May 29, 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 ELIZABETH K. LEE

Department 17

 

400 County Center, Redwood City

Courtroom 2L

 

Thursday, May 28, 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 519076       ROBERT McNAMARA, ET AL. VS. EMBASSY SUITES MANAGEMENT

                   LLC., ET AL.

 

 

ROBERT MCNAMARA                       RICHARD H. SCHOENBERGER

EMBASSY SUITES MANAGEMENT, LLC.       JOSEPH A. AGUILAR

 

 

MOTION FOR TERMINATING SANCTIONS OR IN THE ALTERNATIVE TO ISSUE SANCTIONS BY PAUL RIEGER COMPANY

 

  • Defendants/cross-defendants Paul Rieger Co.’s Motion for Terminating Sanctions is DENIED. Defendants/cross-defendants Paul Rieger Co.’s alternative request for issue/evidentiary sanctions is DENIED.

 

  • Defendant/Cross-Defendant  Rieger has not met its burden of identifying specific willful conduct on the part of Embassy which would be a prerequisite to granting a motion for terminating sanction or issue/ evidentiary anctions. See Los Defensores, Inc. v. Gomez (2014) 223 Cal. App. 4th 377, 390 and Valbona v. Springer (1996) 43 Cal. App. 4th 1525, 1548.

 

  • The Motion also fails to identify the specific cross-complaint to which this motion is directed. CCP §2023.040. The Motion required a separate statement setting forth the particular discovery requests at issue, the responses and the reasons why sanctions should be imposed. CRC 3.1345(a)(7). Rieger argues that no separate statement is required because no response has been provided to the request for discovery of safety documents. However, the court ordered responses to document requests 58-62 and Embassy did provide a number of documents in response.

 

  • As to monetary sanctions, CCP §128.5(e) provides that §128.5 sanctions do not apply to discovery requests, responses, objections and motions. And even if they did, CCP §128.5(f) incorporates the requirement that the motion has to be made separately and served on the opposing party 21 days prior to filing the motion with the court.

 

  • Both requests for monetary sanctions 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.

 

 

_____________________________________________________________________


9:00

2

CIV 528392       SHAKUNTALA LAL VS. HOME DEPOT U.S.A., INC, ET AL.

 

 

SHAKUNTALA LAL                        STANLEY E. POND

HOME DEPOT  U.S.A., INC.ETAL          GARY T. LAFAYETTE

 

 

MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION OF ISSUES BY HOME DEPOT U.S.A., INC, ET AL.

 

·         This matter is moot.  The entire action was dismissed with prejudice on April 8, 2015.

 

 

_____________________________________________________________________


9:00

3

CIV 531873       JANE DOE I, ET AL. VS. DANIELLE CHETRIT, ET AL.

 

 

JANE DOE I                            JIM ERICKSON

DANIELLE CHETRIT                      STEWART J. LEVIN

 

 

MOTION TO STRIKE COSTS BY JANE DOE I, ET AL.

 

 

MOTION FOR ATTORNEY'S FEES AND COSTS PURSUANT TO CODE OF CIVIL

PROCEDURE § 425.16 BY DANIELLE CHETRIT, ET AL.  

 

·         This matter is continued to June 18, 2015 at 9:00 a.m. before Judge Joseph Scott in Department 25.

 

 

_____________________________________________________________________


9:00

4

CIV 532595       COLLETTE AZZOPARDI VS. MICHAEL J MONAGHAN, ET AL.

 

 

COLLETTE AZZOPARDI                    STEVEN L. POLLAK

MICHAEL J. MONAGHAN                   SARAH A. BROOKS

 

 

DEMURRER TO COLLETTE AZZOPARDI'S COMPLAINT ON REJECTED CREDITOR'S CLAIM FOR DAMAGES FOR BREACH OF PROMISSORY NOTE BY MICHAEL J MONAGHAN

 

 

·         This matter is moot.  A First Amended Complaint was filed on May 1, 2015.

