January 30, 2015
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 C. SCOTT

Department 25

 

400 County Center, Redwood City

Courtroom 2G

 

Thursday, January 29, 2015

 

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 505103       DAVID KAROW, ET AL. VS. CARMEN M. MADRIGAL, ET AL.

 

 

DAVID KAROW                           JOSHUA JK HENDERSON

CARMEN MENDOZA-MADR IGAL              MARK C. RASKOFF

 

 

MOTION FOR ORDER GRANTING DAN H. BALL'S PRO HAC VICE APPLICATION BY EVENFLOW COMPANY, INC.

 

 

·         The Application to Appear as Counsel Pro Hac Vice for Defendant Evenflow Company, Inc. by Dan H. Ball is GRANTED. Mr. Ball has met all of the requirements of California Rules of Court, Rule 9.40, which are the only requirements to be eligible for admission pro hac vice.

 

·         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 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 C. Scott, Department 25.

 

_____________________________________________________________________


9:00

2

CIV 506104       IN RE: $3,722.00

 

 

PEOPLE OF THE STATE OF CALIFORNIA     DISTRICT ATTORNEY'S OFFICE

SHAUN ESPINOZA

 

 

MOTION FOR ORDER COMPELLING RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS AND FOR MONETARY SANCTIONS BY PEOPLE OF THE STATE OF CALIFORNIA

 

 

·         Moot.  Case was set for trial on January 26, 2015.

 

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9:00

3

CIV 522728       ALANNA ANDRUS VS. CITY OF REDWOOD CITY

 

 

ALANNA ANDRUS                         KATRIN M. CUSACK

CITY OF REDWOOD CITY                  TODD H. MASTER

 

 

MOTION TO AUGMENT EXPERT WITNESS LIST TO ADD TAMARA ROCKHOLT BY CITY OF REDWOOD CITY

 

 

·         The Motion is GRANTED to the extent Defendant seeks to designate an expert regarding the cost of future medical treatment.  Plaintiff does not dispute that she only recently informed the City of the need for a future surgery.  In addition, there is no indication Plaintiff will suffer any prejudice from the designation of an expert on this issue. Finally, Defendant has served an amended disclosure and offered to make its expert immediately available for deposition.  

 

·         The Motion is, however, DENIED as to any testimony regarding the amount of Plaintiff’s past medical expenses under Howell.  Defendant has not established that it would not, in the exercise of reasonable diligence, have determined to designate an expert on this issue.

 

·         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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9:00

4

CIV 523280       JOSEPH HAJOST VS. PURFRESH, INC., ET AL.

 

 

JOSEPH HAJOST                         RANDALL M. WIDMANN

PURFRESH, INC.                        MICHAEL J. IOANNOU

 

 

MOTION TO QUASH SERVICE OF SUMMONS FOR LACK OF PERSONAL JURISDICTION BY PC ENGINEERING SRL

 

 

  • The Motion to Quash Service of Summons for Lack of Jurisdiction brought by Cross-defendant, PC Engineering SRL (“PCE”) is GRANTED. The Court finds there is no constitutionally sufficient basis for the State of California to exercise jurisdiction over Cross-defendant, PCE. The Court notes that there is considerable question as to the significance of the Cesare Catelli emails that were authored while in his capacity working with P.C. di Pompeo Catelli s.r.l.

 

  • In addition, the Court declines Cross-complainant’s, request for an advisory opinion regarding the status of its Opposition and the need for discovery. While discovery is allowed in such Motions it should have been requested before the Court has rendered a tentative.

 

  • The subject Motion having been granted, Cross-defendant, PC Engineering SRL is dismissed from the Cross-complaint without prejudice, pursuant to Code of Civil Procedure section 581(h).

 

  • 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 Joseph C. Scott, Department 25.

 

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9:00

5

CIV 524391       ELIZABETH WHITE VS. JEFFERSON UNION COUNTY SCHOOL

                   DISTRICT

 

 

ELIZABETH WHITE                       MICHAEL FLYNN

JEFFERSON UNION COUNTY SCHOOL DISTRICT JOHN A. SHUPE

 

 

DEMURRER TO, AND ALTERNATIVE MOTION TO STRIKE ALLEGATIONS, 2nd Amended COMPLAINT of ELIZABETH WHITE BY JEFFERSON UNION COUNTY SCHOOL DISTRICT

 

 

  • Defendant’s Request for Judicial Notice is granted.

 

  • Defendant's Demurrer to the 2nd Amended Complaint is SUSTAINED IN PART AND OVERRULED IN PART. 

 

  • Although the 1st-4th Causes of Action would barred by the statute of limitations (Government Code 945.6(a)(1)), Plaintiffs have sufficiently alleged equitable estoppel.  It should be noted that the tolling provisions provided in CCP §352(a) for a person either under the age of majority or lacking the legal capacity to make decisions at the time the cause of action accrued do not apply to an action against a public entity upon a cause of action for which a claim is required to be presented.  (CCP §352(b)) 

 

  • The 5th and 6th Causes of Action are not barred by the 2-year statute of limitations as they are based upon the same set facts previously alleged and therefore relate back to the original complaint.

