April 24, 2014
Law & Motions Tentative Rulings
  • Law and Motion Department Tentative Ruling Line:  (650) 363-1882
  • 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 LISA A. NOVAK

Department 13

 

400 County Center, Redwood City

Courtroom 2C

 

APRIL 22, 2014

 

IF YOU INTEND TO APPEAR ON ANY CASE ON THIS CALENDAR YOU MUST DO THE FOLLOWING:

1.      YOU MUST CALL (650) 363-1882 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

1

CIV 515621    PARK PLAZA TOWERS OWNERS ASSOCIATION, ET AL.

              VS.

              PATRICK MCERLAN, ET AL.

 

PARK PLAZA TOWERS OWNERS ASSOCIATION  GRANT H. BAKER

PATRICK MCERLAIN                      RICHARD S. BAUM

 

 

MOTION FOR LEAVE TO AMEND ANSWER TO 1ST AMENDED COMPLAINT BY NANCY MCERLAIN

 

  • Defendant, Nancy McErlain’s, Motion for Leave to Amend Her Answer to the First Amended Complaint is GRANTED. The proposed Amended Answer shall be filed and served within 15 days after service of Notice of Entry of Order. 

 

 

 

_____________________________________________________________________


9:00

2

CIV 516550    IAR SYSTEMS SOFTWARE, INC., ET AL.

              VS.

              NADIM SHEHAYED, ET AL.

 

 

IAR SYSTEMS SOFTWARE, INC.            ANTONIO VALLA

NADIM SHEHAYED                        JEFFREY M. CURTISS

 

 

MOTION FOR ORDER STAYING THE PROCEEDINGS BY NADIM SHEHAYED, NADINE ABOU-HAIDAR

 

 

  • The motion is denied.

 

  • Prejudice may result if the trial is not stayed pending an appeal of an “arguably meritorious” claim of disqualification. (Reed v. Superior Court (2001) 92 Cal.App.4th 448, 455.)  The Reed decision makes clear that a stay is not automatic in a situation such as this which it analogizes to that of an injunction in that the issue at hand is one which is collateral to the underlying litigation.  However, the Reed court does not create a standard by which such a motion must be analyzed, as suggested by Plaintiff.  Rather, in dicta  it states that the Court of Appeal might grant a stay if the appealing party makes “a reasonably persuasive showing” that the disqualification has merit:

 

 

o   If the trial court denies a request to stay the underlying proceedings, the moving party may request the appellate court to stay them. The party could request the stay by a petition for a writ of supersedeas ancillary to an appeal from the order denying disqualification.  Or the party could request the stay from the appellate court ancillary to a petition for extraordinary relief on the merits.  A petition for extraordinary relief on the merits accompanied by a request for an immediate stay is preferable, because generally extraordinary writs are determined more speedily than appeals. The specter of disqualification of counsel should not be allowed to hover over the proceedings for an extended period of time for an appeal.

 

o   Whichever method is used for seeking appellate relief, a reasonably persuasive showing that the claim of disqualification likely has merit will probably persuade the appellate court to stay the underlying proceedings pending resolution of the disqualification issue. 

 

(Reed v. Superior Court (2001) 92 Cal.App.4th 448, 455.)  Thus, the “reasonably persuasive showing” described in Reed is nothing more than dicta, which at most described only the circumstances under which the appellate court would “probably” grant a stay. It is not a standard of proof.

