July 27, 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 GERALD J. BUCHWALD

Department 10

 

400 County Center, Redwood City

Courtroom 8D

 

Tuesday, July 26, 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.

 

N.B. Notifying CourtCall with your intent to appear is not an alternative to notifying the court.  

 

    Case                  Title / Nature of Case

 

 

9:00

 

LINE 1

CIV 534696

RYKER EDISCOVERY LLC VS. FREITAS ANGELL & WEINBERG LLP

 

 

RYKER EDISCOVERY LLC

JAMES KIM

FREITAS ANGELL & WEINBERG LLP

Jason S. Angell

 

 

Motion to Strike

TENTATIVE RULING:

 

·    DENIED. Defendant Freitas, Angell & Weinberg, LLP’s Motion to Strike the Amended Complaint is Denied. Said Defendant to file and serve its Answer within 20 days of this Order.

 

·    In this case, Plaintiff Ryker eDiscovery, LLC sues for breach of contract to collect approximately $60,000 in unpaid fees for database hosting services allegedly rendered to the Defendant law firm Freitas, Angell.

 

·    Defendant moves to strike out the Amended Complaint on grounds that Plaintiff could not lawfully file its original Complaint in pro per because it is a corporation that had to be represented by Counsel at the time, and therefore the Amended Complaint now on file by outside litigation Counsel does not relate back to the initial arguably defective Complaint. Defendant relies on Davaloo v. State Farm Ins. Co. (2005) 135 Cal. App.4th 409,415, in support of this proposition.

 

·    However, Defendant has not established that the filing of the Amended Complaint failed to conform to the law.  Although the original complaint was not filed by an attorney, Plaintiff has since retained counsel who filed an amended complaint.  Defendant cites no authority indicating that the filing of the amended pleadings was improper.  Davaloo, on which it relies, involved application of the relation-back doctrine where the initial complaint was so devoid of factual allegations that it failed to meet the minimal pleading requirement of CCP §425.10 and was the functional equivalent of no complaint at all. Id, at 417.  The appeals court did not address a situation substantially similar to the circumstances here.

 

·    In contrast, CLD Construction,Inc. v. City of San Ramon (2004) 120 Cal. App.4th 1141, 1150 – 1152, held that the rule requiring representation does not deprive a corporation of its capacity to be a party to a lawsuit and that a corporation should not be foreclosed from proceeding with its legal right to sue because of a defective complaint that can easily be cured without prejudice to either the trial court or the opposing party.  Here, defendant does not contend that the original complaint was barred by the statute of limitations, nor does it articulate any undue prejudice resulting from the fact that plaintiff was unrepresented at the time the action was commenced.  In fact, counsel was retained and filed the amended pleadings before defendant made its first appearance by filing the instant motion.

 

·         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 2

CLJ 212668

JESUS CANCHARI VS. JANET TAPIA

 

 

JESUS CANCHARI

PRO/PER

JANET TAPIA

PRO/PER

 

 

MOTION RE: CHANGE OF VENUE BY JANET TAPIA

TENTATIVE RULING:

 

·         DENIED WITHOUT PREJUDICE. Defendant Janet Tapia’s unopposed Motion for Change of Venue is Denied Without Prejudice. Defendant has failed to provide a proof of service demonstrating that this Motion was served on the Plaintiff in compliance with Calif. Code of Civil Proc. §1005. If and when a valid return on service is filed with the Court, the Motion may be restored to the Law & Motion calendar.

·         This is an unlawful detainer action in which the Plaintiff Jesus Canchari seeks to evict his subtenant Ms. Tapia from an apartment in Daly City. The apartment building is located in San Mateo County.

·         The subtenant Ms. Tapia brings the Motion on the following grounds: Defendant contends that Plaintiff has filed this action in the wrong court. She asserts that the courthouse on McAllister Street in San Francisco is the proper venue for this case. She asserts that it is only seven minutes traveling time from the property which is located in Daly City. In contrast she asserts that the courthouse in Redwood City is two hours away by express bus. She asserts that by law this matter must be heard in the courthouse that is nearest to the property and the courthouse in San Francisco is closer. She cites to CCP §§396a, 397.

