February 23, 2018
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.

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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, February 20, 2018

                           TENTATIVE RULINGS

 

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

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Line: 1

17-CIV-03360 BRUGGER CORPORATION vs. AMIDI CONVENTION WAY, LLC, et al.

 

 

BRUGGER CORPORATION                    MATTHEW D. ZUMSTEIN

AMIDI CONVENTION WAY, LLC              KAVEH DABIEI

 

 

AMIDI CONVENTION WAY, LLC’S MOTION FOR ORDER AND FOR COMPLIANCE AND REQUEST FOR SANCTIONS AGAINST BRUGGER CORPORATION

 

·         CONTINUED TO MARCH 6, 2018, AT 9:00 AM. The Parties having presented a Stipulation making joint request that the Hearing on this Motion be postponed to March 6th, and the Court (Hon. Susan L. Greenberg) having issued its Order approving the Stipulation, this matter is set over to be heard in the Law & Motion Dept. on Tuesday, March 6, 2018 at 9:00 am.

 



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17-CIV-04915     ANA MONTALVAN vs. EXPEDITORS INTERNATIONAL OF

                   WASHINGTON, INC, et al.

 

 

ANA MONTALVAN                               PARVEEN TUMBER

EXPEDITORS INTERNATIONAL OF WASHINGTON, INC. THEODORA R. LEE

 

 

DEFENDANT’S HEARING ON DEMURRER TO PLAINTIFF ANA MONTALVAN’S 7-21-17 COMPLAINT

 

·         OVERRULED.  Counsel for the Parties having made a showing that they have now satisfied the requirement of a pre-demurrer Meet & Confer (see CCP, Section 430.41), Defendant Expeditors International of Washington, Inc.’s Demurrer to Complaint is Overruled. Defendant to file and serve its Answer within 20 days of Notice of Entry of this Order.

 

 

·         This is a wrongful termination case brought by Plaintiff Ana Montalvan against her former employer Expeditors Intl. In her Complaint, Plaintiff brings Causes of Action as follows:

(1)    Discrimination (sex/gender) (Govt. Code 12940);

(2)    Failure to prevent discrimination/harassment/retaliation  (Govt. Code 12940(i));

(3)    Retaliation (Govt. Code 12940(h));

(4)    Wrongful termination (constructive discharge) in violation of FEHA and public policy);

(5)    Violations of Labor Code 201, 202, 203, 218 (willful failure to pay all wages upon separation)

(6)    Violations of Labor Code 226 and 8 CCR 11090 (failure to provide accurate wage statements);

(7)     Intentional infliction of emotional distress.

 

Demurrer is made to the claims asserted in the first four Causes of Action.

 

·         The Court is of the opinion, and I so find, that the Parties’ respective motion, opposition, and reply papers present an evidentiary dispute that cannot be fairly resolved on Demurrer, where the Court is generally limited to the pleadings themselves and matters subject to judicial notice. See Childs v. State of California (1st Dist. 1983) 144 Cal.App.3d 155, holding that plaintiff’s general allegation as to notice of rejection being made “on or about” June 10, 1980 was sufficient to withstand a general demurrer and that it is enough to allege that the claim may be timely. See also Esparza v. Kaweah Delta Dist. Hosp.(5th Dist. 2016) 3 Cal.App.5th 547, 556.

 

·         Here, Plaintiff alleges (Complaint, pg 13, ¶ 65) that “On August 26, 2016, Plaintiff filed a timely charge of discrimination……” with DFEH. This allegation is sufficient to meet the requirement of the above-cited cases.

 

 

·         Furthermore, Defendant Expeditors Intl here argues that Plaintiff did not comply with the one-year filing deadline set forth in Govt. Code Sect. 12960(d); and this contention is made based on the pre-suit administrative claim, for which the moving Defendant here asks be judicially noticed. I.e. to establish from judicially noticed facts that she filed her verified claim with the DFEH at a later time more than one year after her alleged constructive discharge. Defendant thereby rests on the point that the administrative claim itself refutes her general allegation in the pleading here.

 

·         At the most, those judicially noticed facts show, again, only that the suit here may be time-barred. Notwithstanding that issue which the pleadings and the demurrer both frame, it is also important to note that the cases interpreting and applying Sect. 12940 et. seq. hold that the one-year deadline can in some cases be equitably extended/tolled, depending on the facts.  See Holland v. Union Pacific Railroad Co. (2007) 154 Cal.App.4th 940, reversing trial court’s granting of defendant’s motion for summary judgment because Plaintiff submitted evidence showing she was diligent in pursuing her claim with the DFEH, and the DFEH misled her into believing she had complied with the statute of limitations and that she did not need to worry about the timeliness of her verified Complaint.

 

·         In view of the moving Defendant’s judicial notice request, on which their material argument here is almost exclusively based, and thereby opening up the subject of the factual issue of whether or not the underlying pre-suit government claim was timely, this Court believes that Plaintiff is entitled to tell, to some limited degree, the other side of the story. See Evidence Code, Section          .  

