July 25, 2017
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.

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In the Superior Court of the State of California

In and for the County of San Mateo

 

Law and Motion Calendar

Judge: Honorable RICHARD H. DuBOIS

Department 16

 

400 County Center, Redwood City

Courtroom 7A

 

Thursday, July 20, 2017

 

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

 

 

 

 

 

 

 

 

 

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17-CIV-00572     EL CAMINO MOTORS, LLC. vs. VALLI CONSTRUCTION, INC.,

                    et al.

 

 

EL CAMINO MOTORS, LLC                  DARREN S. ENENSTEIN

VALLI CONSTRUCTION, INC.               EDWARD R. HUGUENIN

 

 

HEARING ON DEMURRER

TENTATIVE RULING:

 

Demurrer to the first cause of action (breach of contract) is OVERRULED. The complaint sufficiently alleges that Plaintiff is an intended third party beneficiary of the contract between Alpha Tech Project Delivery “ATPD” and Defendant Valli. The contract was, at least in part, for the benefit of the property owner, Plaintiff. (FAC para. 14.)

 

Also, the complaint alleges that the agreement is based not only on the written contract, but also on written and oral communications between Plaintiff and Defendant. (FAC para. 60.)  The mere fact that Plaintiff was not a signatory to the written agreement does not dispose of the issue, since the written agreement is not the sole basis of the claim.

 

Alternatively, Section 2.2 of the contract provides that (1) ATPD entered into the contract as Plaintiff’s agent, and (2) Defendant Valli (“Contractor”) would be liable to Plaintiff under the contract. (FAC para. 15.)  “(A)ll the rights and liabilities which would accrue to the agent from transactions within such limit, if they had been entered into on his own account, accrue to the principal.” (Civ. Code, § 2330.) The principal may sue in his own name on a contract that was entered into by the principal’s agent. (Sumner v. Flowers (1955) 130 Cal. App. 2d 672, 675 (“The contract of the agent is the contract of the principal, and he may sue or be sued thereon . . .  the principal may show that the agent who made the contract in his own name was acting for him. This proof does not contradict the writing; it only explains the transaction”).)  “Unless excluded by the terms of the agreement made by the agent, an undisclosed principal may claim the benefits of the contract and may sue or be sued in his or her own name.” (Am. Builder's Assn. v. Au-Yang (1990) 226 Cal. App. 3d 170, 176.) 

 

Since the complaint alleges that ATPD was acting as Plaintiff’s agent when contracting with Defendant Valli, it therefore alleges that Plaintiff may sue on the contract in Plaintiff’s own name. A trier of fact could reasonably conclude that Plaintiff is a real party in interest in the contract with Defendant Valli.

 

Demurrer to the second cause of action (breach of implied covenant) is OVERRULED. As set forth above, the complaint alleges sufficient facts to support a reasonable finding that a contract existed between Plaintiff and Defendant Valli. Therefore, the second cause of action alleges a factual basis for a claim of breach of implied covenant. The second cause of action is not duplicative, because the face of the pleadings does not show that, as a matter of law, the alleged breaches of implied covenant are also breaches of the agreement that is the basis of the first cause of action. 

 

The pleading is nonspecific. It does not allege which, if any, contract terms Defendant breached, and the demurrer does not identify any. Therefore, the face of the complaint does not indicate what contract provision would be breached by “failure to perform competently or use the proper materials.” 

 

A broad reading of the complaint, which is proper for demurrer, allows an interpretation that Defendant could have breached the implied covenant of good faith without breaching the agreement itself.  

 

Defendant Valli Construction shall file and serve an Answer no later than August 10, 2017.

 

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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17-CIV-01732     CECELIA DOLORES PALOMAR vs. VICTORIA A. KAUFMAN, et al.

 

 

CECELIA DOLORES PALOMAR                STEPHEN M. VERNON

STEVEN J. HERBERT                      ALEXANDRA M. BANIS

 

 

MOTION TO CONSOLIDATE

TENTATIVE RULING:

 

This matter is dropped from calendar as moot.  It appears that the case to be consolidated has been dismissed.

