August 30, 2015
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 susan irene etezadi

Department 18

 

400 County Center, Redwood City

Courtroom 2M

 

Tuesday, August 25, 2015

 

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.

 

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 526642       SOLOMON TSAI, ET AL. VS. BETTY P.P. HSU, ET AL.

 

 

SOLOMON TSAI                          DONALD J. PUTTERMAN

BETTY P.P. HSU                        CHARMAINE G. YU

 

 

MOTION FOR SANCTIONS AGAINST JONATHAN R. BASS, CHARMAINE G. YU, AND COBLENTZ PATCH DUFFY & BASS LLP PURSUANT TO CCP 128.7 BY SOLOMON TSAI, KAREN LU

 

 

 

Plaintiff/Cross-Defendant Solomon Tsai’s anti-SLAPP motion is DENIED.  Tsai has failed to meet his burden of showing that the cross-complaint arises from or is based upon his filing of the Second Amended Complaint.  The gravamen of the cross-complaint is the inclusion of the option agreement in the loan and Tsai’s attempts to enforce the option agreement.  Tsai sent a letter attempting to exercise the options prior to amending his complaint.  The cross-complaint asserts it seeks recovery by reason of cross-defendants’ violations of California’s usury law.  The filing of the 2nd amended complaint is incidental to the claim that Tsai is seeking to enforce the option. Martinez v. Metabolife Int’l (2003) 113 Cal. App. 4th 181, 188.  Because Tsai has not met his burden as to the first prong of the anti-SLAPP test, the burden does not shift to Hsu to establish a probability that she will prevail on the merits.  City of Cotati v. Cashman (2002) 29 Calories 4th 69, 80-81.  Hsu’s request, in her opposition, for attorney’s fees is denied.

 

 

Plaintiff/Cross-Defendant Solomon Tsai’s request for judicial notice in connection with his Demurrer to Hsu’s cross-complaint is GRANTED.  The demurrer is OVER-RULED.  Under CC §1916-2, Hsu would be entitled to recover any interest paid, usurious or not, if the transaction were found to be usurious.  Under CC §1916-3(a) Hsu would be entitled to treble damages on any usurious interest she actually paid. Moore v. Russell (1931) 114 Cal.App 634, 642; Heald v. Friss-Hansen (1959) 52 Cal 2nd 839; Mission Hills Dev. Corp. v. W. Small Busl. Inv. Co. (1968) 260 Cal.App. 2d 923. Hsu has sufficiently stated a claim for usury.  She has alleged that the option rendered the interest rate on the loan usurious and that she paid cash interest under the loan.  As to the 2nd cause of action for breach of contract, Hsu has alleged that Tsai breached the agreement by seeking to enforce the option and demanding a payment that exceeded the limit imposed by applicable law.

 

 

Plaintiff/Cross-Defendant Solomon Tsai’s motion for sanctions pursuant to CCP §128.7 is DENIED.  The court has denied Tsai’s anti-SLAPP motion and overruled his demurrer to the cross-complaint.

 

 

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 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 Susan Irene Etezadi, Department 18.

 

 

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9:00

2

CIV 531853       BANC OF AMERICA LEASING & CAPITAL, LLC VS. IQWARE,

                   INC, ET AL.

 

 

BANC OF AMERICA LEASING & CAPITAL, LLC KEVIN P. WHITEFORD

IQWARE, INC.                          TERESA C. CHOW

 

 

HEARING ON APPLICATION FOR RIGHT TO ATTACH ORDER/WRIT OF ATTACHMENT AS TO IQWARE, INC. FILED BY BANC OF AMERICA LEASING & CAPITAL, LLC

 

 

Plaintiff BANC OF AMERICA LEASING & CAPITAL, LLC’S Application for Right to Attach Order and Order for Issuance of Writ of Attachment is CONTINUED to October 26, 2015.

 

 

In the interim, the Court enters a temporary protective order as to Defendants IQWARE, INC. and DONALD SEDDON, as follows:

 

 

  • No accounts receivable or other assets of IQWARE, INC. are to be transferred, except in the ordinary course of business;
  • No dividends, payments, or other compensation packages are to be paid to officers or employees of IQWARE, INC., except for regular salary payments;
  • No funds in existing bank accounts of IQWARE, INC. will be transferred, except as necessary in the ordinary course of business;
  • IQWARE, INC. is to provide accounting reports to the Court of any expenditures and disbursements outside of the ordinary course of business to ensure the propriety of IQWARE’s business operations.