 

·         In opposing Defendant’s Demurrer, Plaintiff here offers a lengthy Declaration with several attached exhibits, and she alleges facts that, according to her, demonstrate she was diligent in pursuing her claim(s) and was unfairly misled by the DFEH, which resulted in Plaintiff missing the one-year filing deadline.  Based on this evidence, Plaintiff contends equitable tolling/estoppel should apply, and therefore, her Sect. 12940 claims (causes of action Nos. 1-4) are timely. 

 

·         Accordingly, the Court will exercise the discretion to treat Plaintiff’s Declaration as a verification of her general allegation in ¶65 that her administrative claim was timely. However, this is being done for pleading evaluation purposes only. The Court does not reach the merits of this time-bar dispute, which should be more appropriately addressed in an evidentiary motion.

 

 

·         Defendant’s unopposed Request for Judicial Notice is GRANTED as Exhs. A, E, and F (Evid. Code Sect. 452(c)-(d)) and Exhs. B, C, and D (Evid. Code Sect. 452(c)). Also, the Court treats Plaintiff’s Declaration as a Pleading verification for the reasons above-stated.

 

·         If the Tentative Ruling is uncontested, the Tentative Ruling shall stand as the Court’s ruling herein. Defense Counsel to prepare the necessary form of Order consistent with the ruling, and give Notice of Entry as required by law. Form of Order to be submitted directly to the Hon. Gerald J. Buchwald, Dept. 10.

 



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17-CIV-05571     RAMIL OCBENA vs. FRANCISCO BARRERA, et al.

 

 

RAMIL OCBENA                           ILENE M. HOCHSTEIN

FRANCISCO BARRERA                      PRO/PER

 

 

JP MORGAN CHASE BANK, N.A.’S HEARING ON DEMURRER TO PLAINTIFF’S COMPLAINt

 

·         OFF-CALENDAR. Plaintiff Ramil Ocbena having filed, on February 6, 2018, a Request For Dismissal Without Prejudice as to the moving Defendant J.P. Morgan Chase Natl Corp Services, Inc., this Demurrer is now Moot and the matter is Ordered Off-Calendar.

 



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CIV538047     JINAN FENG VS. JOANNA CHANG

 

 

JINAN FENG                             Pro/PER

JOANNA CHANG                           Pro/PER

 

 

JOANNA CHANG’S MOTION FOR SUMMARY ADJUDICATION AGAINST PLAINTIFF JINAN FENG’S COMPLAINT FOR BREACH OF CONTRACT

 

·         DENIED. Defendant Joanna Chang (aka Zuan Feng)’s Motion For Summary Adjudication as to the First Cause of Action for Breach of Contract is Denied on account of her failure to carry her burden that there is no triable issue.

 

·         This is a case arising out of an alleged wrongful appropriation of assets of a family trust allegedly worth over US-$800,000, a building located in Shanghai, China. It appears that the moving Defendant Joanna Chang is one of three family members -- Ms. Chang and her two siblings -- who are trust beneficiaries in the wake of their parents’ deaths. Plaintiff Jinan Feng claims that Ms Chang wrongfully sold the property and has held the sale proceeds for her own exclusive use.

 

·         Suit is brought by three causes of action: Breach of Contract, Stolen Asset, and Breach of Fiduciary Duty. The pertinent Contract is an agreement, apparently ancillary to the family trust itself, in which the three surviving family members purport to agree to a specific plan (that is set forth in the agreement) for joint management or the family trust assets. 

 

·         A defendant moving for summary adjudication of issues has the initial burden to show that one or more elements of the cause of action “cannot be established or that there is a complete defense to the cause of action.” (Code of Civ. Proc. sect.  437c, subd. (p)(2).) Defendant’s motion fails to meet this burden.

 

·         The only material argument in support of the motion is that not all parties to the agreement signed it. However, missing signatures do not render an agreement unenforceable against parties who signed the agreement, unless the agreement expressly provides that all signatures are a condition precedent of performance.

 

·         A contract is invalid if not signed by all parties “only when it is shown . . . that the contract was not intended to be complete until all parties had signed. Conversely, in the absence of a showing that the contract is not intended to be complete until signed by all parties, the parties who did sign will be bound.” (Angell v. Rowlands (1978) 85 Cal. App. 3d 536, 542.) Signatories resisting enforcement have the burden to establish that the signatures of all parties were contemplated as being a condition precedent to the validity of the contract.” (Rael v. Davis (2008) 166 Cal. App. 4th 1608, 1618.) Defendant’s motion fails to meet that burden.

 

·         Nothing on the face of the agreement or in any evidence accompanying the motion provides or suggests that all three signatures are required in order for the contract to be enforceable. Even if not all signatures are present, the agreement is still enforceable against those who did sign. (Angell, supra, at 541.)  Here, moving party Defendant Chang signed the agreement. The absence of the third party’s signature does not render the agreement unenforceable against Defendant Chang.

 

·         If the Tentative Ruling is uncontested, the Tentative Ruling shall stand as the Court’s ruling herein. Plaintiff’s Counsel to prepare the necessary form of Order consistent with the ruling, and give Notice of Entry as required by law. Form of Order to be submitted directly to the Hon. Gerald J. Buchwald, Dept. 10.