 

 



 

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17-UDL-00486     STEVE HERBERT vs. CECELIA D. PALOMAR, et aL.

 

 

STEVE HERBERT                          MARC D. BENDER

CECELIA D. PALOMAR                     CECELIA C. FUSICH

 

 

3. TO TRAIL MOTION TO CONSOLIDATE 17-CIV-01732

TENTATIVE RULING:

 

This matter is dropped from calendar as moot.  It appears that this case to be consolidated has been dismissed.

 

 

4. HEARING ON DEMURRER

TENTATIVE RULING:

 

This matter is dropped from calendar as the case has been dismissed.

 

 



 

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CIV522693     J.B.B. INVESTMENT, ET AL. VS. R. THOMAS FAIR, ET AL.

 

 

J.B.B INVESTMENT PARTNERS LTD.          ROBERT E. CAREY

R. THOMAS FAIR                         PATRICK BALDWIN

 

 

5. HEARING ON DEMURRER TO CROSS COMPLAINT

TENTATIVE RULING:

 

Given the ruling to grant Cross-Defendants anti-SLAPP Motion to Strike, J.B.B. Investment Partners Ltd.’s and Silvester Rabic’s Cross-Complaint, the Demurrer to the April 12, 2017 Cross-Complaint is DENIED AS MOOT.   

 

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.

 

 

6. MOTION TO STRIKE BY CROSS-DEFENDANTS AGAINST CROSS-COMPLAINANT

TENTATIVE RULING:

 

For the reasons explained below, Plaintiffs/Cross-Defendants J.B.B. Investment Partners, Ltd.’s and Silvester Rabic’s Special Motion to Strike pursuant to Code Civ. Proc. Sect. 425.16 (the “anti-SLAPP” statute), directed to Defendants R. Thomas Fair et. al.’s April 12, 2017 Cross-Complaint, is GRANTED in its entirety.  A defendant specially moving to strike under Sect. 425.16 has the initial burden to show the asserted claims arise from acts in furtherance of the defendant’s Constitutionally-protected rights of petition and/or free speech.  City of Cotati v. Cashman, 29 Cal.4th 69, 79 (2002).  Once this threshold showing has been made, the burden shifts to the plaintiff (here, Defendants/Cross-Complainants Fair, et al.) to demonstrate a probability of prevailing on the claims.  Zamos v. Stroud, 32 Cal.4th 958, 965 (2004).  The Court finds Plaintiffs met their initial burden of demonstrating the Cross-Complaint’s claims arise from protected activity, and thereafter, Defendants/Cross-Complainants failed to demonstrate a probability of prevailing on the merits. 

 

As to the first prong of the anti-SLAPP analysis, on their face, the Cross-Complaint’s asserted claims are based on Constitutionally-protected activity.  Each is based on substantially the same alleged wrongful acts by Plaintiffs, specifically: (1) “demanding redemption of [Plaintiffs’] LLC membership units, when no redemption rights existed” (which, as discussed below, was part of a settlement proposal); (2) “creating a false dispute between the parties” (i.e., filing this case), (3) insisting on litigation rather than arbitrating the dispute, (4) “harassing” Cross-Complainants by the alleged threats in Plaintiffs’ July 4, 2013 settlement offer; and (5) aggressively litigating this case and “driving-up costs.”  The Cross-Complaint’s seventh cause of action for “false imprisonment” further alleges Plaintiffs appeared before the Court for a debtor’s examination (OEX) of Mr. Fair, but failed to inform the Court of all relevant facts regarding the alleged re-scheduling of the OEX, resulting in a bench warrant for Mr. Fair’s arrest.  Thus on their face, the asserted claims are based almost entirely on the alleged wrongful act of filing and prosecuting this lawsuit (and the related appeals), which are activities that fall within the anti-SLAPP statute.  Sect. 425.16(e)(1). 

