October 30, 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

 

OCTOBER 28, 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 515621       PARK PLAZA TOWERS, ETAL VS PATRICK MCERLAN,ETAL

 

 

PARK PLAZA TOWERS OWNERS ASSOC        GRANT H BAKER

PATRICK MCERLAIN                      RICHARD S. BAUM

 

 

MOTION TO STRIKE THE FOURTH CAUSE OF ACTION FOR DEFAMATION BY PARK PLAZA TOWERS OWNERS ASSOCIATION, JOSEPH SCHREURS, LADONNA HORWITZ, SHERRY BERENSTEIN

 

 

MOTION TO STAY THE ACTION BY PARK PLAZA TOWERS OWNERS ASSOCIATION, JOSEPH SCHREURS, LADONNA HORWITZ, SHERRY BERENSTEIN

 

 

MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION OF ISSUES BY

NANCY MCERLAIN AGAINST PARK PLAZA TOWERS OWNERS ASSOCIATION.

 

 

·         Cross-defendants’ Motion to Stay this action is GRANTED pending the conclusion of the Federal Court lawsuits which involve essentially the same parties and issues; the only exception is the Motion for Summary Judgment by Nancy McErlain which is pending, briefed and was filed on July 15, 2014 and which is now continued to Nov. 14, 2014.

 

·         The stay shall apply to the Anti-SLAPP Motion brought by Cross-defendants.

 

·         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

2

CIV 525485       DORSETTA CAGLE VS FREUTEL ROOFING INC ETAL

 

 

DORSETTA CAGLE                        JEFFREY R WINDSOR

FREUTEL ROOFING INC                   COLETTE F. STONE

 

 

MOTION TO SET ASIDE AND VACATE DEFAULT BY ELIZABETH GRAY

 

 

·         Defendant’s motion for relief from default is granted.  Plaintiff has stated she does not oppose the motion provided an Answer is filed by the defendant.  Defendant shall file her answer no later than October 31, 2014. 

 

·         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 525559       MASKAY INC VS AUTOBAHN MOTORS INC ETAL

 

 

MASKAY INC                            HERMAN FRANCK

AUTOBAHN MOTORS INC                   BRUCE NYE

 

 

DEMURRER TO THIrd Amended COMPLAINT of MASKAY INC BY AUTOBAHN MOTORS INC, SONIC AUTOMOTIVE INC

 

 

·         Defendant Autobahn, Inc’s Demurrer to the 3rd Amended Complaint is sustained without leave to amend as to the First and Second Causes of Action.  Plaintiff has not sufficiently alleged the elements of the causes of action for violation of Business & Professions Code §17045, Business & Professions Code §17200.  Defendant Autobahn, Inc.’s Demurrer to the 7th Cause of Action for Fraud is overruled.

 

·         B&P Code §17045 states:

 

·         The secret payment or allowance of rebates, refunds, commissions, or unearned discounts[1], whether in the form of money or otherwise, or secretly extending to certain purchasers special services or privileges not extended to all purchasers purchasing upon like terms and conditions, to the injury of a competitor and where such payment or allowance tends to destroy competition, is unlawful.

 

·         §17045 is part of the Unfair Practices Act, the purpose of which “is to safeguard the public against the creation or perpetuation of monopolies and to foster and encourage competition, by prohibiting unfair, dishonest, deceptive, destructive, fraudulent and discriminatory practices by which fair and honest competition is destroyed or prevented.” B&P Code §17001. “Section 17045, like the other provisions of the Act, must be ‘liberally construed’ to serve its purposes.”  Diesel Electric Sales & Service, Inc. v. Marco Marine San Diego, Inc. (1993) 16 Cal.App.4th 202, 212.  17045 prohibits a seller from secretly allowing unearned discounts to a purchaser that injure a competitor and tend to destroy competition.” Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 331.

 

·         “[T]here are three elements to a violation of section 17045. First, there must be a “secret” allowance of an “unearned” discount. Second, there must be ‘injury’ to a competitor. Third, the allowance must tend to destroy competition.” Id. at 212. 