 



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18-UDL-00044     RONDALD S. YOUNG vs. JOHNNY LEE, et al.

 

 

RONDALD S. YOUNG                       Sean P. Riley

JOHNNY LEE                             ERROL J. ZSHORNACK

 

 

JOHNNY AND JOSEPFINA LEE’S MOTION TO QUASH COMPLAINT

 

·         GRANTED. Defendants JOHNNY LEE and JOSEFINA LEE’s unopposed Motion to Quash Summons and Complaint is GRANTED. 

 

·         Plaintiff RONALD YOUNG filed this unlawful detainer action to recover possession of the premises located at 2609 Wexford Avenue, South San Francisco, CA.  Defendants JOHNNY LEE and JOSEFINA LEE were served with a 3-day Notice to Pay Rent or Quit on January 6, 2018.  Defendants failed to comply and remain in possession of the premises.  As of February 15, 2018, Plaintiff has not yet filed a proof of service of Summons and Complaint as to either Defendant.

 

 

·         An automatic bankruptcy stay pursuant to 11 U.S. Code Section 362 is currently in effect, due to Defendants’ January 2, 2018 filing for Chapter 7 bankruptcy with the U.S. Bankruptcy Court for the Northern District of California, Case No. 18-30003.  (Decl. Johnny Lee, ¶ 3.)

 

·         The filing of Defendants’ bankruptcy petition on January 2, 2018 triggered an automatic stay of the commencement or continuation of any legal proceedings against them.  Once a defendant files a motion to quash, the burden is on the Plaintiff to prove by a preponderance of the evidence the validity of the service and the Court’s jurisdiction over the defendant.  Bolkiah v. Superior Court (1999) 74 Cal.App.4th 984, 991.  Plaintiff has filed no opposition and has not done so.

 

·         If the Tentative Ruling is uncontested, the Tentative Ruling shall stand as the Court’s ruling herein. Defense Counsel to prepare the necessary form of Order consistent with the ruling, and give Notice of Entry as required by law. Form of Order to be submitted directly to the Hon. Gerald J. Buchwald, Dept. 10.

 

 

 

 

 

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18-UDL-00037     RONDALD S. YOUNG vs. JOHNNY LEE, et al.

 

 

JUDE THADDEUS BORG, ATTY-IN-FACT                 JEROD HENDRICKSON

BLAKE aNTHONY ESQUEDA                            PRO/PER

 

 

PLAINTIFF’S MOTION TO COMPEL RESPONSES TO DISCOVERY

 

  • GRANTED. Plaintiff Jude Thaddeus Borg’s unopposed Motions to Compel Discovery Responses from Defendants Blake Esqueda and Denise Haver are Granted.

 

·         This is a residential unlawful detainer action based on a sixty-day notice to quit.  Plaintiff Borg moves to compel Defendants to respond to written discovery. 

 

·         On January 30, 2018, Plaintiff served Defendants with form interrogatories, and requests for production of documents.    To date, Defendants have failed/refused to respond.

 

 

·         Each Defendant shall provide verified responses, without objection, to the interrogatories and requests for production of documents within 5 days. The request for sanctions is also granted pursuant to CCP §§2030.290(c), and 2031.300(c). Each Defendant shall pay Plaintiff $147.50 within 5 days. 

·         If the Tentative Ruling is uncontested, the Tentative Ruling shall stand as the Court’s ruling herein. Defense Counsel to prepare the necessary form of Order consistent with the ruling, and give Notice of Entry as required by law. Form of Order to be submitted directly to the Hon. Gerald J. Buchwald, Dept. 10.

 

___________________________________________________________________


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18-UDL-00037     RONDALD S. YOUNG vs. JOHNNY LEE, et al.

 

 

JUDE THADDEUS BORG, ATTY-IN-FACT                 JEROD HENDRICKSON

DENISE HAVER                                    PRO/PER

 

 

PLAINTIFF’S MOTION TO COMPEL RESPONSES TO DISCOVERY

 

  • GRANTED. Plaintiff Jude Thaddeus Borg’s unopposed Motions to Compel Discovery Responses from Defendants Blake Esqueda and Denise Haver are Granted.

 

·         This is a residential unlawful detainer action based on a sixty-day notice to quit.  Plaintiff Borg moves to compel Defendants to respond to written discovery. 

 

·         On January 30, 2018, Plaintiff served Defendants with form interrogatories, and requests for production of documents.    To date, Defendants have failed/refused to respond.

 

 

·         Each Defendant shall provide verified responses, without objection, to the interrogatories and requests for production of documents within 5 days. The request for sanctions is also granted pursuant to CCP §§2030.290(c), and 2031.300(c). Each Defendant shall pay Plaintiff $147.50 within 5 days. 

·         If the Tentative Ruling is uncontested, the Tentative Ruling shall stand as the Court’s ruling herein. Defense Counsel to prepare the necessary form of Order consistent with the ruling, and give Notice of Entry as required by law. Form of Order to be submitted directly to the Hon. Gerald J. Buchwald, Dept. 10.

 


 

 

 

 

 


POSTED:  3:00 PM

 

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