 

 

_____________________________________________________________________


9:00

5

CIV 532779       KELLY ROGERS, ET AL. VS. SABA SOFTWARE, INC., ET AL.

 

 

KELLY ROGERS                          DAVID T. WISSBROECKER

SABA SOFTWARE, INC.

 

 

MOTION TO DISMISS OR STAY THIS ACTION BY SABA SOFTWARE, INC., ET AL.

 

 

 

JOINDER IN THE REPLY MEMORANDUM OF DEFENDANT SABA AND THE INDIVIDUAL DEFENDANTS IN FURTHER SUPPORT OF MOTION TO DISMISS OR STAY THIS ACTION BY VECTOR CAPITAL, VECTOR TALENT II LLC, AND VECTOR TALENT MERGER SUB, INC.

 

 

  • The Motion to Dismiss is DENIED; the Motion to Stay is GRANTED. The allegations in Plaintiffs’ complaint are substantially identical to the allegations and claims in the pending Delaware actions, seeking relief on behalf of the same class of Plaintiffs. The potential for inconsistent or opposite findings between this action and the Delaware actions outweighs the benefits and convenience, if any, of trying this action in California. 

 

  • The allegation that Defendants wrongfully amended the bylaws to impose a forum selection clause does not render this action significantly different from the Delaware action.

 

  • By granting the Motion to Stay on these grounds, the Court does not reach the issue of whether the recently added forum selection provision in the corporate bylaws is enforceable or not.

 

  • Denial of the Motion to Dismiss is without prejudice to a subsequent motion if Plaintiffs file an action in Delaware.

 

 

HEARING MOTION FOR LIMTED EXPEDITED DISCOVERY BY KELLY ROGERS, ET AL.

 

 

  • The Motion for Order Granting Limited Expedited Discovery is DENIED. The sole ground for the Motion is that Plaintiffs need immediate discovery to support an application for preliminary injunction against the then-pending merger. (Moving P&A at 1:5-11 and 2:7-9.)  Since the merger has already occurred, no basis for a preliminary injunction exists. 

 

  • 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

6

CIV 533004       DENNIS MAHONEY VS. SCHOONER BAY I ASSOCIATES, L.P.

                   ET AL.

 

 

DENNIS MAHONEY                           ERIC L. TOSCANO

SCHOONER BAY I ASSOCIATES, L.P           JACK C. NICK

 

 

MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT BY SCHOONER BAY I ASSOCIATES, L.P., ET AL.

 

 

  • Defendants’ Motion to Strike Plaintiffs’ Complaint is DENIED.  Construing the pleadings liberally and giving the plaintiff every favorable inference, as required by CCP § 452, Plaintiff sufficiently pled facts to support a claim for punitive damages under CCP § 3294.

 

  • Motions to strike are generally disfavored as the policy of law is to construe the pleadings liberally with a view towards substantial justice between the parties. CCP § 452. If facts have been pled, even by raising a reasonable inference, that support a claim to punitive damages, then the claim will be allowed and the motion to strike will be denied. Dawes v. Superior Court, 111 Cal. App. 3d 82, 88 (1980).

 

  • Punitive damages are available where Plaintiffs allege specific facts indicating that Defendants acted with “oppression, fraud, or malice”.  Civ. Code § 3294(e). 

 

  • The allegations of the Complaint are considered in context and presumed to be true. Clausen v. Superior Court, 67 Cal. App. 4th 1253, 1255 (1998). The policy with regard to motions to strike is to construe the pleadings liberally and give the plaintiff every favorable inference. CCP § 452.  The standard is “conscious disregard for the safety of others” and not intent to harm. Pfeifer v. John Crane, Inc., 220 Cal. App. 4th 1270, 1299 (2013). 

 

  • Here, Plaintiff’s Complaint satisfactorily pleads facts to allege that the Defendants’ actions were intentional, malicious, oppressive, and fraudulent sufficient to plead punitive damages. Whether punitive damages are warranted is a question left to the jury.