 

·         Even if Movant comes forward with a proper proof of service of her motion papers, the present Motion is of dubious merit. Defendant is simply wrong. The subject real property is located in Daly City which is located in San Mateo County. Pursuant to CCP §392, the proper venue is the Superior Court in the County where the real property is situated. Here, the real property is situated in San Mateo County so venue is proper in San Mateo County.

·         However, at the present time the Court is without jurisdiction to act on the Motion. There is no proof of service showing that this motion to change venue was ever served on the plaintiff in compliance with CCP §1005.

·         If the Tentative Ruling is uncontested, and pursuant to the applicable Rules of Court, it shall become the Order of the Court, effective immediately, no other written Order being needed, the Tentative Ruling having given adequate Notice to the Parties.

 

 

    

 

 

 

 

 

 

9:00

 

LINE 3

CIV 527347

KEALAONAPUA O'SULLIVAN LUM VS MIDPEN HOUSING

   CORPORATION, ET AL.

 

 

KEALAONAPUA O'SULLIVAN LUM

LAWRENCE D. MURRAY

MIDPEN HOUSING CORPORATION

DAVID M. MCLAUGHLIN

 

 

MOTION FOR SUMMARY ADJUDICATION OF ISSUES BY MIDPEN HOUSING CORPORATION, ET AL.

TENTATIVE RULING:

 

  • CONTINUED TO OCTOBER 13, 2016 AT 9:00 AM.  Upon a joint request of the Parties through Stipulation recently filed with the Court, the Hearing on this Motion is set over to October 13, 2016 at 9:00 a.m. in the Law & Motion Dept.

 

 

 

 

 

 

9:00

 

LINE 4

CIV 535140

MARIETTA CANDA, ET AL. VS. OLGA HEDDEN, ET AL.

 

 

MARIETTA CANDA

DANIEL SLIJEPCEVICH

OLGA HEDDEN

JAMIESON K. FONG

 

 

MOTION RE: FOR GOOD FAITH DETERMINATION OF SETTLEMENT AND MOTION TO DISMISS CROSS-COMPLAINT BY COSTCO WHOLESALE CORP

TENTATIVE RULING:

 

·         HEARING REQUIRED. COUNSEL TO PERSONALLY APPEAR. NO TELEPHONIC APPEARANCES. NO “COVERING” COUNSEL. COUNSEL TO BE PREPARED TO ADDRESS THE ISSUES RAISED BELOW.

 

·         This is a personal injury action arising from an accident at the COSTCO store in Foster City on July 15, 2015. Plaintiffs Marietta and Moises (her husband) Canda were shopping there when Defendant Olga Hedden, who was driving a store scooter provided by COSTCO, crashed into a shopping cart that then, allegedly, in turn hit Marietta Canda and knocked her down on the floor. She suffered a broken hip that required surgery. Mr. Canda claims emotional distress from witnessing the accident.

 

·         By this Motion, COSTCO seeks to be dismissed from the case under Calif. Code of Civil Proc., §877.6 by virtue of a separate settlement for a $2687.71 cost waiver that COSTCO asserts is in good faith. COSTCO’s liability, as claimed by Plaintiffs in their Complaint, is alleged negligence in the maintenance and repair of the scooter on the basis of purported inoperable brakes.

 

·         The Court has these questions:

 

 

·         Are there any other special damages claimed, such as wage loss for lost time at work or other expenses?

 

·         Assuming a joint and several liability by both defendants, what is the reasonable claims evaluation as to overall dollar value of the case? It appears that the medical specials unreimbursed by health insurance are in the range of $76,000. Wouldn’t that dictate an overall possible adverse verdict range in the area of up to $150,000 or more?

 

·         If COSTCO’s comparative fault as to the alleged negligent maintenance & repair of the scooter were proved, what is the percentage comparative fault as between the two defendants for claim evaluation purposes?

 

·         What exactly is the Deposition testimony of Defendant Hedden that supports the conclusion that COSTCO has no liability exposure here? Negligent maintenance and repair is arguably beyond Plaintiffs’ knowledge; the dangerous placement of fruit racks, or not, is arguably beyond Plaintiffs’ direct knowledge? 

 

·         Isn’t Plaintiff entitled to the depositions of COSTCO employees?  Why were these depositions not taken earlier? Isn’t this proposed Settlement premature?

