2016. FAC ¶ 3.

 

·         Client Husain argues that these allegations amount to a theory of equitable tolling, and that the burden for alleging equitable tolling falls on the complaining party who must allege: the time and manner of discovery; and inability to have made earlier discovery despite reasonable diligence.

 

·         Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797. “However, a promise to pay ‘when able’ does not call for immediate performance, and the statute of limitations does not begin to run until the debtor becomes able to pay.” 1 Witkin, Summary of California Law (11th ed.) Contracts, § 786, citing Van Buskirk v. Kuhns (1913) 164 Cal. 472, 474 (additional citations omitted). Thus, in context of the allegations made, the issue first issue to address is when Client Husain became able to pay. Only after that has been established can an analysis be done of whether any equitable tolling applies—or, for that matter, whether equitable tolling is even necessary. In light of the Apr 22, 2016 date alleged and the promise to pay “when able,” it cannot be determined from the facts available that the statute of limitations had run on the claims being made.

 

·         If the Tentative Ruling is uncontested, it shall stand as the Court’s decision. Mr. Eshoo 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. 

 



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17-CIV-04710     REALTY ALLIANCE, INC. vs. DE RITZ, LLC, et al.

 

 

REALTY ALLIANCE, INC.                  JOSEPH W. CARCIONE, JR.

DE RITZ, LLC                           KATHARINE ESSICK

 

 

Motion for protective order

 

  • hearing continued to february 27, 2018 at 9:00 am in the law & motion dept., as the court has not completed its review of this matter.

 



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17-CLJ-03514     JONATHAN D. COBB, SR. vs. EMMA VIOLA ATWATER

 

 

EMMA VIOLA ATWATER                     PETER N. BREWER

JONATHAN D. COBB, SR                   Pro/per

 

 

Motion to be relieved of counsel

 

·         OFF-CALENDAR. This matter is Ordered Off-Calendar for Lack of Notice. As a result, the Court is without jurisdiction to hear the Motion at this time.

 

·         By this Motion, Defense Counsel Simon Offord and his firm Law Offices of Peter Brewer seek to withdraw from their engagement to defend against the Plaintiff’s quiet title action claiming that their client the Defendant has unlawfully encroached on the Plaintiff’s adjoining property in East Palo Alto.

 

·         While Mr. Brewer has set forth in his supporting Declaration facts that support a material breakdown in the attorney-client relationship, increasing failure of communication that is making continued representation increasingly difficult to effectively carry out, the Proof of Service on file does not establish service of the Motion papers on the Plaintiff neighbor Mr. Jonathan Cobb, Sr. who is shown on the Court’s records of representing himself in Pro/Per. Service was on a lawyer Grant Baker of Michael B. Allen Law Group who are not Counsel-of-Record herein.

 

·         If the Tentative Ruling is uncontested, it shall stand as the Order of the Court, effective immediately pursuant to Rule 3.1308 (a) (1), Calif. Rules of Court, as adopted by Local Rule 3.10, and no formal order pursuant to Rule 3.1312, or any other notice, is required, the tentative ruling having given sufficient notice to the parties. 

 



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17-UDL-01193     ARGENTINA AVALOS vs. MUHSEN ALI MISIF, et al.

 

 

mUHSEN ALI musit                       Pro/per

ARGENTINA AVALOS                       Pro/per

 

 

Motion to set aside default judgment

 

·         DENIED. Defendant Al Misif’s Motion To Set Aside Default Judgment is Denied. The Defendant fails to establish surprise, mistake, or excusable neglect that would justify vacating the default judgment herein and/or the entry of default.

 

·         Defendant’s statement that the Summons was beneath some pages of the 1st Amended Complaint does not rise to the level of excusable neglect. Both the original and amended pleadings are each only a few pages long, and the Summons should have been easily noticeable. Defendant’s other excuses, i.e. that a second 3-day Notice led him to believe he had another chance to cure his default, and reference to his wife’s illness do not explain away his failure to respond to the 1st Amended Complaint.

 

·         If the Tentative Ruling is uncontested, it shall stand as the Order of the Court, effective immediately pursuant to Rule 3.1308 (a) (1), Calif. Rules of Court, as adopted by Local Rule 3.10, and no formal order pursuant to Rule 3.1312, or any other notice, is required, the tentative ruling having given sufficient notice to the parties. 

 



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18-UDL-00061     JOHN DALY BOULEVARD ASSOCIATES. L.P. vs. PILAR GIGLER

 

 

JOHN DALY BOULEVARD ASSOCIATES. L.P.    TODD ROTHBARD

PILAR GIGLER                           Pro/per

 

 

Hearing on Demurrer

TENTATIVE RULING:

 

Hearing required as the Court was not able to timely prepare a tentative ruling.

 


 

 

 


POSTED:  3:00 PM

 

© 2018 Superior Court of San Mateo County