February 6, 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

 

Tuesday, February 2, 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 441471       JOHNNY AMOS VS. DAVID A. HEATON, ET AL.

 

 

JOHNNY AMOS                           BARZIN BARRY SABAHAT

DAVID A. HEATON                       WILLIAM R. MORRIS

 

 

MOTION TO ENFORCE SETTLEMENT AGREEMENT BY DAVID A. HEATON

 

 

Notwithstanding Plaintiff’s alleged waiver of the Bankruptcy stay brought to the attention of this Court at the January 11, 2016, hearing on Defendant’s Motion to Enforce the Settlement Agreement, the instant matter is and will remain stayed until further express order by the Bankruptcy Court in their Case No. 16-50080.

 

 

Accordingly, the matter is continued until March 16, 2016, for further proceedings.

 

_____________________________________________________________________


9:00

2

CIV 531576       ILDA CABALLERO VS. JOEY OSCAR JOLLEY

 

 

ILDA CABALLERO                        ROBERT B. ABEL

JOEY OSCAR JOLLEY                     JEFF B. ATTERBURY

 

 

MOTION TO SHORTEN TIME FOR PHYSICAL EXAMINATION PURSUANT TO CCP

2032.220(d) BY JOEY OSCAR JOLLEY

 

 

The matter having been settled, at moving party’s request, the Motion is off calendar.

 

_____________________________________________________________________


9:00

3

CIV 533692       ERICA PEREZ-ARREOLA VS. SAN MATEO-FOSTER CITY SCHOOL

                   DISTRICT

 

 

ERICA PEREZ-ARREOLA                   JOANNE M. BIERNACKI

SAN MATEO-FOSTER CITY SCHOOL DISTRICT

 

 

DEMURRER TO SECOnd Amended COMPLAINT of PEREZ-ARREOLA BY JEFFERSON ELEMENTARY SCHOOL DISTRICT

 

 

The Demurrer as to the Second Amended Complaint is OVERRULED because the issues raised in this Demurrer are basically the same as those raised in the Demurrer as to the First Amended Complaint, which was overruled. There is no reason to re-visit those issues and Plaintiffs have adequately alleged compliance with the Government Tort Claim procedure.

 

 

Defendant shall file and serve an answer to the Second Amended Complaint within 15 days after service of Notice of Entry of Order.

 

 

Prevailing party 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 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

4

CIV 534833       DORIS HURTADO VS. MARYMOUNT GREENHILLS RETIREMENT

                   CENTER

 

 

DORIS HURTADO                         MATTHEW C. FREEMAN

MARYMOUNT GREENHILLS RETIREMENT CENTER KIMBERLI POPPE-SMART

 

 

MOTION TO STRIKE PORTIONS OF PLAINTIFF'S FIRST AMENDED COMPLAINT BY MARYMOUNT GREENHILLS RETIREMENT CENTER

 

 

 

 

DEMURRER TO FIRst Amended COMPLAINT of HURTADO BY MARYMOUNT GREENHILLS RETIREMENT CENTER

 

 

Defendant’s demurrer to the 1st cause of action for Elder Abuse, 2nd cause of action for Elder Neglect Under the Elder Abuse and Dependent Adult Civil Protection Act and 3rd Cause of Action for Reckless or Willful Abuse of an Elder Under the Elder Abuse and Dependent Adult Civil Protection Act on the ground of uncertainty and failure to state facts sufficient to constitute a cause of action is SUSTAINED WITH LEAVE TO AMEND.  The caption names two plaintiffs without identifying whether they are suing in their individual capacity or as successors in interest. (CCP §422.40) The 1st amended complaint failed to indicate which plaintiffs are bringing which causes of action, rendering it uncertain. It is unclear whether Felix Castillo is also bringing the 3 causes of action for elder abuse. If so, he has failed to file the required declaration (CCP §377.32). While plaintiffs have alleged facts sufficient to set forth the required elements of a cause of action for elder abuse, they have alleged 3 separate causes of action for elder abuse without differentiating between the 3 causes of action or indicating whether the 3 separate causes of action are based upon different duties or seek different remedies. Thus, these 3 causes of action are uncertain.