 

The “Facts Common to All Causes of Action” section of the Cross-Complaint underscores that the asserted claims are based on protected activity.  See Cross-Complaint at page 4 (alleging Plaintiffs breached the LLC Operating Agreement(s) by filing this case rather than arbitrating the dispute); page 5 (alleging the factual allegations in Plaintiffs’ Complaint are false); page 6 (alleging Plaintiffs “harassed” Mr. Fair by sending a July 4, 2013 settlement offer that threatened to expose his alleged unlawful business practices, demanded confidential information pertaining to the LLCs, and threatened litigation); page 7 (alleging Plaintiffs wrongfully refused to agree to stay this case); page 8 (alleging Plaintiffs harassed Mr. Fair by noticing a debtor’s examination (OEX), and by failing to disclose all facts to the Court regarding the parties’ alleged agreement to re-schedule the OEX; alleging Plaintiffs improperly filed a request with the appellate Court to dismiss the appeal); page 10-11 (alleging Plaintiffs filed improper motions for contempt, which were denied); page 11 (alleging Plaintiffs harassed Mr. Fair by filing “frivolous appeals”). 

To the extent some of the alleged conduct underlying the Cross-Complaint’s asserted claims (arguably) does not fall within the anti-SLAPP statute does not change the outcome, because the vast majority of the alleged underlying conduct, and at least part of the conduct underlying each asserted claim, is protected activity.  Salma v. Capon, 161 Cal.App.4th 1275, 1287-88 (2008) (“A mixed cause of action is subject to section 425.16 if at least one of the underlying acts is protected conduct, unless the allegations of protected conduct are merely incidental to the unprotected activity. . . A plaintiff cannot frustrate the purposes of the [anti-SLAPP] statute through a pleading tactic of combining allegations of protected and non-protected activity under the label of one cause of action.”); Fox Searchlight Pictures, Inc. v. Paladino, 89 Cal.App.4th 294, 308 (2001) (same).  As for the breach of contract claim, the Cross-Complaint alleges Plaintiffs breached the LLC Operating Agreements by filing this lawsuit, refusing to arbitrate, and by “demanding” (as part of pre-suit settlement offers) a redemption of their ownership interests.  Because at least a portion (if not all) of each asserted claim involves petitioning-related activity, all the claims fall within the statute. 

The exception set forth in Flatley v. Mauro (2006) 39 Cal.4th 299, where the Court held that criminal extortion is not a protected activity under the SLAPP statute, does not apply here.  As several cases published post-Flatley explained, this exception is narrow, and applies only where a Defendant concedes, or the evidence conclusively establishes, that the claimed protected speech or petitioning activity was criminal as a matter of law.  The conduct at issue cannot be merely “illegal” in the sense that it violates a statute or common law.  Id. at 319-320; Bergstein v. Stroock & Stroock & Lavan LLP, 236 Cal.App.4th 793, 806 (2015).  Here, there is no alleged extortion or criminal conduct, which renders the Flatley exception inapplicable.  The allegation that Mr. Russo violated CPRC 5-100, an ethical rule governing attorneys, is not criminal conduct and does not bring this case within the Flatley exception.  See Malin v. Singer, 217 Cal.App.4th 1283, 1299 (2013) (pre-litigation demand letter that did not expressly threaten to report the opposing party to prosecuting authorities did not fall with the “narrow exception articulated in Flatley,”—which involved extreme, overt threats to report the opponent’s criminal acts to prosecuting authorities, as well as other threats having no connection to the underlying dispute).  While Mr. Russo’s July 4, 2013 email posed the threat of civil litigation, there was no overt threat to report Mr. Fair to prosecutorial authorities or the media.  Because the Cross-Complaint’s allegations do not involve criminal conduct (and in fact, do not even appear to involve any violation of CRPR 5-100), Flatley does not apply.  The cases Defendants cite involving clear cut cases of money laundering and malicious prosecution are inapposite.   