 

 

  • Whether the granting of a stay will result in prejudice to either side was also discussed in Reed:

 

 

o   Courts of appeal understand that prejudice occurs if the trial is not stayed pending an appeal of an arguably meritorious claim of disqualification. (Meehan v. Hopps, supra, 45 Cal.2d at p. 218, 288 P.2d 267.) In some cases, however, the claim of disqualification will be insubstantial or even frivolous. To hold that an appeal from an order denying disqualification automatically stays the trial proceedings would encourage the use of such motions and appeals merely to delay the trial. Gregori v. Bank of America (1989) 207 Cal.App.3d 291, 300–301, 254 Cal.Rptr. 853, states, “[A]s courts are increasingly aware, motions to disqualify counsel often pose the very threat to the integrity of the judicial process that they purport to prevent. Such motions can be misused to harass opposing counsel, to delay the litigation, or to intimidate an adversary into accepting settlement on terms that would not otherwise be acceptable. In short, it is widely understood by judges that ‘attorneys now commonly use disqualification motions for purely strategic purposes.’ …Appellate courts have the flexible capacity to grant or deny a request to stay the trial by writ of supersedeas, depending upon the strength of the preliminary showing of the alleged conflict of interest. If the showing on the petition for a writ of supersedeas is unpersuasive, the trial can proceed because the moving party is not likely to prevail on the appeal of the disqualification issue.

 

 

·         Neither the moving nor reply papers present any evidence or law supporting a conclusion that Defendant’s motion for disqualification had merit.   As such, the motion is denied.

 

  • If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, Plaintiff 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.

_____________________________________________________________________


9:00

3

CIV 516645    MARY SUN VS. TIEN YUNG HSU, ET AL.

 

 

MARY SUN                              HYUN-YOUNG NA

TIEN (JERRY) HSU                      PRO/PER

 

 

MOTION FOR ORDER COMPELLING FURTHER ANSWERS TO PLAINTIFF'S REQUESTS FOR PRODUCTION BY MARY SUN

 

 

·         Sun’s motion to compel further answers to requests for production, set 2 and sanctions is granted. Defendant Hsu is ordered to provide further, code-compliant (CCP §§2031.210, 2031.220, 2031.230, 2031.240) responses, without objections to requests for production 1, 5, 6, 7, 8, 10 and 11 within 15 days.  Plaintiff Sun is awarded monetary sanctions against Hsu in the amount of $1,365.00.

 

MOTION FOR ORDER COMPELLING FURTHER ANSWERS TO SPECIAL INTERROGATORIES BY MARY SUN

 

·         Sun's motion to compel further answers to interrogatories, set 2 and sanctions is granted as to special interrogatories 1, 2, 4, and 8.  Defendant’s responses were not code compliant in addition to being nonresponsive and/or incomplete.  Defendant Hsu is ordered to provide further complete, verified responses within 15 days calendar days of the hearing.  Son is awarded sanctions against Hsu in the amount of $1,490.00 on or before May 5, 2014.

 

·         Sun’s motion to compel further responses to Nos. 5 and 6 are DENIED.  Plaintiff relies on information in support of her claim for good cause requiring further response without providing admissible evidence in support thereof.

 

·         Moving attorney 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 Lisa A. Novak, Department 13.

 

 

_____________________________________________________________________


9:00

4

CIV 517508    ANNI HENGESBACH-GOMES VS. SAN MATEO COUNTY, ET AL.

 

 

ANNI HENGESBACH-GOMES                 BRADLEY D. FELL

SAN MATEO COUNTY                      JOHN C. BEIERS

 

 

MOTION FOR SUMMARY JUDGMENT AS TO COMPLAINT of HENGESBACH-GOMES FILED BY PLAYCORE WISCONSIN, INC.

 

·         Defendant Playcore Wisconsin, Inc.’s Request for Judicial Notice is granted pursuant to Evidence Code 452(d).

 

  • Defendant Playcore Wisconsin, Inc.’s  Motion for Summary Judgment is DENIED. Defendant has met its initial burden pursuant to CCP 437c(o)(2) of demonstrating that one or more elements of the cause of action cannot be established or that they have a complete defense to it. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850.

