July 23, 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 ELIZABETH K. LEE

Department 17

 

400 County Center, Redwood City

Courtroom 2M

 

JULY 17, 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 518271       MICHAEL MYERS, ET AL. VS. GEORGE CRESSON, ET AL.

 

 

MICHAEL MYERS                         JEFFREY H. BELOTE

GEORGE CRESSON                        PAUL F. UTRECHT

 

 

MOTION TO COMPEL DEPOSITION OF PLAINTIFF MICHAEL MYERS AND FOR MONETARY SANCTIONS BY DEFENDANT GEORGE CRESSON

 

 

·         Defendant George Cresson’s Motion to Compel the Deposition of Plaintiff Michael Myers is GRANTED.  Defendant has served a valid deposition notice upon Plaintiff’s counsel for the deposition of Michael Myers.  Plaintiff’s counsel’s initial objection to the deposition notice on the availability of Mr. Myers and/or Plaintiff’s counsel was proper.  However, following that, Plaintiff’s counsel had an obligation to provide Defendant with alternative dates for the deposition of Mr. Myers and did not do so.  Withholding dates for the deposition of Mr. Myers based upon issues relating to Defendant’s prior discovery conduct (which are not the subject of this motion) is improper.  The rest of Plaintiff’s objections to the deposition of Mr. Myers are without merit.

 

·         Defendant George Cresson’s Motion for Monetary Sanctions is GRANTED. Plaintiff shall pay Defendant $250 as a monetary sanction for bringing the motion to compel.

 

·         Plaintiff’s request for monetary sanctions from defendant George Cresson is DENIED.

 

·         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 Elizabeth K. Lee, Department 17.

 

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9:00

2

CIV 519709       IRMA MEDRANO VS. WESTERN INVENTION SUBMISSION

                   CORPORATION, ET AL.

 

 

IRMA MEDRANO                          PAUL G. MINOLETTI

WESTERN INVENTION SUBMISSION CORP.    JEFFREY D. POLSKY

 

 

MOTION TO ENFORCE SETTLEMENT AGREEMENT BY PLAINTIFF IRMA MEDRANO

 

 

·         Plaintiff Irma Medrano’s Motion to Enforce Settlement Agreement is DENIED pursuant to CCP § 664.6.

 

·         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 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 Elizabeth K. Lee, Department 17.

 

 

MOTION TO SET ASIDE PLAINTIFF'S NOTICE OF SETTLEMENT BY DEFENDANTS WESTERN INVENTION SUBMISSION CORPORATION, WESTERN INVENTHELP AND INTROMARK, INC.

 

 

·         Defendants Western Invention Submission Corporation, Western Inventhelp and Intromark, Inc.’s Motion to Set Aside Notice of Settlement is GRANTED pursuant to CRC § 3.1385(c)(2) and CCP § 664.6. 

 

·         The parties have a fundamental disagreement over whether the term “Plaintiff’s counsel” as contemplated in the April 4, 2014 Stipulation to Settle includes Attorney Kelton Burgess.  Thus it would appear that this term is not sufficiently certain for the Court to enforce the settlement agreement.  See Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810-813.

 

·         In the alternative, Mr. Burgess’ behavior at the mediation conference and e-mails to Defendants’ counsel indicates that he likely was and is acting as additional counsel for Plaintiff.  In that case, Mr. Burgess’ refusal to sign the final settlement agreement is a repudiation of a material term of the Stipulation to Settle such that Defendants are excused from performance under the agreement.  Ferguson v. City of Cathedral City (2011) 197 Cal.App.4th 1161, 1168.

 

·         In either scenario, the Court will not enforce this Stipulation to Settle.  Plaintiff’s Notice of Settlement is hereby STRICKEN.

 

·         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 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 Elizabeth K. Lee, Department 17.

 

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9:00

3

CIV 520886       DAVID MANITO, ET AL. VS. BINGQING BUFFET, INC., ET

                   AL.

 

 

DAVID MANITO                          MICHAEL H. KIM

QIU HUA HUANG                         DANNING JIANG

 

 

MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF ENDRA FNU’S SPECIAL INTERROGATORIES (SET ONE) AND FOR SANCTIONS BY DAVID MANITO AND ENDRA FNU

 

 

·         On June 5, 2014, defendant Bingqing Buffet, Inc. served supplemental responses to the subject Interrogatories Nos. 1 and 2.  The Motion to Compel Further Responses to Special Interrogatories is moot and is DENIED on that ground.

 

·         The requests for monetary sanctions by Plaintiffs and Defendants are DENIED.

 

·         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 Elizabeth K. Lee, Department 17.

 

 

MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF ENDRA FNU’S REQUESTS FOR PRODUCTION OF DOCUMENTS (SET TWO) AND FOR SANCTIONS BY DAVID MANITO AND ENDRA FNU

 

 

·         Defendant served supplemental responses as to Requests Nos. 57 – 63. The motion is now moot as to those Requests for Production and is DENIED on that basis.