 

For multiple reasons, once the burden shifted to Defendants/Cross-Complainants to demonstrate a probability of prevailing on the merits of their claims (Sect. 425.16(b)(1)), Defendants did not meet their burden.  First, the asserted claims are barred by litigation privilege codified in Civ. Code Sect. 47(b).  Oddly, in arguing a probability of prevailing on the merits, Defendants do not even address the litigation privilege, despite it being Plaintiffs’ primary argument as to why the claims fail on the merits.  Although the Cross-Complaint includes non-tort claims (breach of contract-related claims) to which the litigation privilege typically has a much more limited application, even the contract-based claims are, on their face, based primarily on the act of filing, litigating, and making statements in this lawsuit, which is presumptively privileged activity.  Albertson v. Raboff, 46 Cal.2d 375, 379 (1956); Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 883 (in opposing an anti-SLAPP motion, “a plaintiff cannot establish a probability of prevailing if the litigation privilege precludes the defendant’s liability on the claim.”).  See XC at 12-14 (alleging Plaintiffs breached a contract, breached the implied covenant, violated Bus. & Prof. Code Sect. 17200, and breached a purported fiduciary duty by the act of filing and prosecuting this case, and making statements to the Court). 

The fact that Plaintiffs’ sent their July 4, 2013 settlement offer email (which Defendants contend contained wrongful threats, and included a proposal that Defendants return the money Plaintiffs had invested) one day before the lawsuit does not change the analysis, because pre-lawsuit offers/negotiations are also protected by the litigation privilege.  Lerette v. Dean Witter Organization, Inc. (1976) 60 Cal.App.3d 573, 576-66 (pre-litigation demand letter privileged under Sect. 47(b) “as preliminary to a judicial proceeding”); Digerati Holdings, LLC v. Young Money Entertainment, LLC, supra, 194 Cal.App.4th 873, 887-889 (pre-litigation statements threatening litigation were privileged under 47(b)); Izzi v. Rellas (1980) 104 Cal.App.3d 254, 262 (in applying Sect. 47(b), “courts have consistently applied a liberal standard for establishing a relationship between publications made by parties and judicial proceedings.”).  Plaintiffs’ pre-suit settlement offer(s) proposing a refund their investments in the LLCs was part of on-going settlement discussions, and thus is privileged.  Civ. Code Sect. 47(b); Buckheit Decl., Par. 17-21, Ex. 3-5; Rabic Decl., Par. 12-15; Action Apartment Ass’n, Inc. v. City of Santa Monica, 41 Cal.4th at 1251 (A pre-litigation communication is privileged if it “relates to litigation that is contemplated in good faith and under serious consideration.”). 

Further, even if the litigation privilege did not apply to the contract-based claims, they fail for other reasons.  First, Defendants allege Plaintiffs breached the LLC Operating Agreement(s) by (a) requesting their money back (i.e., requesting a refund their LLC membership units), and (b) filing this case instead arbitrating the dispute.  As a threshold matter, Defendants have not submitted evidence establishing the formation of the contract they allege was breached.  Mr. Fair’s supporting declaration states in a conclusory manner the Operating Agreement was “offered” to Plaintiffs, and that they “accepted” it.  Fair Decl., Par. 5.  Defendants offer no corroborating evidence the agreement at issue was ever sent to or signed by Plaintiffs.  The declarations of Plaintiff Mr. Rabic and Mr. Buckheit (J.B.B.’s General Partner) state they never received the LLC Operating Agreements prior to this lawsuit, and never signed them.  (Buckheit Decl., Par. 7, Rabic Decl., Par. 7).  Further, even assuming an agreement existed, the allegation Plaintiffs breached it by requesting their money back (XC, Par. 65) is dubious at best.  The evidence demonstrates that proposal was a settlement offer that, if not privileged, would likely be inadmissible in Court.  (Evid. Code Sect. 1152; Buckheit Dec., Par. 21.)  Nor do Defendants adequately explain how Plaintiffs’ request for a refund of their money caused any damage.  In his declaration, Mr. Fair claims damages of $600,000 for attorney’s fees incurred in defending/litigating this case.  Plaintiffs’ proposal that Defendants return their initial investments did not cause those alleged damages.  Further, Defendants’ argument regarding arbitration has been litigated and rejected by this Court and the Court of Appeal.  (Jan. 2015 Order denying Defendants’/Cross-Complainant’s motion to stay and to compel arbitration; Court of Appeal’s Jan. 25, 2017 Opinion affirming the denial of the motion to compel arbitration). 

