August 1, 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 JOSEPH E. BERGERON

Department 4

 

400 County Center, Redwood City

Courtroom 2B

 

JULY 31, 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 519467       UNIFUND CCR, LLC VS. ANDREW A. DIOLI

 

 

UNIFUND CCR, LLC                      MATTHEW W. QUALL

ANDREW A. DIOLI

 

 

MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT PURSUANT TO CCP 473(D) AND TO QUASH SERVICE OF SUMMONS (CCP 418.10) BY ANDREW A. DIOLI

 

 

·         The Defendant Andrew A. Dioli’s unopposed Motion to Set Aside Default is GRANTED pursuant to CCP § 473(d).  The Court must set aside any judgment for lack of personal jurisdiction.  CCP § 473(d); Strathvale Holdings v. E.B.H.

 

·         The Defendant’s Motion to Quash Service of Summons is GRANTED pursuant to CCP § 418.10(a)(1).  Plaintiff failed to properly serve Defendant, thus the Court lacks jurisdiction over Defendant.

 

·         Plaintiff  has filed a Notice of Non-Opposition.  One must question the Declaration of Proof of Service filed by P. Woodward, of La Mirada, CA.

 

_____________________________________________________________________

9:00

2

CIV 520904       IVAN JEROME VAN PERRE, JR. VS. STATE OF CALIFORNIA

 

 

IVAN JEROME VAN PERRE, JR.            JUDY GRAZIANO

STATE OF CALIFORNIA                   RONALD W. BEALS

 

 

MOTION TO COMPEL FURTHER RESPONSES AND DOCUMENTS TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET THREE, AND REQUEST FOR SANCTIONS BY IVAN JEROME VAN PERRE, JR.

 

 

·         The Plaintiff’s Motion to Compel as to Requests Nos. 1, 2, 3, 4, 5, 6,  9  and 29 is GRANTED to the extent that Defendant Caltrans provide a further response as to the name and address of anyone believed to have the documents.

 

·         The Plaintiff’s Motion to Compel as to Requests Nos. 7, 8, 28 and 30 is GRANTED so that Defendant Caltrans can provide a full and complete, Code compliant, further response.

 

·         The Plaintiff’s Motion to Compel as to Request No. 15 is moot pursuant to Plaintiff’s Reply (Pg. 3:4-5).

 

·         The Plaintiff’s Motion to Compel as to Request No. 31 is DENIED because Plaintiff has failed to demonstrate adequate, fact specific good cause.

 

·         The Plaintiff’s Motion for Sanctions is GRANTED.

 

·         The Defendant shall pay monetary sanctions to Plaintiff in the sum of $560.00 on or before August 31, 2014.

 

·         Prevailing party is directed to prepare a written order consistent with the Court’s ruling, 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.

 

_____________________________________________________________________

9:00

3

CIV 521299       TONY CHEN, ET AL. VS. STANDARD FIBER, LLC

 

 

TONY CHEN                             JONATHAN B. GASKIN

STANDARD FIBER, LLC                   MICHAEL J. QUINN

 

 

DEMURRER TO CROSS-COMPLAINT of STANDARD FIBER, LLC BY DELLON CHEN

 

 

·         The Plaintiff/Cross-Defendant DELLON CHEN’s Demurrer to the Cross-Complaint filed by Defendant/Cross-Complainant STANDARD FIBER, LLC is SUSTAINED IN PART and OVERRULED IN PART, as follows:

 

  • OVERRULED on statute of limitations grounds.  In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows merely that the action may be barred.  McMahon v. Republic Van & Storage Co., Inc. (1963) 59 Cal.2d 871, 874.  The Cross-Complaint sufficiently alleges that discovery of STANDARD’s causes of action was delayed, such that its claims are not time-barred on their face.

