July 22, 2014
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 2M

 

JULY 22, 2014

 

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 483928       HEMINA PATEL VS. VINAYAK PATEL, ET AL.

 

 

HEMINA PATEL                          CARL PAGANELLI

VINAYAK PATEL                         MICHAEL HEATH

 

 

MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT BY HEMINA PATEL AND PRAFULABEN PATEL

 

 

·         Plaintiffs’ unopposed Motion for Leave to File Second Amended Complaint is GRANTED pursuant to Code of Civil Procedure § 473(a).

 

·         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

2

CIV 500745       MICHON COLEMAN VS. SAN MATEO COUNTY ASSOCIATION OF

                   REALTORS, ET AL.

 

 

MICHON COLEMAN                        TOMAS M. FLORES

S.M.C. ASSOCIATION OF REALTORS        JOSHUA J. CLIFFE

 

 

MOTION TO COMPEL PLAINTIFF'S FURTHER DEPOSITION BY SAN MATEO COUNTY ASSOCIATION OF REALTORS, STEVE BLANTON, ERIC BERGGREN, ROBERT BRISBANE, BOBBI DECKER, OLIVIA EDWARDS, SUZAN-GETCHELL WALLACE, PHILIP HOUSTON, KARON KNOX, ANNE OLIVA, DENNIS PANTANO, EDGAR TULCANAZA, DIANE WILSON, DAVID ZIGAL, MICHAEL VERDONE, JOHN PROUTY, FRANK VENTO AND CORRIN TROWBRIDGE

 

 

·         Defense counsel is directed to familiarize themselves with CRC 3.1110(f) and to comply with it in the future.

 

·         Defendants' Motion to Compel Plaintiff's Further Deposition is GRANTED.  Attorneys for all parties are to appear at the hearing with their calendars to meet and confer regarding three deposition dates, which dates will be included in the order.

 

·         Defendants are awarded sanctions against Plaintiff in the amount of $4,295.00.

 

·         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 Elizabeth K. Lee, Department 17.

 

_____________________________________________________________________

9:00

3

CIV 503189       LEONARD NORDEMAN, ET AL. VS. ROBERT M. LUBIN, ET AL.

 

 

LEONARD NORDEMAN                      TRACY N. TUMLIN

ROBERT M. LUBIN                       JOANNA L. STOREY

 

 

MOTION TO ENFORCE SETTLEMENT STIPULATION AND PETITION TO CONFIRM ARBITRATION AWARD BY LEONARD NORDEMAN AND MONTGOMERY SANSOME LP

 

 

·         Plaintiffs Leonard Nordeman and Montgomery Sansome LP’s Motion to Enforce Settlement Stipulation and Petition to Confirm Arbitration Award is GRANTED pursuant to CCP §§ 664.6 and 1288.

 

·         On February 4, 2013, in front of Judge Dylina, the parties agreed to split the costs of arbitration 50-50 between the Plaintiffs and Defendants.  The parties further agreed that the prevailing party may be entitled to costs of arbitration.  Plaintiffs paid $24,000 and former Defendant Robert M. Lubin paid $12,000 out of a total arbitration cost of $36,000.  Defendant Anthony V. Smith did not pay any arbitration costs.  Defendant Anthony V. Smith is ordered to pay Plaintiffs $6,000 for the remaining 50% of Defendants’ 50% liability of the arbitration costs and a further $9,000 as costs to the prevailing party.  Although Judge McDonald did not specifically refer to Plaintiffs as the prevailing parties, Plaintiffs clearly prevailed on their claim against Defendant Anthony V. Smith.  However, Plaintiffs did not prevail on their claim against one of the two defendants so it should not be entitled to the full costs of arbitration.  Defendant Anthony V. Smith is ordered to pay Plaintiffs $15,000 in arbitration costs.

 

·         Judge McDonald’s May 17, 2013 arbitration award is hereby confirmed.  Plaintiffs provided the Court with proof of a valid arbitration agreement and the arbitration award for $129,951.  Former Plaintiff Leonard Nordeman’s discharge of the liability to Jeffrey Conrad does not negate the fact that Plaintiff Montgomery Sansome LP did not discharge the liability and instead paid the full amount of the liability to Jeffrey Conrad.  Plaintiff provided information and evidence of these payments during arbitration.  Thus, Mr. Nordeman’s bankruptcy proceedings did not have a material impact on the outcome of the arbitration even if Defendants were not aware of Mr. Nordeman’s bankruptcy and discharge of the liability to Jeffrey Conrad. 