As to the breach of fiduciary duty claim, even if it were not otherwise barred, Defendants offer no support for the allegation Plaintiffs owed them any fiduciary duty.  Defendants offer no evidence Plaintiffs were anything other than passive members in the LLCs with minority interests.  (Buckheit Decl., Par. 3; Rabic Decl., Par. 3).  With no explanation as to how it applies, Defendants cite Corp. Code Sect. 16404, which pertains to partnerships (not LLCs), and Corp. Code Sect. 17153 [repealed], which pertains to LLC managers, not members.  The evidence here indicates Plaintiffs were minority investors, not managers.  Thus, there is no evidence Plaintiffs owed any fiduciary duty, let alone breached such a duty.

As to the false imprisonment and intentional and negligent infliction of emotional distress claims based on the Court’s bench warrant and Mr. Fair’s temporary retention at SFO, in addition to being barred by Civ. Code Sect. 47(b), the claims lack evidentiary support.  Mr. Fair’s declaration states he believed his debtor’s examination (OEX) was rescheduled to a later date.  Fair Decl., Par. 21.  Mr. Mader’s declaration similarly states Plaintiffs initially agreed to reschedule the OEX, but later retracted that agreement shortly before Mr. Fair left for an overseas trip.  (Mader Decl., Par. 5-6.)  These statements lack foundation and are inadmissible.  And even if the Court were to consider them, Defendants offer no evidence corroborating their claim that Plaintiffs agreed to postpone the OEX, nor any evidence Plaintiffs made any false statement(s) to the Court.  Defense counsel’s averment on information and belief that Plaintiffs’ counsel did not disclose material facts to the Court does not help Defendants in meeting their burden of proof.  Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1497-8 (in opposing an anti-SLAPP motion, a party cannot show a probability of prevailing on the merits via declarations made on information and belief). 

Further, to the extent the Cross-Complaint is based on Plaintiffs’ “harassment” of Defendants by allegedly coercing Mr. Fair into a settlement, the argument lacks evidentiary support.  Although he was unrepresented at the time of Plaintiffs’ July 4, 2013 settlement proposal, Mr. Fair was/is an attorney and an experienced businessman, who was also experienced in litigation.  Nothing in Mr. Fair’s July 5, 2013 voicemail to Mr. Russo or in his numerous written July 5, 2013 communications with Plaintiffs’ counsel, or in any communications in the days/weeks thereafter, suggests he was acting under duress.  See June 6, 2017 Russo Decl., Ex. 2 (Mr. Fair’s July 5, 2017 voicemail, recorded after he knew Plaintiffs had filed a Complaint against him, calmly stating he had accepted their proposal, and that the parties had “a deal.”).  Notably, Defendants did not assert this “duress” argument until 2017, four years after the fact. 

For the foregoing reasons, the Court finds Defendants/Cross-Complainants did not meet their burden of demonstrating a probability of prevailing on the merits of the asserted claims.  Code Civ. Proc. Sect. 425.16(b)(1).

Plaintiffs’ June 6, 2017 Request for Judicial Notice of the Court’s Aug. 4, 2014 Order and the Aug. 13, 2014 Stipulation and Order re Debtor Discovery is GRANTED.  Evid. Code Sect. 452(d).

Plaintiffs’ Objections to the Declarations of Mr. Fair and Mr. Mader are ruled upon as follows:

·         Fair Dec. 2:22-23.  SUSTAINED.  Lacks foundation; legal conclusion.

·         Fair Dec. 3:6-9.  OVERRULED. 

·         Fair Dec. 3:10-12.  SUSTAINED.  Lacks foundation. 