 

  • SUSTAINED WITHOUT LEAVE TO AMEND on the ground that the Promissory Note, attached as Exhibit “A” to the Cross-Complaint, contains a non-recourse provision limiting STANDARD’s remedies to “preservation, protection, enforcement and foreclosure” of the security interests acquired by STANDARD pursuant to the Pledge Agreement.  (“Non-Recourse Promissory Note” at p. 2, Section 3.)  While STANDARD’s causes of action are couched as claims for fraud and negligent misrepresentation, the gravamen of the Cross-Complaint involves DELLON CHEN’s alleged failure to repay the loan evidenced by the Promissory Note.  The clear contractual language entered into by the parties limits STANDARD’s remedies in the event of non-payment or non-performance.  The Court rejects STANDARD’s argument that this is tantamount to a “general release and waiver of all claims” or that it is a provision aimed at excusing CHEN from responsibility for his own fraud, contrary to Civil Code §§ 1542 and 1668. 

 

·         Moving party is directed to prepare a written order consistent with the Court’s ruling, pursuant to California Rules of Court, Rule 3.1312, and provide notice thereof to the Plaintiff as required by law and the California Rules of Court.

 

_____________________________________________________________________

9:00

4

CIV 527479       GEOFFROY DE LA BARRE DE NANTEUIL, ET AL. VS. KENNETH

                   BAKER, ET AL.

 

 

GEOFFROY DE LA BARRE DE NANTEUIL      TIMOTHY C. WILSON

KENNETH BAKER                         KATHRYN S. DIEMER

 

 

SPECIAL MOTION TO STRIKE THE 3RD, 13TH AND 14TH CAUSES OF ACTION BY KENNETH BAKER, INDIVIDUALLY AND DBA BAKER ENTERPRISES, AND SARAH BAKER, INDIVIDUALLY AND DBA BAKER ENTERPRISES

 

 

·         This Motion to Strike is DENIED. 

 

·         When a cause of action is mixed between protected and unprotected activity, the trial court focuses on “the substance of” the lawsuit to determine whether it arose from the defendant's protected activities.  “It is the principal thrust or gravamen of the plaintiff's cause of action that determines whether the anti-SLAPP statute applies.”  (Scott v. Metabolife Internat., Inc. (2004) 115 Cal.App.4th 404, 413-14.)  Section 425.16 is implicated only when the allegations of constitutionally protected activity are not merely “incidental” to the unprotected conduct.  (Id. at 419.)

 

·         “The statutory phrase ‘cause of action … arising from’ means that the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech.  The critical point is whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech.”  (Id. at 414.)

 

·         Defendants argue that their protected activity (service of the notice to vacate) was so integral to Plaintiffs’ 3rd, 13th and 14th Causes of Action that the gravamen of the claims is a SLAPP suit. The argument lacks merit.  The 3rd, 13th and 14th Causes of Action arise from Defendants’ providing a rental premises that was uninhabitable and from Defendants’ failure or refusal to remediate the property.  All three causes of action would stand even without the allegation that Defendants served a Three-Day Notice to Vacate. Therefore, none of the causes of action “arises from” protected activity.  The Three-Day Notice was merely an incidental act in each cause of action.

                                     

·         If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, Plaintiff s are 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.

 

 

MOTION TO STRIKE PORTION OF COMPLAINT FOR MALICE, OPPRESSION, FRAUD AND PUNITIVE DAMAGES BY KENNETH BAKER, INDIVIDUALLY AND DBA BAKER ENTERPRISES, AND SARAH BAKER, INDIVIDUALLY AND DBA BAKER ENTERPRISES

 

 

·         This Motion to Strike the Entire 3rd Cause of Action is DENIED.

 

·         "A notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense.” (CRC Rule 3.1322(a).)  Defendants’ Notice states that Defendants move to strike the 3rd Cause of Action.  (Notice of Motion at 1:23-24.)  The ground for the motion is that “Plaintiffs have failed to plead facts necessary to support a claim for attorneys [sic] fees or for punitive and exemplary damages.”  (Notice of Motion at 1:26 – 2:1.)

 

·         The 3rd Cause of Action is for violation of Civil Code § 1942.5 (landlord retaliation).  Defendants cite no authority holding or implying that a failure to plead facts supporting attorney’s fees or punitive damages renders a claim under Civil Code § 1942.5 “irrelevant, false, or improper” or “not drawn or filed in conformity with” law or court rules.  (Code of Civ. Proc. § 436.)