 

·         Moving parties are 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

4

CIV 514363       JAMES M. HUGGER, ET AL. VS. COAST CAPITAL INCOME FUND

                   LLC, ET AL.

 

 

JAMES M. HUGGER                       PRO/PER

COAST CAPITAL INCOME FUND LLC         MICHAEL D. MANDELL

 

 

MOTION TO STRIKE PORTIONS OF PLAINTIFFS' FOURTH AMENDED COMPLAINT BY COAST CAPITAL INCOME FUND, LLC

 

 

·         See below.

 

 

DEMURRER TO FOURTH Amended COMPLAINT of HUGGER BY COAST CAPITAL INCOME FUND, LLC

 

 

·         As to the Motion to Strike and the Demurrer, the Court is exercising its inherent power to control the litigation before it (CCP § 128) and hereby strikes the Fourth Amended Complaint in its entirety and reinstates the Third Amended Complaint as the operative pleading. Pursuant to Judge Lisa A. Novak’s order of March 21, 2014, the 5th Cause of Action in the Third Amended Complaint is dismissed without leave to amend.  The pending Demurrer and Motion to Strike regarding the Fourth Amended Complaint are vacated.

 

·         Defendant Coast Capital Income Fund, LLC shall file and serve an Answer to the Third Amended Complaint on or before August 8, 2014.

 

·         The reasons for the Court’s ruling are as follows:  On March 7, 2014, Judge Novak ruled on the demurrer brought by defendant Coast Capital Income Fund, LLC as to the Third Amended Complaint.  The ruling covered the Plaintiffs’ Third Amended Complaint and included all five causes of action.  The Court overruled the demurrers as to the 1st through 4th Causes of Action.  The demurrer as to the 5th Cause of Action was sustained without leave to amend.

 

·         On April 28, 2014, at a case management conference, Plaintiffs were ordered, among other things, to “file an Amended Complaint reflecting Judge Novak’s decision of March 7, 2014.”  As set forth above, Judge Novak’s order did not contemplate the filing of yet another Amended Complaint.

 

·         An Order Following Case Management Conference, Vacating and Replacing Prior Order was filed on May 14, 2014 again directing that the previous order of April 28, 2014 be vacated in its entirety and replaced with the order that “Plaintiffs shall file an Amended Complaint.”

 

·         Plaintiffs filed a Fourth Amended Complaint on May 15, 2014 which deleted the 5th Cause of Action.  In its Opposition to Demurrer of Coast Capital Income Fund, LLC, Plaintiffs correctly point out that under Judge Novak’s order of March 7, 2014, Coast Capital Income Fund, LLC should have answered or otherwise pleaded to the complaint or the remaining causes of actions.  Understandably, some confusion arose after the issuance of the orders dated April 28, 2014 and May 14, 2014.

 

·         Rather than proceed with another demurrer re-litigating issues already decided in Judge Novak’s order, the Court has ordered that the Fourth Amended Complaint be stricken, ruled that the Third Amended Complaint is the operative complaint, that Defendant’s Demurrer and Motion to Strike are vacated and that Defendant’s Answer to the Third Amended Complaint is due on or before August 8, 2014.

 

·         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

5

CIV 515674       CHRISTINA ABELLERA, ET AL. VS. STEVE HUNG CHIU, ET

                   AL.

 

CHRISTINA ABELLERA                    MARK W. SWANSON

STEVE HUNG CHIU                       G. KELLEY REID

 

 

MOTION TO SEAL CONFIDENTIAL DOCUMENTS THAT PLAINTIFFS AND DEFENDANT STEVE CHIU FILED OR LODGED IN OPPOSITION TO EBAY’S MOTION FOR SUMMARY JUDGMENT BY EBAY INC.