·         Fair Dec. 3:13-15.  SUSTAINED.  The Court has read the July 4, 2013 email, and thus does not need Defendant’s characterization of the email. 

·         Fair Dec. 3:18-21.  SUSTAINED.  The Court has read the July 4, 2013 email, and thus does not need Defendant’s characterization of the email.  

·         Fair Dec. 3:22-24.  SUSTAINED.  Lacks foundation.  If Plaintiff is referring to the July 4, 2013 email, and Court has read the email, and thus does not need Defendant’s characterization of it. 

·         Fair Dec. 4:1-2.  OVERRULED. 

·         Fair Dec. 4:2-7.  SUSTAINED.  Lacks foundation; speculation.  Information and belief not admissible on a SLAPP motion.  

·         Fair Dec. 4:10-13.  OVERRULED.

·         Fair Dec. 4:21-23.  OVERRULED as to the allegation Cross-Defendants refused to stay the case and arbitrate; SUSTAINED as to the phrase “as required under the Operating Agreement.”  Legal conclusion. 

·         Fair Dec. 5:26-27.  OVERRULED.

·         Fair Dec. 6:1-3.  SUSTAINED.  Lacks foundation; speculation; statements based on information and belief not admissible on a SLAPP motion.  

·         Fair Dec. 6:4-8.  SUSTAINED.  The Court has reviewed the documents and assessed them accordingly, and thus does not need Defendant’s characterization of the documents. 

·         Mader Dec. 2:14-15.  SUSTAINED.  Lacks foundation.

·         Mader Dec. 2:16-18.  SUSTAINED.  Lacks foundation.

·         Mader Dec. 2:19-22.  SUSTAINED.  Lacks foundation; speculation; statements based on information and belief not admissible on a SLAPP motion. 

·         Mader Dec. Par. 8 (“Once I subsequently explained ...”).  SUSTAINED as to the statement Plaintiffs reneged on an agreement (lacks foundation); OVERRULED as to the remainder.  

 

 

Plaintiffs and Cross-Defendants J.B.B. Investment Partners Ltd.’s and Silvester Rabic’s Motion for Attorney’s Fees and Costs accompanying their motion to strike is GRANTED-IN-PART and DENIED-IN-PART (granted in a lesser amount than is sought).  See Code Civ. Proc. Sect. 425.16(c)(1) (mandating an award of reasonable attorney’s fees and costs to the prevailing party on an anti-SLAPP motion).  Plaintiffs seek $17,904 in fees based on 66.3 hours worked at varying hourly rates, plus $60 in costs (filing fee), for a total of $17,964.  After considering the motion and the evidence supporting the attorney’s fees request, the Court has reduced the amount sought by cutting 20 hours of time spent, at a rate of $315/hr., for a reduction of $6,300, reducing the total amount of fees and costs from $17,964 to $11,664.  Plaintiffs J.B.B. et al. shall recover $11,664 from Defendants for fees and costs.  Defendants/Cross-Complainants Fair et. al.’s request for fees is DENIED. 

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10.  If the tentative ruling is uncontested, moving party is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order is to be submitted directly to Judge Richard H. DuBois, Department 16.

 

 

 

 

 

 

7. MOTION FOR SUMMARY JUDGMENT BY PLAINTIFF

TENTATIVE RULING:

 

Plaintiffs J.B.B. Investment Partners Ltd.’s and Silvester Rabic’s Motion for Summary Judgment, pertaining to their April 20, 2015 First Amended Complaint (FAC), is DENIED, for the reasons stated below.

