February 10, 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 donald j. ayoob

Department 27

 

400 County Center, Redwood City

Courtroom 7B

 

Thursday, February 4, 2016

 

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

1

CIV 526546       ROSE BLUM VS. SEQUOIA MEDICAL ASSOCIATES, INC.

 

 

ROSE BLUM                             DANIEL L. FEDER

SEQUOIA MEDICAL ASSOCIATES, INC.      SUSAN ZEME

 

 

MOTION FOR SUMMARY ADJUDICATION OF ISSUES BY SEQUOIA MEDICAL

ASSOCIATES, INC.

 

 

Defendants Sequoia Medical Associates, Marie President and Khorshed Madan’s Motion for Summary Adjudication of the First, Second, Third and Sixth causes of action in the Plaintiff’s First Amended Complaint is being considered as a Motion for Summary Adjudication of the First, Second, Third and Tenth causes of action in the Plaintiff’s Second Amended Complaint because after the motion was filed, Plaintiff filed her Second Amended Complaint and the causes of action are the same, even though renumbered.

 

 

With regard to the First, Second, Third and Tenth causes of action in the Plaintiff’s Second Amended Complaint, the Defendants met the burden of showing that a cause of action has no merit by showing that one or more elements of the cause of action cannot be established and thus, shifted the burden to Plaintiff to show that there is a triable issue of fact.

 

 

Plaintiff has presented evidence to show that a triable issue of one or more material facts exists as to the 1st, 2nd, and 10th causes of action based on alleged violations of Labor Code § 1102.5(b) and (c), which prohibit retaliation against an employee who makes a report of, or refuses to participate in, an act that would result in violation of state or federal law.

 

 

To establish a prima facie case of retaliation, a plaintiff must show: (1) she engaged in a protected activity, (2) her employer subjected her to an adverse employment action, and (3) there is a causal link between the two. Mokler v. County of Orange (2007) 157 Cal. App. 4th 121, 138.

 

Plaintiff has presented evidence that she engaged in a protected activity prior to her termination, and that the protected activity is linked to her termination. Plaintiff presented evidence that she verbally reported issues regarding billing fraud and Defendants’ failure to report income to the IRS to Dr. President before she was terminated. When allegedly instructed to stay silent, Plaintiff refused, and shortly thereafter was terminated.

 

 

Defendants argue that there was no retaliation and that Defendants did not know of Plaintiff’s report to the authorities about the suspected activity. Defendants argue that the reasons for Plaintiff’s termination were an allegedly defamatory letter sent to a prospective employee by Plaintiff and business needs.

 

 

Whether Plaintiff engaged in a protected activity prior to her termination, whether Defendants knew of Plaintiff’s protected activity, whether that protected activity is causally linked to her termination, and if Defendants have a legitimate and non-discriminatory reason for Plaintiff’s termination are all unresolved questions of fact for the trier of fact.

 

 

Accordingly, Summary adjudication IS DENIED as to the 1st, 2nd, and 10th causes of action.

 

 

With regard to the 3rd cause of action for retaliation in violation of Health and Safety Code § 1278.5, Plaintiff has presented no opposition, therefore conceding that summary adjudication is appropriate. Health and Safety Code § 1278.5 does not apply to Defendant Sequoia Medical Associates because it is not a "health facility" as defined in that section. Also, Plaintiff's complaints did not relate to "suspected unsafe patient care and conditions" as required by § 1278.5, therefore this code section is inapplicable.

 

 

Summary adjudication IS GRANTED as to the 3rd cause of action.

 

 

Ruling on Plaintiff Rose Blum’s Objections to Defendant Sequoia Medical Associates’ Evidence in Support of its Motion for Summary Adjudication of Issues is as follows: OVERRULED as to nos. 1, 2, 3, 4, and 5.

 

 

Ruling on Defendant Sequoia Medical Associates’ Objections to Plaintiff’s Evidence in Support of Opposition to Motion for Summary Adjudication of Issues is as follows: OVERRULED as to nos. 2, 3, 4, 5 and 6 and SUSTAINED as to no. 1.