 

 

Defendant’s general demurrer to the 4th cause of action for fraud is SUSTAINED WITH LEAVE TO AMEND. ¶4 of the 1st amended complaint alleges defendant is a Corporation.  This cause of action has not been alleged with the specificity required against a corporate defendant. Tarmann v. State Farm Mut. Auto. Ins. Co. (19991) 2 Cal App 4th 153, 157.

 

 

The demurrers to the 5th cause of action for wrongful death on the grounds of uncertainty and failure to state facts sufficient to constitute a cause of action are OVERRULED.  Plaintiff’s allegations regarding causation are sufficient.  The superior court has jurisdiction to try a wrongful death action even absent joinder of one or more heirs to the decedent. Ruttenberg v. Ruttenberg (1997) 53 Cal.App. 4th 801, 807-808. If defendant seeks to review the declaration from Nelly Rodriguez, it may propound a discovery request.

 

 

Defendant’s motion to strike portions of the 1st amended complaint is GRANTED, WITH LEAVE TO AMEND, as to items 4 and 14 and DENIED as to the remaining items.

 

 

Attorneys for both parties are directed to familiarize themselves with CCP §430.41.

 

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 to provide notice thereof to the opposing party/counsel as required by law a nd the California Rules of Court. The order is to be submitted directly to Judge Donald J. Ayoob, Department 27.

 

_____________________________________________________________________


9:00

5

CLJ 534158       JEANNETTE WILLIAMS VS. T-MOBILE USA, INC.

 

 

JEANNETTE WILLIAMS                    ADRIAN R. BACON

T-MOBILE USA, INC.                    ADRIENE PLESCIA LYNCH

 

 

DEMURRER TO COMPLAINT of WILLIAMS BY T-MOBILE USA, INC.

 

 

At Defendant’s request, the Demurrer is off calendar.

 

 

_____________________________________________________________________


9:00

6

CLJ 534477       DISCOVER BANK VS. GENEVA MAGTIRA

 

 

DISCOVER BANK                         JANET L. BROWN

GENEVA MAGTIRA                        PRO/PER

 

 

MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION OF ISSUES BY DISCOVER BANK

 

 

Plaintiff Discover Bank’s Request for Judicial Notice is GRANTED pursuant to Evidence Code §§452, 453.

 

 

Plaintiff Discover Bank’s Motion for Summary Judgment is GRANTED.  Plaintiff has met its initial burden pursuant to CCP § 437c(p)(1) through the declaration of James Paul, their designated agent and the exhibits attached to his declaration. The burden then shifts to defendant to establish a triable issue of material fact pursuant to CCP §437c(p)(2). The defendant has not met that burden. The defendant has not submitted a memorandum of points and authorities in opposition and has not filed a separate statement in opposition. The defendant has not disputed through any evidence the following facts: the defendant applied for a discover credit card account [Fact 1]; that plaintiff provided her with an agreement [Fact 2]; that defendant used the credit card account, thereby agreeing to be bound by the terms and conditions in the agreement [Fact 3]; that defendant received monthly billing statements [Fact 4]; that defendant failed to dispute any of the charges [Fact 5]; and that the current balance due on the account is $7,313.19 [Fact 8]. Because the defendant has not disputed any of these facts through a separate statement or any other evidence, they are deemed admitted. Bispo v. Burton (1978) 82 Cal App 3d 824, 832. These facts, as a matter of law, establish the common count causes of action. CCP §337a; Trafton v. Youngblood (1968) 69 Cal 2d 17, 25. Judgment for Plaintiff in the amount of $7,313.19 principal and $819.50 in costs pursuant to a memo of costs for a total judgment of $8,132.69.

 

_____________________________________________________________________


9:00

7

CIV 519753       LOUIS H. BORDERS REVOCABLE TRUST, ET AL. VS.

                   WALKER/WARNER ARCHITECHTS, ET AL.

 

 

LOUIS H BORDERS REVOCABLE TRUST          MARK S. SANDBERG

WALKER/WARNER ARCHITECTS                 ROBERT J. BUCCIERI

 

 

MOTION FOR SUMMARY ADJUDICATION OF ISSUES BY WALKER/WARNER ARCHITECTS, ET AL.

 

 

Defendant and Cross-Complainant Walker/Warner Architects, Inc.’s (WWA) Motion for Summary Adjudication Against Plaintiffs’ First Amended Complaint is DENIED in part and GRANTED in part.