 

  • The burden then shifts to Plaintiff under CCP §437c(0)(2) to show that a triable issue of material fact exists as to those causes of action or defense thereto. Plaintiff has met that burden. Defendant’s motion is based in large part on the declaration of their expert, Mr. Shannon.  Plaintiff rebuts his declaration with his own deposition testimony, and in so doing has demonstrated inherent inconsistencies in the testimony of Mr. Shannon.  Those inconsistencies contribute significantly to Plaintiff identifying triable issues of material fact regarding the foreseeability of misuse of the product, feasible alternative design, and failure to warn.  Plaintiff has created triable issues  of material fact as to facts 3, 7, 8, 9, 10, 11, 14, 18, 19, 20, 21, 22, 25, 29, 30, 31, 32, 35, 39, 40, 41, 42, 45, 49, 50, 51, 52, 53, 56, 60, 61, 62, 63, 64, 67, 71, 72, 73, 76, 80, 81, 82, 83, 86, 90, 91, 92, 93, 94, 97, 101, 102, 103, 104 and 105.

 

  • Plaintiff’s Request for Sanctions under CCP §128.7 is DENIED without prejudice. Plaintiff has failed to provide 16 court day’s notice of the request as required under CCP §1005(b).

 

 

MOTION FOR SUMMARY JUDGMENT AS TO COMPLAINT of HENGESBACH-GOMES FILED BY SAN MATEO COUNTY, SAN MATEO COUNTY BOARD OF SUPERVISORS

 

  • Moot.

 

_____________________________________________________________________


9:00

5

CIV 523099    CHERYL ROSE VS. DIANA NG, ET AL.

 

 

CHERYL ROSE                           IGOR KOPILENKO

DIANA NG                              JESSICA A. NUDELMAN

 

 

DEMURRER TO 2nd Amended COMPLAINT of ROSE BY VILLAGE IN THE PARK HOMEOWNERS' ASSOCIATION

 

 

  • Defendant Village in the Park HOA’s demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.  This motion attacking the third amended complaint following the court sustaining an earlier demurrer.  The reasoning in this ruling is the same:  Plaintiff has failed to allege any facts establishing Defendant HOA owed a duty to Plaintiff; without said duty there can stand no claim for negligence.  The Court again relies on Rowland v. Christian (1968) 69 Cal.2d 108 and Yuzon v. Collins (2004) 116 Cal.App.4th 149.  Plaintiff has set forth only a conclusion that Defendant had actual knowledge that Plaintiff’s dog had dangerous propensities, and as such Defendant’s HOA should have warned Plaintiff.  Absent are any facts supporting the conclusion either that Defendant HOA had any such knowledge.  It seems Plaintiff cured its last deficient pleading not by adducing facts in support of its allegations, but simply deleting the offending language and inserting new blanket allegations. 

 

_____________________________________________________________________


9:00

6

CIV 525403       ERIK FERROGGIARO VS. FEDERAL EXPRESS CORP.

 

 

ERIK FERROGGIARO                      PRO/PER

FEDERAL EXPRESS CORP.

 

 

MOTION TO QUASH SERVICE OF SUMMONS BY FEDERAL EXPRESS CORP.

 

 

  • Defendant’s motion to quash service of summons is GRANTED.  See, Code of Civ. Proc. Sec. 416.10; Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426.

 

  • With respect to corporations, persons upon whom summons may be served are those persons designated as agents for service of process, or to the president, chief executive officer, other head of corporation, vice president, secretary or assistant secretary, a treasurer or assistant treasurer, a controller or chief financial officer, a general manager or person authorized by the corporation to receive service of process.  CCP Sec. 416.40.  Plaintiff did not properly serve a person on behalf of whom service may be made on a corporation. The proof of service states service was by “substitute service” but in fact it was accomplished by mail.  Plaintiff did not comply with the authorized manner of service by mail and acknowledgement of receipt under CCP Sec. 415.30.  

 

  • If the tentative ruling is uncontested, it shall become the order of the Court. The moving 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 written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court. 

 

 

_____________________________________________________________________


9:00

7

CIV 525428  KHUONG CHI-LA, ET AL. V.S BETTER HOMES AND GARDENS, ET AL.