 

  • Although is true that local governing bodies can be sued directly under 42 USC §1983 (Monell v. Dep’t of Soc. Servs. Of New York (1978) 436 U.S. 658) for actions that are unconstitutional, implement or execute a policy statement, ordinance, regulation or decision officially adopted and promulgated by that body's officers, California law holds that school districts are not local government units but are instead arms of the state and therefore subject to 11th amendment immunity (Kirchmann v. Lake Elsinore Unified Sch. Dist. (2000) 83 Cal App 4th 1098, 1115; Belanger v. Madera Unified Sch. Dist., 963 F.2nd 248, 251 (9th Cir.  1992)) Therefore, Defendant's Demurrer to the 6th Cause of Action based upon a violation of §1983 is SUSTAINED WITHOUT LEAVE TO AMEND.

 

  • The Demurrer upon the ground that the causes of action were not fairly reflected in the claims for damages presented to the School District is OVERRULED.

 

  • Defendant's Motion to Strike is DENIED.

 

  • Defendant shall file its Answer no later than February 17, 2015.

 

  • 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 C Scott, Department 25.

 

_____________________________________________________________________


9:00

6

CIV 526528       PORTFOOIO RECOVERY ASSOCIATES, LLC VS. SUHAIL E.

                   KHOURY, ET AL.

 

 

PORTFOLIO RECOVERY ASSOCIATES         JOHN GOODMAN

SUHAIL E. KHOURY                      MITCH O. ONU

 

 

MOTION FOR SUMMARY JUDGMENT AS TO COMPLAINT of PORTFOLIO RECOVERY ASSOCIATES, LLC FILED BY SUHAIL E. KHOURY

 

 

·         Defendant Khoury’s objection to Plaintiff’s late filed opposition, and request to strike the opposition is DENIED. Although the opposition was technically untimely under CCP §437c(b), the Defendant had sufficient time and did submit a timely filed reply brief on the merits.

 

·         Regarding Defendant Khoury’s objections to the declarations of attorney John Goodman and Plaintiff’s employee Maria Marin, the Court is sustaining Objections 1 and 2 to the declaration of John Goodman. The Court is sustaining objections 1, 2, 5, 6, 7, 8, 9 and 10 to the declaration of Maria Marin. The court is overruling objections 3 and 4 to the declaration of Maria Marin.

 

·         Defendant Khoury’s Motion for Summary Judgment is GRANTED. Defendant has met his initial burden under CCP §437c(p)(2) of demonstrating that Plaintiff cannot establish one or more elements of the cause of action. The sole cause of action is this complaint is for an account stated.

 

·         An account stated is a document or a writing which exhibits the state of an account between parties and the balance owing one to the other and when assented to, either expressly or impliedly becomes a new contract.[Biltmore Press v. Usadel (1970) 6 Cal. App. 3d 896]. An account stated is a form of novation. [See Civil Code 1530, 1531(1), 1532]. In this case, there was no novation and Defendant has established that there was no agreement as to the balance due. Defendant Khoury has shown that he never agreed that the claimed sum owed was the correct sum. He also specifically disputed the alleged amount due on his account. Defendant Khoury has demonstrated that he never either expressly or impliedly promised to pay Wells Fargo or the plaintiff the amount now claimed to be due. Plaintiff has not provided a single writing with defendant’s signature or any backup documentation which would establish that defendant agreed to pay the amount set forth in the complaint or that it was the correct amount. Establishing an account stated requires an agreement between the debtor and his creditor that a certain sum shall be paid and accepted in discharge of the debtor’s obligation. [See also Zinn v. Fred R. Bright Co. (1969) 271 Cal App 2d 597, 600]. No such agreement can be established.

 

·         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 Joseph C. Scott, Department 25.

 

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9:00

7

CIV 530276       MARINA FRANCO, ET AL. VS. BRUCE G. HEATHCOTE, ET AL.

 

 

MARINA FRANCO                         A. K. ABRAHAM

BRUCE G. HEATHCOTE                    DENNIS L. FAORO

 

 

DEMURRER TO 1st Amended COMPLAINT of MARINA FRANCO BY GERALD E. HEATHCOTE

 

 

Defendant BRUCE HEATHCOTE, individually and dba MID PENINSULA MANAGEMENT, and Defendant GERALD HEATHCOTE, individually and dba MPM MAINTENANCE, have filed separate but essentially identical Demurrers to Plaintiffs’ First Amended Complaint.  Plaintiffs filed a joint Opposition, and Defendants filed a joint Reply.  Accordingly, the Court rules on both Demurrers jointly, as follows:

 

  • OVERRULED on standing grounds.