 

 

Plaintiff is ordered to provide payment information to Defendants no later than August 28, 2015, including a person designated by Plaintiff to accept payments, a mailing address to which IQWARE may send payments, and wire transfer information which IQWARE may use to make payments.

 

 

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 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 Susan Irene Etezadi, Department 18.

 

 

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9:00

3

CIV 533468       WALEED MASHAL, ET AL. VS. COUNTY OF SAN MATEO, ET AL.

 

 

WALEED MASHAL                         CHARLES C. KELLY

COUNTY OF SAN MATEO                   DAVID A. LEVY

 

 

DEMURRER TO COMPLAINT of MASHAL BY COUNTY OF SAN MATEO, SAN MATEO COUNTY SHERIFF'S DEPARTMENT AND SAN MATEO MEDICAL CENTER

 

 

Demurrer to the first cause of action (negligence) is SUSTAINED WITH LEAVE TO AMEND. A public entity is not liable for "injury proximately caused by a patient of a mental institution.'' (Gov’t Code § 854.8 (a)(1).) Nor is a public entity liable for "[a]n injury to an inpatient of a mental institution.” (Gov’t Code § 854.8(a)(2), (3).) The Complaint admits that decedent was a mental health patient at a psychiatric unit of SMMC and that his injury/death occurred during that time. (Complaint, ¶¶ 12, 16.)  Immunity attaches unless the complaint alleges facts showing an exception. Plaintiffs’ attempt to plead the exception set forth in Government Code section 855 is deficient because it fails to identify any statute or regulation with which Defendant County failed to comply.

 

 

Plaintiffs also fail to plead facts supporting a special relationship that would exempt Defendants from immunity. The cases of Vistica and Klein, relied on by Plaintiffs, concerned a special relationship that arose from the hospital/nursing home’s awareness of the patient’s risk of suicide or self-harm.  (Vistica v. Presbyterian Hospital (1967) 67 Cal 2d 465 [“where the hospital has notice or knowledge of facts from which it might reasonably be concluded that a patient would be likely to harm himself or others unless preclusive measures were taken, then the hospital must use reasonable care in the circumstances to prevent such harm”]; Klein v. BIA Hotel Corp. (1996) 41 Cal. App. 4th 1133, 1142 [“defendant would also have the duty to exercise reasonable care to prevent decedent from harming herself if it had knowledge or notice of facts from which it might reasonably conclude that decedent was likely to harm herself”].)  The Complaint alleges no such facts pertaining to decedent in this case. 

 

 

Demurrer is SUSTAINED as to the second cause of action (dangerous condition) WITH LEAVE TO AMEND. A dangerous condition is one that “creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used." (Gov. Code § 830) The complaint contains no allegation explaining how the physical set up could cause a methadone overdose “when such property . . . is used with due care.” Plaintiffs plead no causal connection between a condition of the  psychiatric ward and plaintiffs' decedent' s ingestion of methadone.

 

 

The Complaint alleges that the physical layout of the facility allowed methadone to be smuggled in and given to decedent. But when the property condition merely enhances the chance of wrongful activity, it is the danger of harm from criminal activity of third persons that is the issue. (See, e.g., Zelig v County of Los Angeles (2002) 27 Cal 4th 1112, 1137.) The Complaint does not allege that Defendant facility allowed or encouraged third persons to cause injury to decedent; it does not even allege that a third person caused injury to decedent. Even if the facility’s layout permitted methadone to be given to decedent surreptitiously, the physical layout did not cause an overdose.

 

 

Plaintiff is GRANTED leave of court to file and serve an amended complaint no later than September 9, 2015. Any amendment addressing Government Code section 855 shall identify a specific statute or regulation with which Defendant failed to comply.  

 

 

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Defendant 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. 

 

 

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9:00

4

CIV 533490       MASKAY INC. VS. BEN JOHNSON

 

 

MASKAY INC.                           HERMAN FRANCK

BEN JOHNSON                           NICOLAS A. FLEGEL

 

 

DEMURRER TO 1st Amended COMPLAINT of MASKAY INC. BY BEN JOHNSON

 

 

The Demurrer as to the First Cause of Action (Misappropriation of Trade Secret) is OVERRULED.

 

 

The Demurrer as to the Third Cause of Action (Breach of Fiduciary Duty) is SUSTAINED WITH LEAVE TO AMEND so that Plaintiff can allege sufficient facts to demonstrate a fiduciary relationship between Plaintiff and Defendant.

 

 

Plaintiff’s amended pleading shall be filed and served within 15 days after service of Notice of Entry of Order.