 

 

·         Defendant eBAY INC.’s unopposed Motion to Seal is GRANTED.  The Court orders that the following documents be sealed:

 

  • Documents lodged by Plaintiffs in opposition to eBAY’s Motion for Summary Judgment on June 9, 2014, bearing production numbers:

 

(a)   eBay 296: attached as a part of the Declaration of Scott  

    Righthand, Exhibit R;

 

(b)   eBay 297: attached as a part of the Declaration of Scott  

  Righthand, Exhibit R;

 

(c)   eBay 298: attached as a part of the Declaration of Scott  

  Righthand, Exhibit R;

 

(d)   eBay 300: attached as a part of the Declaration of Scott

  Righthand, Exhibit R;

 

(e)   eBay 628: attached as a part of the Declaration of Scott

  Righthand, Exhibit R;

 

(f)   eBay 3329: attached as a part of the Declaration of Scott

  Righthand, Exhibit G;

 

(g)   eBay 3330: attached as a part of the Declaration of Scott

  Righthand, Exhibit G;

 

(h)   eBay 3399: attached as a part of the Declaration of Scott

  Righthand, Exhibit E.

 

  • Documents filed by defendant STEVE HUNG CHIU in opposition to eBay’s Motion for Summary Judgment on June 9, 2014, bearing production numbers:

 

(a)  eBay 296: attached as part of the Declaration of Molly

 Sundstrom, Exhibit E;

 

(b)  eBay 673: attached as part of the Declaration of Molly

 Sundstrom, Exhibit E.

 

·         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

6

CIV 519758       APPLIED MEDICAL CORPORATION VS. T. PETER THOMAS, ET

                   AL.

 

 

APPLIED MEDICAL CORPORATION           RICHARD J. GRABOWSKI

T. PETER THOMAS                       SUSAN J. HARRIMAN

 

 

MOTION TO COMPEL PRODUCTION OF DOCUMENTS FROM THIRD PARTY REDPOINT MANAGEMENT LLC BY APPLIED MEDICAL CORPORATION

 

 

·         The Motion to Compel is denied.  Plaintiff has failed to make a fact specific showing of good cause entitling it to production of all Redpoint Management LLC’s communications.

 

·         To establish good cause a party must identify a fact that is of consequence in the action and explain how the discovery sought will tend to prove or disprove that fact or lead to evidence that will do so.  Digital Music, supra.  In Calcor, the Court found that the party seeking to compel discovery had not shown the information sought was reasonably calculated to lead to admissible evidence because it offered no focused fact specific justification for each of the categories of documents it sought.  Instead, it provided mere generalities. 

 

·         In this case, Plaintiff similarly fails to make any fact specific showing that it is entitled to all Redpoint Management LLC’s communications regarding Plaintiff.  Given Redpoint’s role in managing IVP’s investment in Applied Medical, these communications may include many documents that have nothing to do with the facts of this case.  At best, the Garret declaration merely indicates that individuals at Redpoint possess communications relating to the reasons for and the funding of Thomas’ exercise of his stock options which are relevant to the allegations in the First Amended Complaint.  Arguably these communications are already covered by Requests 1 - 3 and 5 of the subpoena which seek all communications and documents relating to: 1) Thomas’ stock option agreements, 2) Plaintiff’s exercise of its right to repurchase Thomas’ shares, 3) valuations of the shares reviewed, prepared or obtained by Redpoint and 4) Thomas’ and IVP’s dispute of Plaintiff’s valuation of the shares in connection with its exercise of its right of repurchase.

 

·         To the extent Plaintiff relies on Volkswagenwerk for the proposition that it need only show, in addition to relevance, that its reason for seeking the discovery is within the declared purpose of the Discovery Act, its reliance is misplaced for two reasons.  First, Volkswagenwerk was decided before Calcor, which is more directly on point.  Second, the Court states that a party seeking discovery must show, “in addition to relevance (broadly construed), that his reasons for seeking discovery are within the declared purposes of the Discovery Act (that is, discovery will aid his case)….”  The Court also states that the determination of good cause necessarily depends on the facts and issues of the particular case.  Here, as discussed above, Plaintiff has not shown that every Redpoint communication regarding Applied Medical will aid his case. 

 

·         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 525934       GERALD C. COLE VS. E & F FINANCIAL SERVICES, INC.