 

 

KHUONG CHI-LA                         KENYON MARK LEE

BETTER HOMES AND GARDENS              R. ERNEST MONTANARI

 

 

MOTION FOR ORDER DETERMINING GOOD FAITH SETTLEMENT BY KHUONG CHI-LA, TIEN T. TRINH-LA

 

 

  • The motion for determination of good faith settlement is DENIED    without prejudice.  The motion, although unopposed, lacks a declaration setting forth admissible evidence which the court can consider in evaluating whether the criteria set forth in Tech-Built Inc., v. Woodward-Clyde Associates (1985) 38 Cal.App.3d 488 have been satisfied.

 

  • If the tentative ruling is uncontested, it shall become the order of the Court. The moving 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 written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court. 

 

 

 

_____________________________________________________________________


9:00

8

CIV 525448    BRENDA FRANCO, ET AL. VS. JOHN ADAMO, ET AL.

 

 

BRENDA FRANCO                         STEVEN B. PISER

JOHN ADAMO                            DAVID G. FINKELSTEIN

 

 

DEMURRER TO CROSS-COMPLAINT of ADAMO BY RICHARD J. BOCCI

 

  • Cross-Defendant RICHARD BOCCI’s Demurrer to Cross-Complaint is SUSTAINED WITH LEAVE TO AMEND as to the Fourth cause of action for negligence, on the ground that it does not allege facts sufficient to state a cause of action.  Code Civ. Proc. §430.10(e).  The elements of a negligence cause of action are (1) a legal duty to use due care, (2) breach of that duty, (3) breach as a proximate cause of resulting injury, and (4) damages.  Jones v. Grewe (1987) 189 Cal.App.3d 950, 954.  Here, the Adamos do not sufficiently allege that BOCCI, as Plaintiffs’ agent, owed them any sort of duty.

 

 

MOTION TO STRIKE BY BRENDA FRANCO, PAULA FORMOSA M.D., GERALDINE SCOPESI, EMILY UCCELLI, ROY UCCELLI

 

 

·         Defendant’s request for judicial notice is GRANTED, although not for the truth of any matter asserted therein.

 

·         The Court rules on Defendant’s objections as follows:

 

         SUSTAINED as to No. 1,3, and 5

         OVERRULES as to No. 2, 4

 

  • Plaintiffs / Cross-Defendants BRENDA FRANCO; PAULA FORMOSA, M.D.; GERALDINE SCOPESI; EMILY UCCELLI and ROY UCCELLI’s Special Motion to Strike the Cross-Complaint pursuant to Code Civ. Proc. § 425.16 is GRANTED as to the Third cause of action for express indemnity and Sixth cause of action for declaratory relief (express indemnity) only.

 

  • A defendant moving to strike has the burden to show that the act underlying a cause of action arises from protected activity.  City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79.  Once this has been established, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the claim.  Zamos v. Stroud (2004) 32 Cal.4th 958, 965.  To do so, the plaintiff must show that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence is credited.  Id.

 

  • Here, Plaintiffs / Cross-Defendants have met their burden of demonstrating that the Third and Sixth causes of action arise out of protected activity.  These claims specifically allege that Cross-Complainants, the Adamos, have suffered loss and damage as a result of Plaintiffs’ filing of the Complaint, and that they are entitled to indemnity for these damages under the terms of the ground lease.  (See Cross-Complaint at ¶¶ 47, 48, 64.)  It is black letter law that the litigation privilege protects statements made in litigation, such as the filing of a complaint.  See Jarrow Fomulas, Inc. v. LaMarche (2008) 31 Cal.4th 728, 738 (the litigation privilege “poses a clear bar” to actions based on statements made in litigation); Civil Code § 47 (publication or broadcast of statement is privileged if made in a judicial proceeding). 