 

·         If COSTCO’s position is that their Motion should be considered now, without further discovery, are they willing to disclose and produce to Plaintiffs’ Counsel and the Court copies of any witness statements taken from COSCO employees on the maintenance/repair and fruit rack issues?

 

 

 

 

 

 

 

9:00

 

LINE 5

CLJ 536163

WOOD ROBBINS LLP, ET AL. VS. RICHARD T. CHANG, ET AL.

 

 

WOOD ROBBINS LLP

KELLEY A. HARVILLA

PAULINE F. CHANG

 

 

 

HEARING ON PETITION FOR ORDER TO CONFIRM ARBITRATION AWARD AND FOR JUDGMENT IN CONFORMANCE THEREWITH FILED BY WOOD ROBBINS LLP, ET AL.

TENTATIVE RULING:

 

·         GRANTED. Wood Robbins LLP’s unopposed Petition to Confirm Arbitration Award is Granted.  Judgment on the Award to be entered accordingly.

 

·         This Petition is brought, pursuant to Calif. Code of Civil Proc. §1285, following an Attorneys Fee Arbitration between the Petitioner and its former client Richard Chang to collect fees for legal service rendered.

 

·         Arbitrator Stanley Pond issued an Award in favor of Wood Robbins for $10,851.03 and 10% interest thereon from and after the 30th day from service of the Award. After several defective attempts, the Petition has now been properly served on the client Mr. Chang, and a copy of the legal service agreement containing the Arbitration Agreement and a copy of the Award stands submitted.

 

·         As per Calif. Code of Civil Proc. §1286, the Court’s confirmation of the Award is mandatory unless the Court finds statutory grounds for refusing to confirm the Award under Calif. Code of Civil Proc. §1286.2. In the Court’s opinion, and I so find, there is no fraud, corruption, use of undue means, undue prejudice, or other statutory basis to refuse confirmation here.

 

·         If the Tentative Ruling is uncontested, and pursuant to the applicable Rules of Court, it shall become the Order of the Court, effective immediately, no other written Order being needed, the Tentative Ruling having given adequate Notice to the Parties. 

 

·         Petitioner’s Counsel to prepare and submit a form of Judgment Confirming Arbitration Award, to be submitted directly to Dept. 10 for signature by Judge Gerald J. Buchwald.    

    

 

 

 

 

 

 

9:00

 

LINE 6

CIV 537802

STEVE GILL VS. ULTRA CLEAN TECHNOLGY, ET AL

 

 

GILL, STEVE

MORA, BETH W

ULTRA CLEAN TECHNOLOGY SYSTEM AND SERVICE

 

 

 

MOTION RE: TO COMPEL ARBITRATION OF PLTFF GILL'S CLAIMS AND STAY THE ACTION PENDING, ETC. BY ULTRA CLEAN TECHNOLOGY SYSTEM AND SERVICE, ULTRA CLEAN HOLDINGS

TENTATIVE RULING:

·         DENIED. Defendant Ultra Clean Technology’s Motion to Compel Arbitration and Stay Action is Denied.

 

·         This is an action for Wrongful Termination brought by Plaintiff Steve Gill against his former employer Ultra Clean Technology. The basic gist of the action here is misconduct by Mr. Gill’s immediate supervisor a Senior Vice-President named Mark Bingham, allegedly the driving force in the company’s decision to terminate Mr. Gill’s employment. 

 

·         For the purposes of considering this Motion, the Court will judicially notice and accept all of the Complaint’s fact allegations in paragraphs 10 to 21, inclusive, for the fact that they are statements made in support of the claims made by the Complaint. In that regard, the Complaint sets forth certain extreme and outrageous conduct that is singularly unusual in a wrongful termination of employment case. Namely, claims made for false imprisonment, assault, and battery, and defamation.

 

·         The dispositive question before the Court appears to be whether or not these intentional tort claims give the Plaintiff the right to be free of arbitration clauses in his employment agreements, tort claims that typically are not the subject of such employment-related arbitrations.