 

·         Plaintiffs’ Motion to Compel Further Responses to Requests Nos. 41 and 43 – 45 is GRANTED and Defendant Bingqing Buffet, Inc. is ordered to provide full and complete responses together with responsive documents.  The Court has determined that this information is directly relevant to the alter ego issue in this action.  The Court has balanced the interest of privacy versus the policy of obtaining just results in litigation and has determined that disclosure prevails.

 

·         Plaintiff’s Motion to Compel Further Responses to Requests Nos. 64 and 65 is GRANTED so that Defendant Bingqing Buffet, Inc. can provide a full and complete response together with responsive documents.  The Court has determined that this information is directly relevant to the alter ego issue in this action, and the Court has balanced the interest of privacy versus the policy of obtaining just results in litigation and has determined that disclosure prevails.

 

·         Defendant Bingqing Buffet, Inc. shall pay monetary sanctions to Plaintiffs in the amount of $1,060.00.  Said sanction shall be paid within 15 days after service of Notice of Entry of Order.

 

·         All ordered further responses shall be served, together with responsive documents, within 15 days after service of Notice of Entry of 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 Elizabeth K. Lee, Department 17.

 

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9:00

4

CIV 524652       WILLIAM ROBERT SUTTON, ET AL. VS. LOUIS ALLEN

                   LIBERTY, ET AL.

 

 

WILLIAM ROBERT SUTTON                 SAM WALKER

LOUIS ALLEN LIBERTY                   PRO/PER

 

 

DEMURRER TO CROSS-COMPLAINT of DEFENDANTS LIBERTY & ASSOCIATES AND LOUIS LIBERTY BY PLAINTIFFS WILLIAM ROBERT SUTTON, LARRY MALONEY AND NATIONAL AUTOMOBILE SAFETY COUNCIL, INC.

 

 

·         The general Demurrer to the 2nd Cause of Action for an Accounting, the 3rd Cause of Action for Breach of Partnership Contract and the 5th Cause of Action for Breach of Fiduciary Duty is OVERRULED.  Cross-Complainants have sufficiently alleged the required elements for both causes of action.

 

·         The Demurrer to the 1st Cause of Action for Account Stated is SUSTAINED with leave to amend.  Cross-Complainants have failed to state any of the necessary elements of this cause of action.

 

·         The Demurrer to the 4th Cause of Action for Quantum Meruit is SUSTAINED with leave to amend.  The acts Liberty performed were for the purpose of forming the business venture and he expected to receive a share of its profits.  There are no allegations that Sutton/Maloney or the company they formed specifically requested that Liberty perform services for them for which he would be paid. 

 

·         The Demurrer to the 6th Cause of Action for Conversion is SUSTAINED with leave to amend.  A mere contractual right of payment, without more, will not suffice.  Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 451-52.

 

·         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 Elizabeth K. Lee, Department 17.

 

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9:00

5

CIV 526232       TODD RICH VS. SUCCESS STRATEGIES INSTITUTE, INC., ET

                   AL.

 

 

TODD RICH                             CHARLES A. GRASSO

SUCCESS STRATEGIES INSTITUTE, INC.    MARGOT NELSON

 

 

MOTION FOR RELIEF FROM DEFAULTS BY DEFENDANTS FOUNDERS MANAGEMENT II CORP.; UNITED PACIFIC HOTEL GROUP, LP; INTERCONTINENTAL HOTEL GROUP RESOURCES, INC. AND SIX CONTINENTS HOTELS, INC.

 

 

·         Defendants Founders Management II Corp.; United Pacific Hotel Group, LP; Intercontinental Hotel Group Resources, Inc. and Six Continents Hotels, Inc.’s Motion to Set Aside Defaults is GRANTED pursuant to CCP § 473(b).  The Court has discretion to grant Defendants’ motion based on Counsel Simonian’s sufficient showing of excusable “mistake, inadvertence, surprise, or excusable neglect.”  CCP § 473(b).  Counsel is ordered to pay Plaintiff the sum of $500.00 pursuant to CCP § 473(c)(1).

 

·         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 Elizabeth K. Lee, Department 17.

 

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9:00

6

CIV 526555       HILDA MARQUEZ VS. ARVIN MATHEWS, ET AL.

 

 

HILDA MARQUEZ                         JOHN HENDRICKSON

ARVIN MATHEWS                         NATALIE S. BUSTAMANTE

 

 

MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT BY DEFENDANTS ARVIN MATTHEWS, INDIVIDUALLY AND DBA AUTO GALLERY

 

 

·         The Motion to Strike is DENIED.  Defendants have not established that the challenged allegations are not drawn in conformity with the law. 

 

·         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 Elizabeth K. Lee, Department 17.

 

 

DEMURRER TO COMPLAINT of MARQUEZ BY DEFENDANT ARVIN MATTHEWS, INDIVIDUALLY AND DBA AUTO GALLERY

 

 

·         The general Demurrer is OVERRULED as follows:

 

o   1st Cause of Action:  Defendants have not established that a motion to compel arbitration is the only remedy for the breach of an arbitration agreement nor that the agreement is not mandatory.  To the extent Defendants argue Plaintiff is not entitled to rescission, a demurrer is not the appropriate vehicle to challenge a portion of a cause of action demanding an improper remedy.  Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365.