 

·         Neither party has presented any case holding that a commission is not secret if the plaintiff knows about it or it is secret if the public does not know about it.  Plaintiff did know about the fee at the time it claims it was injured because it was not receiving referrals.  This C/A alleges that the purpose of the fee was "secret" from plaintiff during part of the time.  It could be argued that during the time plaintiff paid the fee, whose purpose was “secret” from plaintiff, plaintiff’s competitors were injured because they were not receiving referrals.

 

·         However the court finds that plaintiff has failed to meet the second and third elements.  The 2nd element is "‘injury’ to a competitor."  Plaintiff has certainly alleged that it was injured in that it is no longer receiving referrals and lost its Mercedes certification.  Autobahn argues that it is not a competitor of plaintiff as the TAC alleges that Autobahn is a dealer who refers its customers to AW for auto-body repairs.

 

·         Bus. & Prof. Code §17045 is not limited in scope to competition between sellers of particular products or services. A complaint may be made either by a competitor in the "primary line" of commerce (that is, by a competitor of one granting the secret rebate) or by a competitor in the "secondary" line (that is, by a competitor of one receiving the rebate). [Citations] Cal. Civ. Prac. Business Litigation § 60:41

 

·         In ABC International Traders, Inc. v. Matsushita Electric Corp. (1997) 14 Cal.4th 1247, a wholesale distributor of electronic equipment alleged a producer had, unknown to it, been giving a discount to two other distributers.  The court found that §17045's protection extended to the 2nd line, stating

 

·         Section 17045 is thus tailored to address the problem of a manufacturer or other producer who is forced or induced to give preferential prices to one or more individual purchasers, typically retailers. This practice, of course, is likely to be injurious to the disfavored buyers' business position and may tend to destroy competition among such buyers.  Id at 1267

 

·         Here, the facts do not to fit within §17045 as Autobahn is not giving plaintiff’s competitor, AW, a price discount.  Autobahn is not selling products to AW, but instead is referring customers to it for a fee.

 

·         The 3rd element is that the allowance or commission “must tend to destroy competition.”Injury to a competitor is not equivalent to injury to competition”.  Marsh v. Anesthesia Service Medical Group, Inc. (2011) 200 Cal.App.4th 480, 495.  Plaintiff did not address this argument in its opposition.  This cause of action alleges that the secret commission/unearned discount caused injury to competition because plaintiff has lost its ability to receive any customer referrals from Mercedes Benz dealers and there are several other talented and capable entities all of whom are also foreclosed from obtaining autobody referrals from Autobahn.  (¶80).  However, this conclusory allegation fails to specify how Autobahn’s conduct tended to destroy the competition as it would appear that Autobahn is willing to refer customers to the competition as long as they are willing to pay the fee.

 

·         Autobahn also argues that this C/A fails because plaintiff lacks standing to sue it under §17045.  Autobahn argues that those who have standing to sue under §17045 are those competing against the seller who provides a secret rebate/payment on the "primary line" and any customer of a seller who is disfavored by that seller providing a secret rebate to competitors of that customer.  This argument also appears to be persuasive.

 

·         Given that the second cause of action for Violation of B&P §17200 is based upon a violation of §17045, the demurrer to this cause of action is also sustained without leave to amend.

 

·         Defendants’ demurrer as to the 7th Cause of Action is overruled.  This C/A is alleged against Autobahn and Sonic and incorporates the prior 219 paragraphs.  It alleges Sonic originated, developed and it directly participated in the scheme to require plaintiff to pay the fraudulent co-op fees. 

 

·         This C/A alleges that on 4/1/08 Robert Dunnigan, Autobahn's GM verbally advised plaintiff it would have to pay $5000 per month for co-op advertising expenses and that Autobahn never did the ads (¶225).  This C/A alleges the fraud was a promise made in writing by David Ahlheim, Autobahn's Fixed Operations Director, without the intent to perform in that Autobahn represented it would prepare advertisements for plaintiff.  This C/A alleges Autobahn and Sonic concealed the fact that the monthly fees were not for ad co-op payments.  There are allegations that Autobahn acted at the direction of Sonic.  This C/A alleges plaintiff acted with justifiable reliance upon the representations and has been damaged.  This C/A is alleged with the requisite specificity.