 

 

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

 

_____________________________________________________________________


9:00

2

CIV 534561    MALTBY ELECTRIC SUPPLY CO., INC. VS. TJ WARD &

                ASSOCIATES CONTRACTING, ET AL.

 

 

MALTBY ELECTRIC SUPPLY CO., INC.      ALAN L. BRODKIN

TJ WARD & ASSOCIATES CONTRACTING

 

 

MOTION TO COMPEL RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS BY WILLIAM CRIST.

 

 

Counsel for Defendant Crist having notified the Court that the Motion is withdrawn, the matter is off calendar.

 

_____________________________________________________________________


9:00

3

CIV 535458       MARY BETH JUKICH VS. COUNTY OF SAN MATEO, ET AL.

 

 

MARY BETH JUKICH                      DAN M. HIMMELHEBER

COUNTY OF SAN MATEO                   JAN E. ELLARD

 

 

DEMURRER TO FIRst Amended COMPLAINT of JUKICH BY COUNTY OF SAN MATEO, ET AL.

 

 

A Second Amended Complaint having been filed by Stipulation of the parties, the Demurrer is MOOT.

 

_____________________________________________________________________


9:00

4

CIV 536319    FIDELITY NATIONAL TITLE INSURANCE COMPANY VS. 400

                 CONVENTION WAY, LLC.

 

 

FIDELITY NATIONAL TITLE INSURANCE COMPANY  SCOTT HAMMEL

400 CONVENTION WAY, LLC               MICHAEL B. BROWN

 

 

DEMURRER TO COMPLAINT of FIDELITY NATIONAL TITLE INSURANCE COMPANY BY 400 CONVENTION WAY, LLC.

 

A First Amended Complaint having been filed January 26, 2106, the Demurrer is MOOT.

 

_____________________________________________________________________


9:00

5

CLJ 496709       COLLECT ACCESS VS. TERESA J. MCCANN-WALLER ET AL

 

 

COLLECT ACCESS LLC                    TAPPAN ZEE

TERESA J. MCCANN-WALLER

 

 

MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT BY TERESA J. MCCANN-WALLER

 

Defendant Teresa J. McCann-Waller aka Teresa J. McCann Request for Judicial Notice is GRANTED to Evidence Code §§451(d) and 452(b)

 

The unopposed motion by defendant Teresa J. McCann-Waller aka Teresa J. McCann to set aside the default and default judgment in this action is GRANTED pursuant to CCP §473(d). Personal jurisdiction over a defendant outside the forum requires that she have certain minimum contacts with the forum such that maintenance of the lawsuit does not offend traditional notions of fair play and substantial justice. Yu v. Signet Bank Virginia (1999) 69 Cal App 4th 1377, 1386-87.

 

There is an absence of sufficient contacts to warrant the exercise of jurisdiction over this defendant in California. From April 1997 through March 2007, defendant owned and resided in her home in Richmond, Indiana. Since March 2007 she has resided in Brunswick, Georgia Defendant has never resided in California. Her residence in Georgia was known to Plaintiff as it attempted to serve her there. And the purported debt which is the basis for this action is entirely unrelated to the state of California. It was accrued between defendant while she resided in Indiana and Washington Mutual bank, a bank that was headquartered in Seattle, Washington.

 

The plaintiff’s election to proceed against defendant in California was a violation of basic due process and fair play.

 

_____________________________________________________________________


9:00

6

CLJ 531385       DANIEL CABALLERO VS. OLGA LENKOV, ET AL.

 

 

DANIEL CABALLERO                      T. TROY OTUS

OLGA LENKOV                           DANIEL J. JUNGWIRTH

 

 

MOTION TO COMPEL RESPONSES TO FORM INTERROGATORIES, SET ONE,

SPECIAL INTERROGATORIES, SET ONE, DEMAND FOR INSPECTION, SET ONE AND MONETARY SANCTIONS BY OLGA LENKOV

 

 

The motion to compel is granted.  Plaintiff shall serve verified responses to the form interrogatories, special interrogatories and inspection demand within 15 days of service of the court’s order. 