 

o   2nd Cause of Action:  The facts alleged in the Complaint do not show clearly and affirmatively that the cause of action is barred by the Statute of Limitations.  CCP § 340(a) is applicable to actions for a penalty or forfeiture.  Defendants fail to show that, under the facts of this case, Plaintiff’s claim amounts to a penalty or forfeiture.  Furthermore, Defendants should note that, as an unpublished opinion, Harrelson may not be cited or relied upon.  CRC § 8.1115.  The exception for cases in which an unpublished opinion is relevant to the doctrine of the law of the case is not applicable here.  The law of the case doctrine states that when, in deciding an appeal, an appellate court states in its opinion a principal or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to through its subsequent progress in the lower court and upon subsequent appeal.  Kowis v. Howard (1992) 3 Cal.4th 888.  It does not permit an unpublished opinion to be cited or relied upon in a different case simply because it is relevant to the legal issue presented. 

 

o   3rd Cause of Action:  Defendants’ arguments in support of the Demurrer address only some of the violations alleged in this cause of action.   A demurrer will not lie to only part of a cause of action.  Kong v. City of Hawaiian Gardens Redevelopment Agency (2003) 108 Cal.App.4th 1028, 1047.    

 

·         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 Elizabeth K. Lee, Department 17.

 

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9:00

7

CLJ 517151       JUSTIN WHITLEY VS. PEAK CALIFORNIA RESTAURANT GROUP,

                   LLC

 

 

JUSTIN WHITLEY                        PRO/PER

PEAK CALIFORNIA RESTAURANT GROUP, LLC DAN C. SCHAAR

 

 

MOTION TO COMPEL PLAINTIFF'S ATTENDANCE AT DEPOSITION AND REQUEST FOR MONETARY AND TERMINATING SANCTIONS AND ATTORNEYS’ FEES FROM PLAINTIFF BY DEFENDANT PEAK CALIFORNIA RESTAURANT GROUP, LLC

 

 

·         Defendant Peak California Restaurant Group, LLC’s unopposed Motion to Compel Plaintiff’s Attendance at Deposition is GRANTED pursuant to CCP § 2025.450(a).  Plaintiff has refused to attend three separate depositions without serving a valid objection.  Thus, an order compelling attendance is warranted.  Plaintiff is ordered to appear for a deposition within twenty (20) days of service of notice of this order. 

 

·         Defendant’s Request for Sanctions is GRANTED in the amount of $390.00 pursuant to CCP § 2025.450(c)(1).

 

·         Defendant’s Request for Terminating Sanctions is DENIED.  Although Plaintiff engaged in a misuse of the discovery process under CCP § 2023.010(d), a condition precedent of terminating sanctions is the issuance of a discovery order.  See Housing Authority of the City of Alameda v. Gomez, (1972) 26 Cal.App.3d 366, 368. 

 

·         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 Elizabeth K. Lee, Department 17.

 

_____________________________________________________________________

9:00

8

CLJ 526329       CAVALRY SPV I, LLC vs. LUIS CROWE

 

 

CAVALRY SPV I, LLC                    BRIAN N. WINN

LUIS CROWE                            PRO/PER

 

 

MOTION TO DEEM FACTS AS ADMITTED AND REQUEST FOR ATTORNEY FEES PLUS FILING FEE BY PLAINTIFF CAVALRY SPV I, LLC

 

 

·         Plaintiff Cavalry SPV I, LLC’s unopposed Motion to Deem Matters Admitted is GRANTED pursuant to CCP § 2033.280.  All those matters in Plaintiff’s Request for Admissions [Set 1], dated April 10, 2014, are hereby deemed admitted.  Defendant Luis Crowe is also ordered to pay Plaintiff monetary sanctions in the amount of $260 pursuant to CCP § 2033.280(c).  Said monetary sanctions shall be paid within 10 days of service of the order granting the sanctions.

 

·         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. 

 

_____________________________________________________________________

9:01

9

CIV 507680       STEVEN EDELMAN, ET AL. VS. NICHOLSON-LAMB VENTURE LP,

                   ET AL.

 

 

STEVEN EDELMAN                        G. SCOTT EMBLIDGE

NICHOLSON-LAMB VENTURE LP             ELIZABETH M. PAPPY

 

 

MOTION TO BE RELIEVED AS COUNSEL FOR DEFENDANT NICHOLSON-LAMB VENTURE, L.P. BY ELIZABETH M. PAPPY

 

 

·         Counsel Elizabeth M. Pappy’s Motion to be Relieved as Counsel for Defendant Nicholson-Lamb Venture, L.P. is GRANTED.  Counsel has served this motion on her client, as is required by CRC § 3.1362(d).

 

·         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. 

 

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POSTED:  3:00 PM

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