May 5, 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 susan irene etezadi

Department 18

 

400 County Center, Redwood City

Courtroom 2M

 

Tuesday, May 3, 2016

 

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 519116       JIAHUA KEN LEE, ET AL. VS. CECILIA GOYONECHE, ET AL.

 

 

JIAHUA KEN LEE                        HA T. NGUYEN

CECILIA GOYONECHE                     MARK A. RUIZ

 

 

MOTION TO INTERVENE, TO AMEND JUDGMENT, AND TO EXPUNGE LIS PENDENS BY BRANDON CASPER

 

The motion for leave to intervene is DENIED. Casper desires to intervene in order to (1) expunge the lis pendens and (2) amend the judgment to remove the directive of specific performance. Subdivisions (a) and (b) of Section 387 provide two methods of intervening. Neither supports the present motion.

 

The motion is timely. Casper acquired the property in March 2016 and filed this motion on March 28, 2016.

 

A.   Section 387, subdivision (a) Does not Support Intervention.

 

The first ground for intervention is that the nonparty has “an interest in the matter in litigation.” (Code of Civ. Proc. § 387, subd. (a). The matter in this litigation was the 2012 transaction whereby Defendants agreed to sell their house to Plaintiffs. Casper has and had no interest in that matter. If “matter” is extended beyond trial to include enforcement of judgment, then Casper has an interest, since he holds title to the property that the Amended Judgment required Defendants to transfer to Plaintiffs.

 

Intervention is made “by complaint, setting forth the grounds” for intervention. (Id. § 387, subd. (a).) The Court has discretion to deny intervention when the proposed complaint in intervention is deficient. (Bowles v. Superior Court of City & Cty. of San Francisco (1955)  44 Cal. 2d 574, 589.) Under subdivision (a) of section 387, a nonparty intervenes “either by joining the plaintiff in claiming what is sought by the complaint, or by uniting with the defendant in resisting the claims of the plaintiff, or by demanding anything adversely to both the plaintiff and the defendant.” Casper’s motion does not include a proposed complaint in intervention. Without a proposed complaint, the Court considers only Casper’s arguments.

 

Casper desires to amend the judgment to eliminate specific performance and to expunge the lis pendens. Neither of these goals is “sought by the complaint.”  (See Id. § 387(a).) Casper fails to show that he is “united with the defendant in resisting the claims of the plaintiff,” since there is no showing that Defendants desire to amend the complaint or expunge the lis pendens. Nor is Casper “demanding anything adversely to both the plaintiff and the defendant.” Subdivision (a) of section 387 does not support intervention.

 

Intervention may be proper under subdivision (b) of section 387. 

 

B.   Section 387, subdivision (b) Does not Support Intervention.

 

“If any provision of law confers an unconditional right to intervene or if the person seeking intervention claims an interest relating to the property or transaction which is the subject of the action and that person is so situated that the disposition of the action may as a practical matter impair or impede that person's ability to protect that interest, unless that person’s interest is adequately represented by existing parties, the court shall, upon timely application, permit that person to intervene.” (Code of Civ. Proc. § 387, subd. (b).)

 

Casper does not rely on the “unconditional right” ground.

 

Casper claims an interest relating to the property that is the subject of the action, and “disposition of the action may . . . impair or impede [his] ability to protect” his property interest if enforcement of judgment requires Defendants to transfer the property to Plaintiffs. Intervention shall be granted “unless that person’s interest is adequately represented by existing parties . . . .”  (Id. ¶ 387(b). Defendants sold the property to Casper at a time when the judgment directed transfer of the property after Plaintiffs deposited funds in escrow. Plaintiffs contend that they still intend to comply with and enforce the judgment. Plaintiffs have attempted to deposit the funds into escrow, but they have been prevented from doing so.

 

Since Defendants no longer hold title to the property, they have incentive to resist Plaintiffs’ efforts, if any, to enforce the judgment. If Plaintiffs take action to enforce the judgment and compel transfer of the property, Casper’s incentive to resist enforcement is no greater than that of Defendants. Their interests in resisting enforcement of judgment are the same. Casper’s “interest is adequately represented by existing parties . . . .” Section 387(b) does not justify intervention.

 

Without leave to intervene, Casper has no standing to move to amend the judgment or to expunge the lis pendens. Those motions are moot. 

      

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, 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 and the California Rules of Court. The order is to be submitted directly to Judge Susan Irene Etezadi, Department 18, for the Court’s signature.

 

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9:00

2

CIV 529743       MARQUETTE SHURELDS VS. BANK OF AMERICA, N.A.

 

 

MARQUETTE SHURELDS                   

BANK OF AMERICA, N.A.                 JASON M. RICHARDSON

 

 

MOTION FOR ORDER COMPELLING PLAINTIFF TO APPEAR FOR HIS DEPOSITION AND MONETARY SANCTIONS IN THE AMOUNT OF $3,775.80

 

On April 25, 2016, Plaintiff filed a Request for Dismissal without prejudice of the entire action of all parties and all causes of action. Therefore, the motion is moot.

 

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9:00

3

CIV 535450       MATTHEW MURPHY, ET AL. VS. TANYA MARCELINO

 

 

MATTHEW MURPHY                           AMANDA L. EBEY

TANYA MARCELINO                          ROLAND THE

 

 

MOTION TO STRIKE PORTIONS OF PLAINTIFFS' COMPLAINT BY TANYA MARCELINO

 

Defendant TANYA MARCELINO’s Motion to Strike is GRANTED WITHOUT LEAVE TO AMEND as to the punitive damages allegations in Plaintiffs’ Complaint (Complaint ¶ 17, lines 17-22; Complaint ¶ 25, lines 16-22; Complaint ¶ 30, lines 15-20; and Prayer for Relief, lines 26-27). 