 

 

GERALD C. COLE                        EDWARD W. SUMAN

E & F FINANCIAL SERVICES, INC.        JEFFREY H. LOWENTHAL

 

 

MOTION TO COMPEL ARBITRATION AND STAY PROCEEDINGS BY E & F FINANCIAL SERVICES, INC.

 

 

·         Defendant E & F Financial Services, Inc.’s Motion to Compel Arbitration relating to disputes with plaintiff Gerald C. Cole and defendant E & F Financial Services, Inc. is GRANTED.  Defendant has established by a preponderance of the evidence that a contract between plaintiff Gerald C. Cole and defendant E & F Financial Services, Inc. exists and that the contract contains an arbitration clause.  Pursuant to the arbitration clause, the parties agreed to resolve any disputes arising out of the contract between the parties by way of binding arbitration governed by the AAA rules for commercial arbitration.  Plaintiff has failed to establish by a preponderance of evidence that the arbitration agreement was unconscionable.

 

·         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

8

CIV 527008       RENALDO RHODES VS. CITY OF EAST PALO ALTO, ET AL.

 

 

RENALDO RHODES                        ALISON BERRY WILKINSON

CITY OF EAST PALO ALTO                KRISTA MACNEVIN JEE

 

 

DEMURRER TO COMPLAINT of RHODES BY CITY OF EAST PALO ALTO AND THE EAST PALO ALTO POLICE DEPARTMENT

 

 

·         This matter has been continued to August 6, 2014 at 9:00 A.m. in the Law & Motion Department per stipulation of the parties. 

 

_____________________________________________________________________

9:00

9

CIV 528835       NOUVELLE ANALYTICS, LLC VS. MEDIA RIGHTS

                   TECHNOLOGIES, INC.

 

 

NOUVELLE ANALYTICS, LLC               MICHAEL MUSE-FISHER

MEDIA RIGHTS TECHNOLOGIES, INC.

 

 

APPLICATION FOR RIGHT TO ATTACH ORDER/WRIT OF ATTACHMENT AS TO MEDIA RIGHTS TECHNOLOGIES, INC. BY NOUVELLE ANALYTICS, LLC

 

 

·         This matter is moot.  Plaintiff filed a Notice of Withdrawal of the Plaintiff’s Application on July 16, 2014.  A Notice of Settlement of the Entire Case was filed on July 17, 2014.

 

_____________________________________________________________________

9:00

10

CLJ 209741       3180 OAK KNOLL DRIVE LLC vs. JIMMY KIM, et al.

 

 

3180 OAK KNOLL DRIVE LLC              TODD ROTHBARD

JIMMY KIM                             PRO/PER

 

 

DEMURRER TO COMPLAINT (UNLAWFUL DETAINER) of 3180 OAK KNOLL DRIVE LLC BY JIMMY KIM, JUAN LOPEZ, MARIA RODRIGUEZ AND MIGUEL RODRIGUEZ

 

 

·         Defendants Jimmy Kim, Juan Lopez, Maria Rodriguez and Miguel Rodriguez’s Demurrer to the Complaint is OVERRULED.

 

·         A demurrer tests the legal sufficiency of a pleading and raises only issues of law, not of fact, regarding the form or content of the pleading under attack.  A demurrer does not challenge the truthfulness of allegations in the pleading.  It assumes all facts pleaded are true, no matter how improbable.  Serrano v. Priest (1971) 5 Cal.3d 584, 591.  Accordingly, no demurrer will lie unless the defect under challenge appears on the face of the complaint or through a matter subject to judicial notice.

 

·         Here, the alleged defects do not appear on the face of the complaint.  Defendants’ Demurrer is based on the argument that the 3-Day Notice on which the UD is based is defective.  However, the 3-Day Notice contains all of the payment information required under CCP § 1161(2).  The allegation of the amount of rent due, $1650, must be accepted as true for purposes of demurrer.  See Serrano, supra.  As to the argument that the Notice was served prior to the rent becoming due, that is also belied by the Notice itself.  The rent for the month of June 2014 was due and payable on the first day of June.  The Notice was not served until June 19, 2014.

 

·         Defendants shall file an Answer no later than 2:00 p.m. on July 24, 2014.

 

·         Demurring parties are 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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