 

·         Autobahn argues this C/A is defective because it is unclear whether Autobahn knowingly or unknowingly participated in Sonic’s scheme. "Generally, an agent is not held liable for the fraud of a principal, unless the agent knows of or participates in the fraudulent act."  Mars v. Wedbush Morgan Securities, Inc. (1991) 231 Cal.App.3d 1608, 1616.  Autobahn argues that as the TAC alleges Sonic owns Autobahn, Autobahn and its employees are Sonic's agents.  The TAC alleges that Autobahn participated in the fraudulent act as its GM and Fixed Operations Director were the ones who made the representations and promises.  The TAC alleges when “defendant” made these representations it knew they were false.  (¶237)  The TAC alleges that Ahlheim testified the co-op ad program was given to him by Sonic.  The TAC alleges Autobahn and Sonic concealed facts with the intent to defraud plaintiff (¶243).  This is sufficient to allege fraud.

 

·         Sonic Automotive's request for judicial notice is granted.  Sonic Automotive's demurrer to the 3rd amended complaint on grounds that it is barred by the statute of limitations is sustained with leave to amend.  The court takes judicial notice of the fact that the original complaint did not contain any Doe defendants.  Nor has plaintiff alleged sufficient facts showing delayed discovery (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808) or a continuing violation or continuous accrual (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1192).

 

·         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

4

CIV 526751       CHRISTINE MILLS vs. DIGNITY HEALTH, et al.

 

 

CHRISTINE MILLS                       CAROLYN A. GYERMEK

DIGNITY HEALTH                        CYRUS A. TABARI

 

 

MOTION FOR SUMMARY JUDGMENT AS TO COMPLAINT of MILLS FILED BY

JELENA M. KAO MD

 

 

·         This matter has been continued to November 14, 2014 at 9:00 a.m. pursuant to stipulation by the parties.

 

 

_____________________________________________________________________

 

9:00

5

CIV 528714       CABALLERO VS VILLA SIENA, ET AL.

 

 

JOSEFINA CABALLERO                    PARVIZ DARABI

VILLA SIENA                           PAUL E GASPARI

 

 

MOTION TO AMEND ANSWER OF DEFTS TO PLAINTIFF'S COMPLAINT FOR DAMAGES BY VILLA SIENA, FABIAN MONTEBELLO

 

 

·         Defendants Villa Siena and Favian Montebello’s unopposed Motion to Amend the Answer to add an Affirmative Defense and to correct the spelling of Defendant’s name is GRANTED pursuant to CCP § 473(a)(1) as well as California’s liberal public policy in permitting amendments to pleadings.

 

·         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

6

CIV 529898       HEATHER HARDING VS KEITH M. PELCZARSKI

 

 

HEATHER HARDING                       JENNIFER L KNOPS

KEITH M PELCZARSKI                    ANNE E. SMIDDY

 

 

MOTION TO SEAL RECORDS AND USE PSEUDONYMS IN FILINGS BY KEITH M PELCZARSKI

 

 

·         Defendant’s Motion to Seal Records and Use Pseudonyms is DENIED.

 

·         Defendant’s Evidentiary Objection to paragraph 5 in Plaintiff’s declaration is sustained on the grounds of hearsay and lack of personal knowledge. 

 

·         Defendant’s Motion to Seal Records as to the parties’ medical records is moot as a stipulated protective order was entered in this action on October 16, 2014. 

 

·         Defendant’s arguments regarding the need for pseudonyms in this action are unavailing.  Although the information alleged in the Complaint is of a highly sensitive nature (see Doe v. Lincoln, 188 Cal.App.4th at 767 citing Does I thru XXIII v. Advanced Textile Corp. (9th Cir. 2000) 214 F.3d 1058, 1068), that very same information has been publicly available for over two months.  The parties agree that Plaintiff posted to her Facebook wall alleging that Defendant gave her a sexually transmitted disease.  Defendant also failed to file this motion until over a month after both the Complaint and Answer were filed in this action. 

 

·         Further, to the extent Defendant’s Motion to use pseudonyms is in effect a motion to seal the records already filed in this matter, Defendant waived his right to move for an order sealing the documents by waiting until over a month after the documents were filed to file this motion.  See Savaglio v. Wal-Mart Stores, Inc. (2007) 149 Cal.App.4th 588, 600. 