·         Plaintiff alleges that his direct supervisor, Senior Vice President Mark Bingham, had anger management issues which at times flared-up in the workplace, causing Plaintiff concern.  On March 30, 2015 during a production meeting, there was a discussion concerning the displacement of certain employees from UCT’s Hayward location.  Mr. Bingham wanted to immediately hire these individuals at UCT’s principal office in South San Francisco, whereas Plaintiff suggested that they conduct interviews to ensure these individuals were qualified.

 

·         As alleged, Mr. Bingham became enraged and started shouting that they needed to hire these displaced employees now.  Mr. Bingham slammed the office door shut, and when Plaintiff attempted to leave the room, Mr. Bingham allegedly grabbed Plaintiff by both biceps and violently pushed him against the wall. 

 

·         Plaintiff says that he thereafter collected his personal items and left the workplace, fearful of another altercation with Mr. Bingham.  Once offsite, Plaintiff called UCT’s Human Resources to officially report the incident and present a complaint concerning the assault, battery, and false imprisonment.  Plaintiff stated that for his safety and the safety of others, he had left work for the day and would be returning the next day, March 31, 2015. 

 

·         However, when Plaintiff came in for work as normal the next day, he discovered that his e-mail and phone had been disabled.  At noon, Plaintiff met with Human Resources and Mr. Bingham, and was advised that his employment had been terminated because it was “not a good fit”.  Plaintiff  brings causes of action for (1) assault; (2) battery;    (3) false imprisonment; (4) violation of Labor Code §1102.5; (5) wrongful termination; (6) defamation;       (7) negligent supervision; and (8) negligent retention against UCT. 

 

·         Under Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, “procedural and substantive unconscionability must both be present in order for a court to exercise its discretion to refuse to enforce a contract or clause under the doctrine of unconscionability.”  Id. at 114.  Here, the parties’ Arbitration Agreement is at the least substantively unconscionable, and procedurally unconscionable as well, due to its one-sidedness and lack of mutually.

 

·         Simple reference to the procedures of arbitration, without more details regarding what those procedures are and/or the failure to provide the applicable rules, supports a finding of procedural unconscionability based on surprise.  Macias v. Excel Building Services LLC (N.D. Cal. 2011) 767 F.Supp2d 1002, 1011-12; Harper v. Ultimo (2003) 113 Cal.App.4th 1402, 1406 (procedural unconscionability is supported by the fact that an employee is “forced to go to another source to find out the full import of what he or she is about to sign – and must go to that effort prior to signing.”). 

 

·         Here, the Arbitration Agreement states that “Arbitration shall be conducted pursuant to the rules of Judicial Arbitration and Mediation Services (JAMS).”  (Decl. Mora ¶ 6, Exhibit C, page 2.)  There are arguably six (6) sets of JAMS arbitration rules which could have been relevant, including but not limited to the Comprehensive Rules; Streamline Rules; and Employment Rules.  (Decl. Mora ¶ 16, Exhibit G.)  UCT did not provide Plaintiff with a copy of any specific JAMS rules at any time, reference to which rules applied, or even guidance on where to obtain the rules.  If, for example, the Streamline JAMS Rules applied, Plaintiff would not have adequate discovery rights. 

 

·         Moreover, the Arbitration Agreement is procedurally unconscionable because it was presented to Plaintiff on a “take it or leave it” basis, which Plaintiff had to sign in order to get the job.  An arbitration agreement is considered a contract of adhesion when it is “a standardized contract, which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it.”  Armendariz, supra at 113. 

 

·         Here, the arbitration language did not clearly explain what rights Plaintiff was waiving, and did not recite the terms of arbitration clearly.  “In order to be enforceable, a contractual waiver of the right to a jury trial ‘must be clearly apparent in the contract and its language must be unambiguous and unequivocal, leaving no room for doubt as to the intention of the parties.’”  Badie v. Bank of America (1998) 67 Cal.App.4th 779, 804.  There is no such agreement here, as the language never once specifically states that the employee is waiving the right to a jury trial.  These facts also support a finding of procedural unconscionability.

 

 

·         Here, there is also a strong element of substantive unconscionability which militates against enforcing the parties’ Arbitration Agreement.  In order to obtain employment at UCT, Plaintiff was required to sign a number of documents, including an Employment Application, the Offer Letter, and a Confidentiality and Non-Disclosure Agreement (which latter agreement is specifically referenced and incorporated into the Offer Letter). 