 

 

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 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 Susan Irene Etezadi, Department 18.

 

 

_____________________________________________________________________


9:00

5

CLJ 519919       UNIFUND CCR, LLC VS. ROBERT GUMINA

 

 

UNIFUND CCR, LLC                      KENNETH J. MIELE

ROBERT GUMINA

 

 

MOTION TO SET ASIDE DEFAULT JUDGMENT AND TO QUASH SERVICE OF SUMMONS BY ROBERT GUMINA

 

 

Defendant Robert Gumina’s Motion to Set Aside Default and Default Judgment and to Quash Service of Summons is DENIED without prejudice. Defendant has failed to comply with CCP § 473.5(b), “The [moving] party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.” No proposed answer, motion or other pleading was filed with the motion.

 

 

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 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 Susan Irene Etezadi, Department 18.

 

 

_____________________________________________________________________


9:00

6

CLJ 529500       IN RE: $1,323.00

 

 

DISTRICT ATTORNEY'S OFFICE            DISTRICT ATTORNEY'S OFFICE

EFRAIN SANDOVAL                       PRO/PER

 

 

MOTION FOR SANCTIONS AND TO COMPEL ANSWERS TO INTERROGATORIES BY DISTRICT ATTORNEY'S OFFICE

 

The request for sanctions is GRANTED.  Interested party shall pay plaintiff $350 within 10 days of notice of entry of the court’s order. 

 

 

MOTION FOR ORDER THAT REQUESTS FOR ADMISSIONS BE DEEMED ADMITTED AND FOR MONETARY SANCTIONS BY DISTRICT ATTORNEY'S OFFICE

 

 

Motion is GRANTED. Interested party Efrain Sandoval shall provide verified responses to the interrogatories, without objection, within 10 days of notice of entry of the court’s order.  The true genuineness of any documents and the truth of any matters specified in the requests for admission are deemed admitted. 

 

 

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 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 Susan Irene Etezadi, Department 18.

 

 

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9:00

7

CLJ 530984       JOSE N. NARVAEZ VS. PEDRO M. PAPIO, JR, ET AL.

 

 

JOSE N. NARVAEZ                       ANDREW H. LANGE

PEDRO M. PAPIO JR.                    MARIE G. QUASHNOCK

 

 

DEMURRER TO CROSS-COMPLAINT of PEDRO M. PAPIO BY JOSE N. NARVAEZ

 

 

On July 29, 2015, Defendants filed a Request for Dismissal of their Cross-Complaint without prejudice. Therefore, this Motion is moot.

_____________________________________________________________________


9:00

8

CLJ 532714       MIDLAND FUNDING LLC VS. ROSA FUENTES

 

 

MIDLAND FUNDING LLC                       KAREN ETSELL LUSIS

ROSA FUENTES                             PRO/PER

 

 

MOTION FOR JUDGMENT ON PLEADINGS BY MIDLAND FUNDING LLC

 

 

Plaintiff Midland Funding, LLC’s unopposed Motion for Judgment on the Pleadings is GRANTED. Under CCP § 438(c)(1)(A), a motion for judgment on the pleadings can be made where the complaint states sufficient facts to constitute a cause of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint.  Here, the Defendant’s answer does not contain a denial of any of the allegations of Plaintiff’s unverified complaint. Nor has defendant offered any affirmative defenses or exceptions. Judgment for plaintiff in the amount of $10,186.24 plus costs in the amount of $525.00 for a judgment of $10,711.24 is granted.

 

 

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 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 Susan Irene Etezadi, Department 18.

 

 

_____________________________________________________________________


 


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, August 25, 2015

 

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

1

CIV 530203       XUE YAN LIANG VS. YAT SING RESTAURANT, ET AL.

 

 

XUE YAN LIANG                         PETER CHAO

YAT SING RESTAURANT                   PETER L. KUTRUBES

 

 

MOTION TO CONTINUE MANDATORY SETTLEMENT CONFERENCE AND TRIAL BY MILLIE KO

 

 

·         For good cause shown, Defendant Millie Ko’s Motion to Continue Mandatory Settlement Conference and Trial is GRANTED. The existing trial date and mandatory settlement conference are vacated. Jury trial resets to December 7, 2015 and mandatory settlement conference resets to Friday, November 20, 2015 at 1:30 p.m. in Dept. 21. Discovery remains open until 30 days before the new trial date.  Defendant Mille Ko to provide notice to all parties.

 

 

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POSTED:  3:00 PM

 

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