 

·         Had Defendants instead moved to strike only specific allegations concerning attorney’s fees or punitive damages, the motion would fail for violation of CRC Rule 3.1322.(a) (failure to specify which portions of complaint to be stricken).

 

·         If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, Plaintiffs are 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

 

 

DEMURRER TO COMPLAINT of DE LA BARRE DE NANTEUIL BY KENNETH BAKER, INDIVIDUALLY AND DBA BAKER ENTERPRISES, AND SARAH BAKER, INDIVIDUALLY AND DBA BAKER ENTERPRISES

 

 

·         The Demurrer is defective for Defendants’ violating California Rules of Court Rule 3.1320(a).  (See Demurrer at 1:21-24.)

 

·         The Demurrer to the 1st Cause of Action is OVERRULED.  A demurrer accepts allegations as true.  If it is true that Defendants punctured Plaintiffs’ tires in order to “send a message” about Plaintiffs’ complaining about their rental unit (thereby trying to persuade Plaintiffs to stop complaining), then a fact finder could conclude that Defendants interfered with Plaintiffs’ quiet enjoyment.  The Complaint does not allege facts necessarily compelling the conclusion that the screws were the result of driving.

                                   

·         The Demurrer to the 2nd Cause of Action is OVERRULED.  Section 1941.1 states that a dwelling is “untenantable” if it lacks any of various enumerated characteristics “or is a residential unit described in Section 17920.3” of the Health and Safety Code.  The Complaint expressly alleges specific manners in which the rental unit failed to comply with H&S Code § 17920.3 (dampness in rooms, insufficient ventilation, general dilapidation).  (Complaint ¶ 19.) Thus, the Complaint alleges that Plaintiffs’ rental unit falls within the scope of Civil Code § 1941.1.

 

·         The Demurrer to the 3rd Cause of Action is OVERRULED.  The claim arises under 1942.5(c), which does not require an allegation that the tenant is current on rent.

 

·         The Demurrer to the 10th Cause of Action is OVERRULED.  The case cited by Defendants (Bock v. Hansen (2014) 225 Cal.App.4th 215, 233)  is inapplicable to negligent infliction of emotional distress.  The “high bar” argued by Defendants does not apply to a claim of negligence.

 

·         The Demurrer to the 11th Cause of Action is SUSTAINED with leave to amend.  Intentional infliction of emotional distress requires pleading and proof that the defendant intended to cause emotional distress (or acted with reckless disregard to causing emotional distress) upon Plaintiffs.  The Complaint alleges that Defendants misrepresented the property’s history of mold, refused to perform testing, refused to allow Plaintiffs to perform testing and damaged Plaintiffs’ automobile.  The Complaint does not allege that Defendants committed these acts with the intent or purpose of causing emotional distress to Plaintiffs.

 

·         The Demurrer to the 12th, 13th and 14th Causes of Action is OVERRULED.  Defendants’ contention that their companion Special Motion to Strike addresses the 12th Cause of Action is false.  The Special Motion to Strike addresses the 3rd, 13th and 14th Causes of Action.  Regardless, the fact of filing a special motion to strike is not a ground for demurrer.

 

·         Plaintiffs are granted leave of Court until August 13, 2014 to file an Amended Complaint addressing defects in the 11th Cause of Action. If none is filed or served, then Defendants shall file and serve an Answer no later than August 27, 2014.

 

·         Plaintiffs shall prepare a written order consistent with the Court’s ruling, pursuant to California Rules of Court, Rule 3.1312, and provide notice thereof to the Defendants as required by law and the California Rules of Court.

 

_____________________________________________________________________

9:00

5

CIV 528512       SKY IMD, INC., ET AL. VS. MICHAEL REICH, ET AL.

 

 

SKY IMD, INC.                         RONALD D. FOREMAN

MICHAEL REICH

 

 

MOTION TO COMPEL ARBITRATION AND STAY THIS ACTION BY DOUGLAS R. HANSON AND STEVEN G. THOMPSON

 

 

·         The Defendants Douglas R. Hanson and Steven G. Thompson's Motion to Compel Arbitration and Stay the Action is DENIED.  The nonsignatory bears the burden to establish he or she is a party to the arbitration agreement/provision covering the dispute.  Jones v. Jacobson (2011) 195 Cal.App.4th 1, 15.  The moving defendants have failed to meet that burden.  Defendants were (1) representing and acting on behalf of themselves when they sold the Sky IMD convertible notes or (2) acting in a representative capacity on behalf of the company.