First, Plaintiffs’ Separate Statement makes no mention of 10 of the 11 asserted causes of action in the FAC.  See CRC 3.1350 (d)(1)(A) (the Separate Statement “must” separately identify each cause of action that is the subject of the motion).  Plaintiffs argue in a footnote to their moving papers: “The granting of this motion would completely dispose of the FAC, as such decision would mean the case was completely settled on July 5, 2013, and all claims released.”  Mot. at 6, fn 5.  That argument does not excuse Plaintiffs of complying with the Separate Statement requirement.  Nor can the Court disregard the un-addressed 10 causes of action and rule solely on the breach of contract claim, because Plaintiffs have moved for summary judgment and not move for summary adjudication.  Homestead Savings v. Sup.Ct. (1986) 179 Cal.App.3d 494, 498 (the Court cannot grant summary adjudication when the notice refers only to summary judgment or, put another way, the court cannot convert a motion for summary judgment into a motion for summary adjudication of a single cause of action. Gonzales v. Sup.Ct. (1987) 189 Cal.App.3d 1542, 1546 (explaining the rationale underlying this rule).   

 

Further, and as separate grounds for denying the motion, even if the parties entered into a valid settlement agreement on July 5, 2013 (an issue the Court does not reach here), the evidence supporting the motion creates a triable issue of fact as to damages owed, which precludes summary judgment (and which would have precluded summary adjudication, had it been sought). See disputed UMF 17 (requesting the Court award damages of $350,000 plus $62,808.22 in interest from July 5, 2013) (Plaintiffs’ Reply brief, inconsistently, requests interest starting July 4, 2013).  The July 4, 2013 settlement offer, however, stated that if Defendants did not take advantage of the “Discount” opportunity provided for in the offer, Defendants would owe $350,000 starting July 1, 2014.  (See May 12, 2017 Corrected Decl. of J. Russo, Ex. 2 at Par. 2, 3, 5).  This discrepancy regarding when the claimed interest started to accrue creates a triable issue as to the amount of damages owed.  Paramount Petroleum Corp. v. Sup.Ct. (2014) 227 Cal.App.4th 226, 243 (damages are an element of a breach of contract cause of action, and thus where the amount is disputed, summary judgment cannot be granted).  Even if Plaintiffs had sought summary adjudication of the Eighth Cause of Action (alleging breach of the July 5, 2013 settlement agreement), the Court could not have summarily adjudicated the liability issue while leaving the damages issue for resolution at trial.  Id. (“As damages are an element of a breach of contract cause of action, a plaintiff cannot obtain judgment on a breach of contract cause of action in an amount of damages to be determined later.”). 

 

Given the foregoing, the Court need not and does not reach the issue of deciding whether, as a matter of law, the parties entered into an enforceable settlement agreement on July 5, 2013. 

Plaintiffs’ unopposed Request for Judicial Notice of Exhs. 1-8, consisting of Statements of Information, Articles of Organization, Affidavits of Publication, and website entries, is GRANTED as to these documents’ existence and dates, but not as to the truth of their contents.  Evid. Code Sect. 452(h). 

Plaintiffs’ Objections to the Decl. of Thomas Fair are addressed as follows:  Page 3:12, SUSTAINED, lacks personal knowledge (Evid. Code Sect. 702(a)); Page 4:9-10, SUSTAINED, lacks personal knowledge (Evid. Code Sect. 702(a)); Page 5:6-9; 5:10-12; and 6:1-2, SUSTAINED, irrelevant.  Guzman v. Visalia Community Bank, supra, 71 Cal.App.4th at 1376-77 (whether an offer or acceptance took place is determined from an objective standpoint, not subjective intent or thoughts). 

Defendants’ Objections to the Decl. of Jack Russo are addressed as follows: Page 3, Par. 14, SUSTAINED (legal conclusion); Page 4, Par. 20 (first sentence), SUSTAINED (legal conclusion); Page 4, Par. 21 (“As Mr. Fair reneged on his acceptance”), SUSTAINED (legal conclusion); Page 5, Par. 25 (“he reneged on the July 5 Agreement”), SUSTAINED (legal conclusion).  The remainder of the objections are OVERRULED. 

Defendants’ Objections to the Decl. of Jonathan Buckheit and the Decl. of Silvester Rabic are OVERRULED.