 

·         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

7

CIV 530745       JOHN SHAHIN VS AMICA MUTUAL INSURANCE COMPANY

 

 

JOHN SHAHIN                           NICOLE L MEREDITH

AMICA MUTUAL INSURANCE COMPANY

 

 

MOTION TO COMPEL FACEBOOK INC TO COMPLY WITH SUBPOENA, ETC BY AMICA MUTUAL INSURANCE COMPANY

 

 

·         This matter has been continued to November 18, 2014 at 9:00 a.m.

 

 

_____________________________________________________________________

 

9:00

8

CLJ 523616       COUNTY OF SAN MATEO VS MARY PREM

 

 

COUNTY OF SAN MATEO, POL. SUBD        EUGENE WHITLOCK

MARY PREM                             PRO/PER

 

 

MOTION FOR SUMMARY JUDGMENT AS TO COMPLAINT of POL. SUBDIV.

FILED BY COUNTY OF SAN MATEO, POL. SUBDIV.

 

 

·         Plaintiff County of San Mateo’s Motion for Summary Judgment is GRANTED.  Plaintiff has met its initial burden pursuant to CCP § 437c(p)(1) through the written Conditions of Admissions and Services Form  [Exhibit B to the declaration of Eugene Whitlock]; the declaration of counsel Eugene Whitlock and the declaration of Diane Gramse, the Manager of Billing and Collections for the San Mateo County Medical Center.  Their separate statement of material facts establishes the elements of breach of contract as set forth in California Forms of Pleading and Practice, §140.55.

 

·         The burden then shifts to defendant to create a triable issue of material fact.  Defendant has not done so.  Defendant has filed untimely opposition [Sept. 29, 2014] which purports to dispute statements made in the memorandum of points and authorities in support of the motion as well as statements made in the declarations of Eugene Whitlock and Diane Gramse.  Essentially, defendant disputes the reasonableness of the charges.  She has failed to specifically dispute any of the 9 material facts set forth in the moving party’s Separate Statement. Defendant has submitted no evidence that actually raises a material factual issue. 

 

·         The Plaintiff’s evidence establishes the amount of the debt and Defendant has not presented any evidence to refute it.

 

·         Judgment for Plaintiff in the amount of $19,068.75 principal, and pre-judgment interest at the rate of 10% per annum from January 11, 2012 to October 28, 2014. 

 

·         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

9

CLJ 527386       DISCOVER BANK VS ANDREW J ANDERSON

 

 

DISCOVER BANK                         CASEY M JENSEN

ANDREW J ANDERSON                     PRO/PER

 

 

MOTION TO DEEM FACTS AS ADMITTED, MPA AND SUPPORTING DECL; AND REQUEST BY DISCOVER BANK

 

 

·         Plaintiff Discover Bank’s Motion to Deem Matters Admitted is GRANTED pursuant to CCP 2033.280.  The Request for Admissions [Set No. 1] was served on Defendant and no responses have ever been filed.  All those matters contained in Plaintiff’s Request for Admissions [Set No.1] dated July 29, 2014 are hereby deemed admitted.  Defendant shall also pay sanctions in the amount of $200 pursuant to CCP 2033.280.

 

·         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

10

CLJ 528770       CAVALRY SPV I, LLC VS MARIBETH C. ALCAYDE, ETAL

 

 

CAVALRY SPV I, LLC.                   STEPHEN S ZELLER

MARIBETH C ALCAYDE                    PRO/PER

 

 

MOTION TO DEEM FACTS AS ADMITTED. MPA AND SUPPORTING DECL; AND REQUEST FOR ATTY BY CAVALRY SPV I, LLC.

 

 

·         This matter is moot.  This action was dismissed on October 8, 2014.

 

 

_____________________________________________________________________

 

 

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

 

OCTOBER 28, 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 530193       CORTHERA, INC. VS. SCOTTSDALE INSURANCE COMPANY

 

 

CORTHERA, INC.                        KAREN P. KIMMEY

SCOTTSDALE INSURANCE COMPANY

 

 

COMPLEX CASE STATUS CONFERENCE

 

 

·         APPEAR. 

 

 

______________________________________________________________________

 

 



[1] Autobahn has neither argued not presented any authority that the referral fee it received was not a “payment or allowance of rebates, refunds, commissions, or unearned discounts”

© 2014 Superior Court of San Mateo County