 

  • Plaintiff’s Complaint alleges that managing agents of the corporate defendants knew and failed to act to ameliorate the problem. That is all that is required at the pleading stage. The scope of a corporate employee’s discretion and authority to determine corporate policy and whether that employee is considered a “managing agent” are questions of fact for a jury to decide. White v. Ultramar, Inc., 21 Cal. 4th 563, 566-567 (1999).

 

  • 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

7

CIV 533005      KAREN VAUGH VS. SCHOONER BAY I ASSOCIATES, L.P. ET AL.

 

 

KAREN VAUGHN                          MIKAYLA G KELLOGG

SCHOONER BAY I ASSOSCIATES, L.        JACK C NICK

 

 

MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT BY SCHOONER BAY I ASSOCIATES, L.P., ET AL.

 

 

 

  • The Motion of Defendants Schooner Bay I Associates, LP and Equity Residential Management, LLC's to strike references to punitive damages from the complaint is denied.

 

  • An award of punitive damages requires "clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice". CC §3294(a).  CC §3294(c) defines malice as "conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others”.  It defines oppression as "despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights" and fraud as "an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury."

 

  • In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.  Blegen v. Superior Court (1981)125 Cal.App.3d 959, 962-964.  In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.  Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 91.  In ruling on a motion to strike, courts do not read allegations in isolation.  Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.

 

 

  • Here, plaintiff has alleged sufficient facts showing the defendants acted with oppression, fraud, or malice, and provides notice of the facts on which plaintiff bases her claim for punitive damages. (¶¶15-17, 20, 21, 23, 24, 28, 30, 36, 37, 46, 82, 85 and 87).  Whether punitive damages are warranted is a question left to the jury.

 

  • Defendants are correct that "the Legislature intended the term ‘managing agent’ to include only those corporate employees who exercise substantial independent authority and judgment in their corporate decision making so that their decisions ultimately determine corporate policy." White v. Ultramar, Inc. (1999) 21 Cal. 4th 563, 566-67.  The court went on to state: “The scope of a corporate employee's discretion and authority under our test is therefore a question of fact for decision on a case-by-case basis.” Id.  Questions of fact are determined by the jury, not on a Motion to Strike.
  • Here, plaintiff has asserted that defendants, including managing agents or high level employees of defendants, were made aware of the serious habilitability defects and violations. (¶ ¶ 29, 30).  These allegations are sufficient.  Whether Ms. Valenzuala or Ms. Chacon or the other “managing agents or high-level employees" were in fact managing agents is an issue to be resolved by a jury.

 

  • 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 480653       NATIONAL CREDIT ACCEPTANCE, INC. VS. RANDY G. YCMAT

 

 

NATIONAL CREDIT ACCEPTANCE, INC       JOHN J. PUGH

RANDY G. YCMAT

 

 

MOTION FOR ASSIGNMENT ORDER AND ORDER RESTRAINING JUDGMENT DEBTOR BY SACOR FINANCIAL, INC.

 

 

·         Sacor Financial, Inc.’s Motion for an Assignment Order and Order Restraining Judgment Debtor is DENIED without prejudice.

 

·         CCP §708.510(a) permits the court to order the assignment of a right to payment due or to become due.  Here, judgment creditor has not offered evidence sufficient to establish that defendant has the right to any payment.  The declaration of its account manager, Pliny Jones, merely states the declarant is informed and believes that defendant is entitled to receive income, wages, bonuses commissions, dividends and draws from Infinity of Fairmont for services rendered as an independent contractor.  There are no facts as to the source of this information. 

 

·         Judgment creditor may obtain more specific information regarding the existence of a right to payment by pursuing an Order of Examination.

 

  • 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.

 

 

_____________________________________________________________________

 

 

 

 

 


POSTED:  3:00 PM

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