 

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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CIV535523     JIMMIE BALLARD VS. STATE OF CALIFORNIA

 

JIMMIE BALLARD                              REUBEN J. DONIG

RAMON AND MARGARET SANTOS                   JESSE F. RUIZ

STATE OF CALIFORNIA DEPARTMENT OF TRANSPORT  GOSSAGE, DAVID

DEE DIBENEDETO & ANDRE YANCEY               THOMAS GELINI

 

MOTION FOR SUMMARY ADJUCATION OF ISSUES

TENTATIVE RULING:

 

Defendants DEE DIBENEDETTO and ANDRE YANCEY’s Motion for Summary Adjudication is DENIED as to Issue Nos. 1 and 2, on the ground that Defendants have not met their moving burden of demonstrating that one or more elements of Plaintiffs RAMON SANTOS and MARGARET SANTOS’ wrongful death action cannot be established, or that there is a complete defense to it.  Plaintiffs have met their opposing burden of showing the existence of a triable issue of material fact, thereby precluding a grant of summary adjudication.  Code Civ. Proc. § 437c(p)(2). 

 

Specifically, the material facts in dispute include UMF Nos. 16, 17, 23, 24, 43, 44, 51, 52, and involve whether the seizure suffered by Defendant DIBENEDETTO on the date of the accident was a true Tonic-Clonic seizure, entitling Defendants to assert the common-law defense of a “sudden and unexpected illness”, or whether this was a psychogenic event, i.e. a pseudoseizure, for which the defense is not available.  Bashi v. Wodarz (1996) 45 Cal.App.4th 1314, 1320.

 

Plaintiffs provided expert opinion that Defendant DIBENETTO suffered a true Tonic-Clonic seizure (epileptic seizure) at the time of the accident, a sudden and unexpected medical illness.  However, Defendants provided expert opinion and medical records supporting the diagnosis that Defendant DIBENEDETO actually suffered a psychogenic event (a pseudoseizure) at the time of the accident.

Accordingly, there is a significant triable issue of fact and the motion is denied as to Issue Nos. 1 and 2.

 

The motion is MOOT with respect to Issue No. 3, as Plaintiff CYPRESS INSURANCE COMPANY dismissed its claims as to all Defendants on March 28, 2017.

 

Defendants’ Request for Judicial Notice is granted only insofar as Exhibits A-D were filed with the Court, but not as to the truth of any matters asserted therein.

 

Plaintiffs’ Evidentiary Objections are SUSTAINED as to Objection Nos. 1-11. 

 

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.

 

 



 

9:00

Line: 9

CIV536977     JEFF HELMIG VS. LEXIS LIVENGOOD, ET AL.

 

 

JEFF HELMIG                            DEAN C. ROSSI

LEXIS LIVENGOOD                        MICHAEL B. ALLEN

 

 

MOTION TO BE RELIEVED AS COUNSEL FOR PLAINTIFF

TENTATIVE RULING:

 

Dean Rossi’s motion to be relieved as counsel of record for plaintiff, Jeff Helmig is GRANTED.

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10.  If the tentative ruling is uncontested, ATTORNEY ROSSI is directed to prepare, circulate, and submit a written order on the appropriate judicial council form for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order is to be submitted directly to Judge Richard H. DuBois, Department 16.

 



 

 

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, July 20, 2017

 

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

Line: 1

CIV538342     HAMDI M. ALZGHOUL VS. OMAR ALZGOUL, ET AL.

 

 

HAMDI M. ALZGHOUL                      DAVID G. FINKELSTEIN

OMAR ALZGOUL                           KAISER U. KHAN

 

 

Motion for Order Enjoining Rental Income

TENTATIVE RULING:

 

The Motion to Enjoin Rental Income is DENIED.  There is no showing of irreparable harm as the present dispute has existed for years and trial is imminent.  Monetary damages are an adequate remedy at law.  Since a Lis Pendens has been recorded any person acquiring an interest takes subject to claims in the present action.  Lastly, the showing as to liklihood of success on the merits is not adequate to overcome the failure to demonstrate the absence of irreparable harm should the injunction not be granted. 

 


 

 


POSTED:  3:00 PM

© 2017 Superior Court of San Mateo County