 

  • The burden then shifts to the Adamos to establish a probability they will prevail on the claim, i.e., “make a prima facie showing of facts which would, if proved at trial, support a judgment in plaintiff’s favor.”  Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 646.  The Adamos have not met this burden.  Indeed, their Opposition makes no reference whatsoever to the indemnity claims.  Plaintiffs argue that the “indemnity” provision upon which the Adamos rely, Section 7 of the Ground Lease, is not an indemnity provision at all, but rather a “hold harmless” provision whereby Plaintiffs promise to defend the Adamos from claims brought by third parties. Since the Adamos provide no rebuttal, they have failed to demonstrate the probability of prevailing on their indemnity claims, and the special motion to strike is granted as to these causes of action.

 

  • The Plaintiff’s motion to strike is GRANTED as it relates to the Second Cause of Action, Breach of the Covenant of Good Faith and Fair Dealing.  Specifically, paragraph 41 is fatal to Cross-Complainant.  That paragraphs states, “Cross-Defendants also breached the covenant of good faith and fair dealing when they filed the current complaint for Declaratory Relief to try to ratify their breach of the GL.”   This is clearly a mixed cause of action.  Specially alleging a breach by virtue of filing the action for declaratory relief is not merely collateral to the allegation as a whole, but an identified course of conduct Cross-Complainant expressly asserts violates the covenant.  It is without question Cross-Defendants’ filing of the action for declaratory relief is protected activity.  With the burden then shifting, Cross-complainants have failed to show the a probability of success. 

 

  • As for the remainder of the causes of action alleged in the Cross-Complaint, the Court finds that Plaintiffs / Cross-Defendants have not met their initial burden of demonstrating that they arise from protected activity.  The “principal thrust or gravamen” of the Adamos’ First cause of action for breach of contract; Second cause of action for breach of the implied covenant; Fourth cause of action for negligence; and Fifth cause of action for declaratory relief (breach of lease) is Plaintiffs’ alleged breach of the ground lease, not the protected activity of filing the instant lawsuit.  Ramona Unified School District v. Tsiknas (2005) 135 Cal.App.4th 510, 519-20.  While it is true that Cross-Complainants insert language in some of these claims referencing Cross-Defendants’ original pleading, that does not change the tenor of the causes of action filed herein. Accordingly, the special motion to strike is DENIED as to these causes of action.     

 

  • If the tentative ruling is uncontested, it shall become the order of the Court. The moving 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 written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court. 

 

_____________________________________________________________________

 

 


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 ROBERT D. FOILES

Department 21

 

400 County Center, Redwood City

Courtroom 2J

 

APRIL 22, 2014

 

If you plan to appear on any case on this calendar,

 you must call (650) 261-5121 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 521289    ROBERT POULIN VS. KHOSROW NINIJANI, ET AL.

 

 

ROBERT POULIN                         ADAM C. KENT

KHOSROW NINIJANI                      CHRISTINA E. KIM

 

 

MOTION TO CONTINUE TRIAL BY ROBERT POULIN

 

 

·         APPEAR. 

 

 

______________________________________________________________________

9:00

2

CIV 525544    SOLARCITY CORPORATION VS. SOLIGENT DISTRIBUTION, LLC

 

 

SOLARCITY CORPORATION                 ULRICO S. ROSALES

SOLIGENT DISTRIBUTION, LLC            EVAN NADEL

 

 

MOTION TO DESIGNATE CASE AS COMPLEX BY SOLIGENT DISTRIBUTION, LLC

 

 

·         APPEAR. 

 

 

______________________________________________________________________

9:00

3

CIV 526548    RACHEL DOSSEY, ET AL. VS. SKINNYPOP POPCORN, LLC

 

 

RACHEL DOSSEY                         JONATHAN E. GERTLER

SKINNYPOP POPCORN, LLC                MATTHEW BROOKS BORDEN

 

 

COMPLEX CASE STATUS CONFERENCE

 

 

·         Hearing off calendar. Matter removed to Federal Court per notice received March 5, 2014. 

 

 

______________________________________________________________________

 

 

 

 

 


POSTED:  3:00 PM

 

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