 

A motion to strike is appropriate to strike all or any part of any pleading that is irrelevant or false, or that contains improper matter that is inserted in the pleading, or that is not drawn or filed in conformity with the laws of the State of California, a court rule or an order of the court.  Code Civ. Proc. § 436.  In order to survive a motion to strike an allegation of punitive damages, Plaintiffs must plead specific detailed ultimate facts, not conclusory allegations or generalities, establishing that they are entitled to the relief sought.  Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.  As Plaintiffs have offered no argument as to how their Complaint can be amended to allege specific facts demonstrating malice, oppression, or fraud, the motion is GRANTED WITHOUT TO LEAVE AMEND.

 

DEMURRER TO COMPLAINT of MURPHY BY TANYA MARCELINO

 

Defendant TANYA MARCELINO brings a demurrer to all causes of action set forth in Plaintiffs’ Complaint.  However, Defendant failed to file a declaration, as required by CCP §430.41(a)(3), showing that the parties met and conferred in person or by telephone for the purpose of determining whether an agreement could be reached to resolve the objections to be raised in the demurrer. 

 

The hearing on the demurrer is continued until May 19, 2016 at 9:00 a.m. in the Law and Motion Department so that the parties may meet and confer in person or by telephone.  The demurring party is required to file, no later than 7 days prior to the new hearing date, a Code-compliant declaration stating either (1) the parties have met and conferred in person or by telephone and (a) the parties have resolved the objections raised in the demurrer, which shall be taken off calendar or (b) the parties did not reach an agreement resolving the objections raised in the demurrer; or (2) the party who filed the pleading subject to demurrer failed to respond to the meet and confer request or otherwise failed to meet and confer in good faith.  If the parties fail to file and serve the Declaration demonstrating compliance with the requirements of Section 430.41, the Demurrer will be stricken as procedurally improper.

 

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, 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 and the California Rules of Court. The order is to be submitted directly to Judge Susan Irene Etezadi, Department 18, for the Court’s signature

 

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9:00

4

CIV 536592       LANA MIRENE CROSBY VS. HERTZ CORPORATION

 

 

LANA MIRENE CROSBY                       PRO/PER

HERTZ CORPORATION                        LIZA C. MILANES

 

 

MOTION TO STRIKE PLAINTIFF’S' FIRST AMENDED COMPLAINT IN WHOLE OR IN PART BY HERTZ CORPORATION

 

SEE BELOW

 

 

DEMURRER TO FIRst Amended COMPLAINT of CROSBY BY HERTZ CORPORATION

 

Defendant The Hertz Corporation’s Demurrer to Plaintiffs’ First Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

 

Plaintiffs were granted leave to amend to attempt to state a cause of action for malicious prosecution; however the First Amended Complaint fails to allege facts to show “malice” on Hertz’s part, which is a required element. Additionally, the First Amended Complaint is unable to allege facts to show that the report of the stolen vehicle was intended to have Plaintiff Mrs. Crosby arrested, as the Plaintiffs’ names were unknown at the time the police report was made.

Defendant’s Motion to Strike is moot in light of the ruling above.

 

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, 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 and the California Rules of Court. The order is to be submitted directly to Judge Susan Irene Etezadi, Department 18, for the Court’s signature

 

 

_____________________________________________________________________


9:00

5

CIV 537945       COUNTY OF SAN MATEO SHERIFF GREG MUNKS VS. PHILIP B.

                   POLSTER

 

 

COUNTY OF SAN MATEO SHERIFF GREG MUNKS JOHN C. BEIERS

PHILIP BIRKNER POLSTER

 

 

MOTION TO SEAL RECORDS BY COUNTY OF SAN MATEO SHERIFF GREG MUNKS

 

The unopposed Motion to Seal Records brought by Petitioner County of San Mateo Sheriff Greg Munks is GRANTED. The Petitioner has demonstrated facts that establish that there is not only an overriding interest which supports sealing the record and overcomes the weighty right of public access to the records, but also that there is a substantial probability that the overriding interest will be prejudiced if the record is not sealed, that the proposed sealing is narrowly tailored and that there are no less restrictive means to achieve the overriding interest. CRC, Rule 2.550(d).

 

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, 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 and the California Rules of Court. The order is to be submitted directly to Judge Susan Irene Etezadi, Department 18, for the Court’s signature.

 

_____________________________________________________________________


 

 

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, May 3, 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 537585       THE 1001 LAUREL RESIDENTIAL ASSOCIATION VS. 1000 EL

                   CAMINO REAL ASSOCITATES

 

 

THE 1001 LAUEL RESIDENTIAL ASSOCIATION JOHN P. GILL

1000 EL CAMINO REAL ASSOCIATES

 

 

COMPLEX CASE STATUS CONFERENCE

 

 

·         In light of the fact that responsive pleadings have not yet been served, case is reset for complex case status conference on July 6, 2016 at 9:00 a.m. in Dept. PJLM.

 

 

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9:00

2

CIV 537633       LOYD KEARNS VS. LENDINGCLUB CORPORATION, ET AL.

 

 

LOYD KEARNS                           LIONEL Z. GLANCY

LENDINGCLUB CORPORATION, ET AL.

 

 

COMPLEX CASE STATUS CONFERENCE

 

 

·         In light of the fact that responsive pleadings have not yet been served, case is reset for complex case status conference on July 6, 2016 at 9:00 a.m. in Dept. PJLM.

 

 

_____________________________________________________________________

 

 

 

 

 


POSTED:  3:00 PM

 

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