 

The request for sanctions is also granted.  Plaintiff shall pay defendant $390 pursuant to CCP §2030.290(c) and §2031.300(c) within 15 days of service of the court’s order.

 

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 Donald J. Ayoob, Department 27.

 

_____________________________________________________________________


9:00

7

CLJ 534475       HOUSING AUTHORITY OF COUNTY OF SAN MATEO VS. VIDA

                    CAPITAL GROUP, LLC

 

 

HOUSING AUTHORITY OF THE COUNTY OF SAN MATEO   JOHN C. BEIERS

VIDA CAPITAL GROUP, LLC               EDWARD L. BLUM

 

 

MOTION FOR ORDER OF DISCHARGE, ATTORNEY'S FEES AND COSTS BY HOUSING AUTHORITY OF THE COUNTY OF SAN MATE

 

The motion for discharge is GRANTED. Plaintiff Housing Authority has established competing claims to the funds at issue, that it has deposited those funds with the Court, and that it continues to do so on a monthly basis. An order discharging Plaintiff Housing Authority is appropriate. (Code of Civ. Proc. § 386.)

 

Plaintiff’s request for costs is granted in the amount of $237.50, to be paid from the amount deposited with the Court.

 

Plaintiff’s request for attorney’s fees is DENIED. The court finds that Plaintiff is entitled to recovery of reasonable attorney’s fees. (Code of Civ. Proc. § 386.6, subd. (a).) Plaintiff’s evidence, however, does not support a specific amount of reasonable fees. The Declaration of Sheth sets forth a narrative of work, but concludes only with “I have spent a total of 41.9 hours on this matter.” (Declaration of Sheth ¶ 14”].) This is the equivalent of block billing, which the Court does not endorse. (See Christian Research Inst. v. Alnor (2008) 165 Cal. App. 4th 1315, 1324 [“the use of block billing obscured the nature of some of the work claimed”].) The Court may “exercise its discretion in assigning a reasonable percentage to (block-billed) entries, or simply cast them aside” (Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672, 689.) Here, however, it is not even possible for the Court to assign a percentage for recoverable fees, because Plaintiff offers no breakdown of the claimed 41.9 hours.

 

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

 

_____________________________________________________________________


9:00

8

CLJ 534491       RANDY FELTON, ET AL. VS. VIDA CAPITAL GROUP, LLC

 

 

RANDY FELTON                          SHIRLEY E. GIBSON

VIDA CAPITAL GROUP, LLC               EDWARD L. BLUM

 

 

MOTION FOR ORDER OF DISCHARGE, PROTECTIVE ORDER, AND ATTORNEYS FEES BY RANDY FELTON, ET AL.

 

Plaintiffs RANDY FELTON; THOMAS GARVIN; DOUGLAS THOMAS; and TIMOTHY GALLEGOS’ Motion for Discharge from Interpleader Action is GRANTED pursuant to Code Civ. Proc. § 386.5.  Plaintiffs are discharged from liability for the amounts in dispute.  Plaintiffs and Defendant VIDA CAPITAL GROUP, LLC are in agreement that the total sum of Plaintiffs’ rents due through January 2016 is no less than $2,943.00, and it appears that additional funds have been deposited for February 2016 in an amount of no less than $116.

 

Plaintiffs’ request for attorney’s fees is GRANTED in the amount of $2,000.00 for Ms. Gibson and $1,000.00 for Mr. Chantler which is to be awarded from the amount in dispute which has been deposited with the Court, pursuant to Code Civ. Proc. § 386.6(a).

 

Plaintiffs’ Request for Judicial Notice is GRANTED insofar as the documents for which judicial notice is sought were filed with the San Mateo County Superior Court, but not as to the truth of any matters asserted therein.

 

____________________________________________________________________________

 

 

 

 

 


POSTED:  3:00 PM

 

© 2016 Superior Court of San Mateo County