 

·         The Offer Letter’s arbitration provision, on its face, appears to be mutual in that it states, “Arbitration shall be the exclusive means through which you or the Company may seek relief in connection with a dispute.”  However, specific types of disputes are mentioned in this arbitration provision, including employment claims, termination of employment, compensation and benefits, and the violation of any applicable laws, which are all employee claims.  The arbitration provision specifically makes an exception, permitting “either party” to seek interim equitable relief from a court in connection with a dispute concerning unfair competition or the misappropriation of trade secrets.  While the “either party” language is arguably mutual, claims concerning unfair competition or the misappropriation of trade secrets are much more likely to be brought by the employer.

 

·         UCT also required Plaintiff to sign the Confidentiality and Non-Disclosure Agreement, which places strict obligations on Plaintiff with respect to trade secrets, fraud, non-competition, return of company property, confidentiality, and non-solicitation.  This Confidentiality and Non-Disclosure Agreement then provides:

 

“15.  Remedies.  The Company and the Employee agree that it would be difficult to measure the damage suffered by UCT and/or AIT as a result of any breach by the Employee of this Agreement and that monetary damages would therefore be an inadequate remedy for such a breach.  Accordingly, the Employee agrees that the UCT and/or AIT shall be entitled to injunctive or declaratory relief in addition to any other remedies to which it may be entitled in the event of a breach of this Agreement by the Employee.

 

16.  Attorney Fees and Costs.  If either party initiates litigation in order to enforce the terms of this Agreement, the prevailing party in such litigation shall be entitled to recover reasonable attorney fees and costs, in addition to any other relief awarded, from the non-prevailing party.

 

(Decl. Mora, Exhibit E, emphasis added.)”

 

·         UCT unconvincingly argues that these terms inserted into the Confidentiality and Non-Disclosure Agreement are mutual, and that in any case, they do not specifically state that enforcement of the Agreement may be made in Superior Court as opposed to arbitration.  Simply reading the above-quoted language, it is abundantly clear that UCT intended to reserve to itself the right to go to Court to enforce all employer-related claims, and to recover attorney’s fees, while at the same time precluding employees from doing so on their employee-related claims. 

 

·         Lack of mutuality is fatal to an employment arbitration agreement in California.  Armendariz, supra at 117-118 (“It is unfairly one-sided for an employer with superior bargaining power to impose arbitration on the employee as plaintiff but not to accept such limitations when it seeks to prosecute a claim against the employee.”).  Such one-sidedness is present where an employer carves out exclusive court access for itself while depriving its employees of similar access.  Martinez v. Master Protection Corp. (2004) 118 Cal.App.4th 702, 725 (arbitration agreement unfairly one-sided because it compels arbitration of claims more likely to be brought by employee, the weaker party, but exempts from arbitration claims more likely to be brought by employer, the stronger party). 

 

·         The Court finds that the written arbitration agreement between the parties is both procedurally and substantively unconscionable under the factors set forth in Armendariz v Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83.  Specifically, the lack of mutuality in the parties’ ability to seek redress in Court for employer versus employee claims is fatal to the arbitration agreement at issue. Armendariz, supra at 117-118 (“It is unfairly one-sided for an employer with superior bargaining power to impose arbitration on the employee as plaintiff but not to accept such limitations when it seeks to prosecute a claim against the employee.”).

       

·         The Court also notes that aside from the statutory standards, as interpreted by appeals court cases over the years, this is an unusual case where those statutory limitations should not apply on grounds of fundamental unfairness. The Court is of the opinion that trial judges still retain sufficient equitable power to decline to send a case such as this into arbitration. See, e.g., RN Solution, Inc. v. Catholic Healthcare West (1st Dist. 2008) 165 Cal. App.4th 1511, at 1524, holding that battery-related causes of action were not subject to employee’s arbitration agreement.

 

·         That fundamental unfairness is so flagrant here that the Court should and must decline to enforce the arbitration clauses in this particular case on equitable grounds: When, according to the allegations made here, Mr. Bingham committed the torts of false imprisonment, assault, battery, and defamation, his misconduct in doing so was such that the Defendant company stepped outside the bounds and scope of its usual role of employer at the management level. These intentional tort claims no more belong in arbitration than the trade secret, fraud, non-competition, return of company property, confidentiality, and non-solicitation claims – all claims based on post-employment conduct falling outside the scope of the employment itself -- that the company reserved for court actions.   