 

  • OVERRULED as to the First Cause of Action for breach of contract; Second Cause of Action for breach of the implied covenant of good faith and fair dealing; Fourth Cause of Action for breach of fiduciary duty; Fifth Cause of Action for intentional misrepresentation; Sixth Cause of Action for negligent misrepresentation; Seventh Cause of Action for violation of Bus. & Prof. Code § 10148; Eighth Cause of Action for defective construction / repair; Ninth Cause of Action for unfair business practices; and Tenth Cause of Action for an accounting.

 

  • SUSTAINED WITHOUT LEAVE TO AMEND as to the Third Cause of Action for negligence.  An omission to perform a contract obligation is never a tort, unless that omission is also an omission of an independent legal duty.  Erlich v. Menezes (1999) 21 Cal.4th 543, 562.

 

  • Defendants shall file their Answers to the 1st Amended Complaint no later than February 13, 2015.

 

  • 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.

 

 

DEMURRER TO 1st Amended COMPLAINT of MARINA FRANCO BY BRUCE G. HEATHCOTE

 

 

·         See above.

 

_____________________________________________________________________


9:00

8

CLJ 516864       DEREK KNOPP VS. SANTANDER CONSUMER, ET AL.

 

 

DEREK KNOPP                           PRO/PER

CALIFORNIA REPOSSESSORS

 

 

MOTION TO VACATE DEFAULT JUDGMENT AND DISMISS COMPLAINT FILED BY DEREK KNOPP

 

 

·         The Defendant/Cross-Complainant has consented the Motion.  The unopposed Motion is GRANTED.

 

·         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 Joseph C. Scott, Department 25.

 

_____________________________________________________________________


9:00

9

CLJ 523869       WELLS FARGO BANK, N.A. VS. AMITA S. KUMAR

 

 

WELLS FARGO BANK NA                   ANGELA ALEXANDRA VELEN

AMITA S. KUMAR

 

 

MOTION TO VACATE THE DISMISSAL AND ENTER JUDGMENT PURSUANT TO STIPULATION BY WELLS FARGO BANK, N.A.

 

 

·         The unopposed Motion to Enter Judgment Pursuant to CCP §664.6 by Plaintiff Wells Fargo Bank N.A. is GRANTED.  Defendant Amita S. Kumar has defaulted under the terms of the Stipulated Settlement Agreement.  Plaintiff is awarded a judgment in the amount of $8,237.86 principal and costs in the amount of $355.00 pursuant to the declaration of counsel.

 

·         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 Joseph C. Scott, Department 25.

 

_____________________________________________________________________


9:01

10

CIV 514498       BERNARDO R. CARRERA, ET AL. VS. FREMONT INVESTMENT &

                   LOAN, ET AL.

 

 

BERNARDO R. CARRERA                   TIMOTHY MCCANDLESS

FREMONT INVESTMENT & LOAN             ELENA K. KOUVABINA

 

 

MOTION FOR SUMMARY JUDGMENT AS TO 1ST AMENDED COMPLAINT OF BERNARDO R. CARRERA FILED BY WELLS FARGO BANK, N.A.

 

 

·         DENIED WITHOUT PREJUDICE. It would appear from the proof of service attached to the moving papers that Counsel Timothy McCandless, attorney for Bernardo and Rosario Carrera, indicates that he was served at Suite 208 and not Suite 206 4740 Green River Road, Corona, Ca. his address of record.

 

·         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.

 

_____________________________________________________________________


 

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 JOHN L. GRANDSAERT

Department 11

 

400 County Center, Redwood City

Courtroom 2D

 

Thursday, January 29, 2015

 

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

 you must call (650) 261-5111 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 526751       CHRISTINE MILLS vs. DIGNITY HEALTH, et al.

 

 

CHRISTINE MILLS                          CAROLYN A. GYERMEK

DIGNITY HEALTH                           CYRUS A. TABARI

 

 

MOTION TO CONTINUE TRIAL AND MANDATORY SETTLEMENT CONFERENCE BY CALIFORNIA EMERGENCY PHYSICIANS MEDICAL, GARY MACGREGOR M.D., DANIEL G. LIBKE M.D., JOHN J. MEHARD, M.D. MICHAEL E. EIFFERT, M.D., STEPHEN VAUGHAN, M.D., DAVID PUSATERI, M.D., CHARLES R. REPPE, PA-C, and MICHAEL J. PUTNAM, PA-C

 

 

  • Parties to 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

 

Thursday, January 29, 2015

 

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 355792       RE: SAN GREGORIO CREEK STREAM SYSTEM

 

 

SAN GREGORIO CREEK STREAM SYSTEM

RANDOLPH P. RHODES

 

 

Peter Marchi & Son, Inc's Petition to Modify Final Decree AND Approve Transfer of Water

 

 

·         After multiple continuances with no well approval in sight, the present petition is DENIED without prejudice to refiling at an appropriate time.

 

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POSTED:  3:00 PM

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