 

 

As for the 7th cause of action for misrepresentation, Defendant WWA has proven only that Plaintiffs were informed of the cost increases on various dates, but not that Plaintiffs knew of the underlying misrepresentation(s), therefore moving party did not shift the burden to Plaintiffs to show a triable issue of one or more material facts exists as to that cause of action. CCP § 437c(p)(2). Summary adjudication on the 7th cause of action for misrepresentation is DENIED.

 

 

On the element of reasonable reliance on alleged misrepresentations by Defendant WWA, moving party shifted the burden to Plaintiffs by quoting the provision of the contract, Section 9.6 of the May 31, 2006 agreement between Plaintiffs and Defendant.

 

 

Plaintiffs produced evidence to show that a trier of fact could find that their reliance was “reasonable” under the circumstances. The issue of reasonable reliance is a question of fact, therefore cannot be decided by way of summary judgment. Beckwith v. Dahl (2012) 205 Cal. App. 4th 1039. Summary adjudication on the element of reasonable reliance on the alleged misrepresentations of Defendant WWA is DENIED.

 

 

On the request to limit Defendant WWA’s liability for damages to Plaintiffs to $1,000,000, as stated by the term of the contract found at Article 12 of the May 31, 2006 agreement between Plaintiffs and Defendant, moving party shifted the burden to Plaintiffs.

 

 

Plaintiffs argue that a party may not limit its liability for intentional torts. “All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.” Civ. Code § 1668.

 

“Section 1668 reflects the policy of this state to look with disfavor upon those who attempt to contract away their legal liability to others for the commission of torts. Under this section, a party may not contract away liability for fraudulent or intentional acts or for negligent violations of statutory law.” Blankenheim v. E.F. Hutton & Co. (1990) 217 Cal. App. 3d 1463, 1471.

 

 

Therefore, the Court GRANTS summary adjudication on this request to limit Defendant WWA’s liability for damages to Plaintiffs to $1,000,000 as provided by the contract IN PART AND DENIES IT IN PART as follows:

 

 

Defendant WWA’s liability is limited to $1,000,000 on the 5th and 6th causes of action in the Plaintiffs’ First Amended Complaint, for breach of contract and professional negligence, respectively. However,

Defendant WWA’s liability is not so limited on the 7th cause of action in the Plaintiffs’ First Amended Complaint, for misrepresentation.

 

 

Defendant WWA’s Request for Judicial Notice of the Plaintiffs’ Complaint and the First Amended Complaint is GRANTED.

 

 

Plaintiffs’ Request for Judicial Notice of the moving party’s Answer to the First Amended Complaint is GRANTED.

 

 

Plaintiffs’ Objections to WWA’s Separate Statement of Undisputed Material Facts and Supporting Evidence is decided as follows: SUSTAINED as to Nos. 35 and 41 and OVERRULED as to Nos. 2-8, 10-18, 20-22, 24-27, 29-31, 33, 36-38, 43-47. While judicial notice of the authenticity of a document or pleading does not establish the truth of the facts stated therein, a pleading is an admission by the party who made it. “Although a party cannot rely on its own pleadings on summary judgment, a party seeking or opposing summary judgment under these circumstances can rely on admissions of material fact made in the opposing party's pleadings.” 24 Hour Fitness, Inc. v. Superior Court (1998) 66 Cal. App 4th 1199, 1211.

 

 

Defendant/moving party’s objections to evidence stated and argued in the Defendant’s Reply to Plaintiffs’ Opposition to Motion for Summary Adjudication are DENIED as not in compliance with the format required by CRC 3.1354(b), which requires objections to evidence to be presented in a separate document.

 

____________________________________________________________________________


 

 

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

 

Tuesday, February 2, 2016

 

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 506891       ANA PIZARRO, ET AL. VS. CASTLE INSURANCE AGENCY

 

 

ANA PIZARRO                           STEPHEN C. BALL

A.A.I.B., INC.                        G. DENNIS RODGERS

 

 

MOTION TO SET TRIAL OF THE ACTION AND GRANT PREFERENCE FILED BY ANA PIZARRO, ET AL.

 

 

·         Appear

 

 

_____________________________________________________________________

 

 

 

 

 


POSTED:  3:00 PM

 

© 2016 Superior Court of San Mateo County