 

·         For the reasons stated, this Motion to Compel Arbitration is Denied.

 

·         If the tentative ruling is uncontested, it shall become the Order of the Court, the tentative ruling having provided sufficient Notice to the Parties under the applicable Rules of Court. However, Counsel for the prevailing party shall prepare a written form of Order consistent with this ruling. Form of Order proposed to be submitted directly to Dept. 10 for signature by Judge Gerald J. Buchwald

 

 

 

 

 

 

 

9:00

 

LINE 7

CIV 212566

MARSHALL-EDWARD MIKELS VS SHI HUI PING, ET AL.

 

 

MARSHALL-EDWARD MIKELS

PRO/PER

SHI HUI PING

BRAD D. JONES

 

 

Motion to Set Aside Default/Judgment

TENTATIVE RULING:

 

  • GRANTED. Defendant Shi Hui Ping’s Motion to Quash Service of Summons and to Set Aside and Vacate Default and Default Judgment is GRANTED, under CCP sections 418.10 and 473.5.

 

  • This is an unlawful detainer action brought by the former owner of a home in San Mateo Marshall-Edward Mikels to recover possession from the current owner Shi Hui Ping who purchased the home in a non-judicial foreclosure after Plaintiff defaulted on his mortgage with US Bank. Ms. Ping does not live at the home, but rents it out to tenants.

 

  • Contending that he is the true owner, and having filed a wrongful foreclosure action (SM County No. CIV 536936), Plaintiff claims he effected personal service on Defendant. When Defendant did not respond to the Complaint, Plaintiff took her default, obtained a default judgment, and had a writ of possession issued. However, Ms. Ping obtained an ex parte stay of execution on the Writ through July 31 so that this Motion could be heard and decided.

 

  • Defendant has presented credible evidence in her declaration that she was not personally served, as alleged in the proof of service on file with the Court. Defendant has been diligent in timely seeking this relief from the Court and the lack of actual notice in time to defend the action was not caused by her avoidance of service or inexcusable neglect.

 

·         If the Tentative Ruling is uncontested, and pursuant to the applicable Rules of Court, it shall become the Order of the Court, effective immediately, no other written Order being needed, the Tentative Ruling having given adequate Notice to the Parties.

 

 

 

 

 

 

 

9:00

 

LINE 8

CIV 530805

LEAH GONZALEZ LEAVY VS SUTTER HEALTH, ETAL

 

 

LEAH GONZALEZ LEAVY

PHYLLIS E. ANDELIN

SUTTER HEALTH

RAMON A. MIYAR

 

 

MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION OF ISSUES BY SUTTER HEALTH AGAINST LEAH GONZALEZ LEAVY.

TENTATIVE RULING:

 

  • CONTINUED TO AUGUST 1, 2016 AT 9:00 AM. At a recent Ex Parte Calendar, and after a Conference with both Counsel, the Court (Hon. Gerald J. Buchwald) Ordered this Hearing to be set over to August 1, 2016 at 9:00 a.m. in the Law & Motion Dept.

 

9:01

 

 

LINE 9

CIV 535500

AHNA BALI VS. HISHAM MOHAMED ADEL, ET AL.

 

 

AHNA BALI

CHRISTOPHER B. DOLAN

HISHAM MOHAMED ADEL

BRIAN H. GUNN

 

MOTION FOR LEAVE TO FILE AMENDED COMPLAINT/ANSWER

TENTATIVE RULING:

 

·         MOTION TO AMEND GRANTED.  Plaintiff Anha Bali’s Motion To Amend, to add cause of action as to failure to warn/instruct is Granted. Amended Pleadings, if any, to be filed and served within seven (7) days of this Order.

 

·         This is a personal injury action arising from a rear-end collision of cars going through a car wash in 2012. Plaintiff was a passenger in the rear-ended car, and allegedly suffered a serious back injury requiring spinal surgery.

 

·         With a summary judgment Motion made by Defendant Jack’s Car Wash pending, Plaintiff seeks to amend her pleadings, a request properly made either prior to or at the Hearing on the summary judgment Motion. See Laabs v. City of Victorville (2008) 163 Cal. App.4th 1242, 1258.