 

·         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 Joseph E. Bergeron, Department 4.

 

_____________________________________________________________________

9:00

6

CIV 528971       EAST WEST BANK VS. AMBITION, INC., ET AL.

 

 

EAST WEST BANK                        PATRICIA H. LYON

AMBITION, INC.

 

 

APPLICATION FOR RIGHT TO ATTACH ORDER/WRIT OF ATTACHMENT AS TO DAVID ZHI YUAN ZHANG AND MEI HONG ZHANG FILED BY EAST WEST BANK

 

 

·         The Application for a Writ of Attachment in the amount of $1,976,297.92 is granted conditioned upon Plaintiff providing a $10,000.00 undertaking.

 

·         The Morris declaration states that Plaintiff extended a $3.3 million loan to borrowers.  A copy of the promissory note evidencing the loan is attached to his declaration at Ex. B.  The maturity date was June 17, 2013.  As an inducement to make the loan, the Zhangs executed commercial guaranties.  Copies are attached as Ex. I and J to the Morris declaration.  Plaintiff  has performed its only requirement under the loan as it disbursed the loan proceeds to or at the borrowers’ request.  (Id. at ¶ 9.)  The note is in default as borrowers failed to pay it off by the maturity date.  As of May 28, 2014, the principal balance was $1,536,267.01 plus $91,178.36 in interest, $85,892.00 in default interest and late charges of $7,200.00 for a total due of $1,720,537.82.  (Id. at ¶¶ 11-12.)  Despite a demand, the Zhangs have failed to pay the amount due.  (Id. at ¶13.)

 

·         CCP § 489.210 provides that before issuance of a writ of attachment, the plaintiff shall file an undertaking to pay the defendant any amount the defendant may recover for any wrongful attachment by the plaintiff.  The amount of the undertaking shall be $10,000.00.  (Section 489.220.)

 

·         Prevailing party is directed to prepare a written order consistent with the Court’s ruling, 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.

 

_____________________________________________________________________

9:00

7

CLJ 522086       CAPITAL ONE BANK (USA), N.A. VS. JAMES M. SCHINDLER

 

 

CAPITAL ONE BANK (USA), N.A.          ANITA H. SINGH

JAMES M. SCHINDLER                    PRO/PER

 

 

MOTION FOR JUDGMENT ON THE PLEADINGS BY CAPITAL ONE BANK (USA), N.A.

 

 

·         The Plaintiff’s uncontested Motion for Judgment on the Pleadings is GRANTED.  CCP § 438 (h) (1).  Plaintiff’s Complaint states a valid cause of action for common counts against Defendant.  In the Answer to the Complaint, Defendant has failed to deny any of the allegations set forth in the Complaint and has failed to assert any affirmative defenses.  In addition, Defendant agrees to the balance on the Capital One account in his Answer to the Complaint.

 

·         The prevailing party is directed to prepare a written order consistent with the court's tentative ruling for the court's signature, pursuant to CRC 3.1312, and to provide notice thereof to all counsel as required by law and the California Rules of Court.  A copy of the order is to be delivered directly to Judge Joseph E. Bergeron in Department 4.

 

_____________________________________________________________________

9:00

8

CLJ 528082       YASUHITO BRANDON OSHIMA VS. JACKIE MCDUFF OSHIMA, ET

                   AL.

 

 

YASUHITO BRANDON OSHIMA               PRO/PER

JACKIE MCDUFF OSHIMA                  KATHRYN IRENE PHILLIPS

 

 

MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINITFF'S COMPLAINT BY JACKIE MCDUFF OSHIMA, MITSUHARU OSHIMA AND KATHRYN IRENE PHILLIPS

 

 

·         Moot. 