 

·         The present Motion To Amend is based on a recently received expert opinion from a human factors expert that establishes a failure to warn. This issue is being raised in the context of other evidence that the driver of the limousine left the limo in gear, not neutral, and rear-ended the car in which Plaintiff was riding. In support of its Motion, Plaintiff’s Counsel argues that the expert’s opinion is directly relevant in establishing a contributing cause of the accident on which a jury could find Jack’s Car Wash’s comparative fault.

 

·         The Court is of the opinion, and I so find, that the proposed amended pleadings should be allowed. See Atkinson v. Elk Corp. (2003) 109 Cal. App.4th 739, at 761.

 

 

 

·         There is a proper basis for amendment of the pleadings in the expert declaration that has been submitted. And, the Court sees no undue prejudice to Defendants here if the amended pleadings are allowed. Trial has been set over to October 31, 2016, leaving adequate time to get the pleadings closed and to have additional discovery on the failure-to-warn issue.

 

·         Objections Nos. 30, 35-36, 38-46,48,51,55-56,61, 47, 59, as to the expert’s declaration are Overruled. The Court need not rule on other Objections as those are not material to a ruling on the Motion To Amend. CCP Section 437c(q).

 

 

·         If the Tentative Ruling is uncontested, and pursuant to the applicable Rules of Court, it shall become the Order of the Court, effective immediately, no other written Order being needed, the Tentative Ruling having given adequate Notice to the Parties.

 

MOTION FOR SUMMARY JUDGMENT

 

OFF-CALENDAR. As the Court has Granted Plaintiff’s Motion For Leave To File Amended Complaint, and no operative Pleading is currently on file, Defendant Jack’s Car Wash’s Motion For Summary Judgment/Summary Adjudication is Ordered Off-Calendar without prejudice to being renewed after the Pleadings are again closed. 

 

 

 

 

9:01

 

LINE 10

CLJ 212481

ESSEX MGMT CORPORATION VS. SUZANNE M. RELANDER, ET AL.

 

 

ESSEX MANAGEMENT CORPORATION

ASHLEY E. KLEIN

SUZANNE M. RELANDER

PRO/PER

 

 

Motion for Summary Judgment

TENTATIVE RULING:

 

  • This Matter came on for hearing again yesterday. This time counsel did not appear, and so the matter is set over to Tuesday, July 26th at 9 A.M. in the Law and Motion Department. Plaintiff’s Counsel Ms. Klein and Defendant Ms. Relander in Pro Per are both ordered to personally appear.

 

 

 

 

 

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, July 26, 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

 

LINE 1

CIV 531711

DOUGLAS LEE, ET AL. VS. CHRISTOPHER HARTMAN, ET AL.

 

 

LEE, DOUGLAS

SMITH, EDWARD EGAN

HARTMAN, CHRISTOPHER

JOSEPH C, JR

 

 

 

 

Motion to Continue Trial Date

tentative ruling:

 

The court finds good cause to continue the trial date for approximately 90 days to January 23, 2017 and the msc will be continued to January 06, 2017 at 1:30 P.M. Discovery deadlines will be based upon the new trial date. Previously set dates for msc and trial are vacated.

 

 

 

 

 

 

9:00

 

line 2

16-CIV-00217

WILLIAM F. BALSON, et al. vs. FRANK GRASSLER, et al.

 

 

WILLIAM F. BALSON

Brian W. Newcomb

FRANK GRASSLER

 

 

 

Petition to Appoint Arbitrator

TENTATIVE RULING:

 

PURSUANT TO CCP 1281.6, AND BECAUSE THE PARTIES COULD NOT AGREE ON AN ARBITRATOR FROM AMONG THE LIST OF 3 NOMINEES PROPOSED BY PLAINTIFFS, OR THE 2 NOMINEES PROPOSED BY DEFENDANTS, THE COURT APPOINTS FROM AMONG THE 5 NOMINEES, RETIRED SAN MATEO COUNTY JUDGE MARGARET KEMP AS ARBITRATOR IN THIS MATTER.

 

 

 

 

 

 

 


POSTED:  3:00 PM

 

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