 

 

DEMURRER TO COMPLAINT of OSHIMA BY JACKIE MCDUFF OSHIMA, MITSUHARU OSHIMA AND KATHRYN IRENE PHILLIPS

 

 

·         Moot. First Amended Complaint has been filed. 

 

_____________________________________________________________________

9:00 – Special Set

9

CIV 515707       SANDRA ROSENBERG VS. MERIDIAN BAY HOMEOWNERS

                   ASSOCIATION, ET AL.

 

 

SANDRA ROSENBERG                      SIMON OFFORD

MERIDIAN BAY HOMEOWNERS ASSOCIATION   AMANDA UHRHAMMER

 

 

REHEARING PURSUANT TO APPELLATE DECISION ORDERING A REHEARING REGARDING THIS COURT’S ORDER TO ENFORCE COMPLIANCE AND COMPEL PRODUCTION OF DOCUMENTS

 

 

·         With respect to the ongoing issue over the attorney-client privilege in this matter, the Court hereby issues the following ruling:

 

·         Within Meridian’s 4th Amended Privilege Log there are several e-mails which Meridian states are not privileged.  The Court is treating each e-mail (within an e-mail string) as a separate communication for which a privilege may or may not be applicable. The Tabs in the Privilege Log within which such “not privileged” e-mails appear are:  Nos. 1 – 6, 20 - 25, 44, 57, 58, 62 – 64, 74 and 75.

 

·         This unprivileged  material is to be produced within 5 days of this ruling.

 

·         Appearance by counsel is required July 31, 2014 in Department 4 at 9:00 a.m.

 


 

 

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

 

JULY 31, 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 523583       THOMAS RAYMOND MATTIAS, ET AL. VS. BEVERLY ANN MARIE

                   LEE, ET AL.

 

 

THOMAS RAYMOND MATTIAS                JOHN N. FRYE

BEVERLY ANN MARIE LEE                 NORINE BUSSER

 

 

MOTION TO CONTINUE TRIAL BY BEVERLY ANN MARIE LEE AND EXECUTIVE CHOICE TRANSPORTATION

 

 

·         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

 

JULY 31, 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 527328       CHRISTOPHER W. LOGAN, ET AL. VS. CHRISTOPHER RANKEN,

                   ET AL.

 

 

CHRISTOPHER W. LOGAN                  MICHAEL G. THOMAS

CHRISTOPHER RANKEN                    ANTHONY L. RANKEN

 

 

MOTION FOR PRELIMINARY INJUNCTION BY CHRISTOPHER W. LOGAN AND BRIAN

M. CASEY

 

 

·         DENIED. Plaintiffs and moving parties have failed to satisfy their burden of demonstrating a likelihood of success on the merits and their burden of demonstrating irreparable harm if the injunction is not granted under CCP 526.  Further, the relief sought is beyond the scope of the complaint.  The modified request raised for the first time in the reply requiring notice and disclosure is not appropriately before the Court as it is neither noticed nor is an opportunity to reply presented by raising it in the reply.  

 

_____________________________________________________________________

2:00

2

CIV 523986       DENISE M. MCGUIRE VS. CHRISTOPHER LANGE BURNETT

 

 

DENISE M. MCGUIRE                     BENJAMIN P. SMITH

CHRISTOPHER LANGE BURNETT             JOSEPH J.M. LANGE

 

 

MOTION TO STRIKE OR, IN THE ALTERNATIVE, TAX COSTS BY CHRISTOPHER LANGE BURNETT

 

 

·         The Motion to Strike Costs is DENIED.  The Motion to Tax Costs is GRANTED.  Petitioner is the prevailing party in this action as a majority or most of the relief requested was granted.  Petitioner is thus entitled to costs for filing fees pursuant to CCP 1033.5.  However, Petitioner is not entitled to costs for messenger fees associated with filing documents in this matter as such fees are not necessary, but merely convenient.  See Nelson v. Anderson (1999) 72 Cal.App.4th 111, 132.  CCP 1033.5 (c)(2).  If Petitioner continues to seek costs from the actual filing fees, an amended memorandum of costs should be filed reflecting only actual filing fees.    

 

_____________________________________________________________________

 

 

 


POSTED:  3:00 PM

 

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