September 18, 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

 

SEPTEMBER 16, 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 521606       JOSE ALBERTO DURAN VS. NICHOLAS A. CRISAFI

 

 

JOSE ALBERTO DURAN                              CHRISTOPHER WIMMER

NICHOLAS A. CRISAFI                             I. D. GOODMAN

 

 

MOTION TO AMEND THE COMPLAINT BY JOSE ALBERTO DURAN

 

 

·         Plaintiff’s Motion for Leave to Amend the Complaint is GRANTED pursuant to CCP § 473(a).  “The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified.”  Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.  The amended complaint is based on the same operative facts as the initial complaint and trial is still over a month away.  Further, Plaintiff has provided reasonable excuses for the delay in filing the motion for leave to amend.

 

·         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 525758       N.A. SALES COMPANY, INC. VS. HAE-SUK LEE, et AL.

 

 

N.A. SALES COMPANY, INC.                        BRIAN H. SONG

HAE-SUK LEE

 

 

MOTION FOR TERMINATING SANCTION AGAINST HYEONG GEON LEE AND IMPOSING MONETARY SANCTION AGAINST HYEONG GEON LEE BY N.A. SALES COMPANY, INC.

 

·         N.A. Sale’s Company, Inc.’s motion for terminating sanctions is DENIED.  The omission of the Dublin and San Ramon house transactions, regardless of the source of funds, does not reasonably fit into the definition of “business relation,” which Interrogatories 3 and 4 defined as “business partnership, joint venture, association, affiliation investment, cooperation, contract, employment, similar business arrangements.”  Failure to disclose these transactions was not a failure to comply with the Court’s order.

 

·         The omission of “ISIF Madfish, Inc.” is not a failure to comply with the Court’s order.  Although Defendant’s name appears as CEO and Director on the corporation’s Statement of Information, the document does not demonstrate a “business relation” between Defendant and Moon Joo Lee.  The moving papers also offer no evidence to establish a business relation. 

 

·         Plaintiff has not shown that Defendant’s deleting emails was a failure to comply with the Court’s Order.  In Doppes v Bentley Motors, Inc. (2009) 174 Cal App.4th 967, cited by Plaintiff, the witness had deleted emails while the litigation was ongoing.  Plaintiff makes no showing of when Defendant deleted the emails in relation to this action.  The destruction of evidence in Williams v Russ (2008) 167 Cal App.4th 1215, 1223, cited by Plaintiff (destruction of records after witness stopped paying storage unit rent), is dissimilar to the deletion of emails and does not support the present motion.

 

·         The motion lacks merit and Plaintiff lacked substantial justification in filing it. Defendant’s request for sanctions is granted in the amount of $650.00.  Plaintiff’s Counsel Law Office of Brian H. Song shall pay $650.00 to Defendant Hyeong Geon Lee no later than September 30, 2014.

 

·         If the tentative ruling is uncontested, it shall become the order of the Court.  Thereafter, counsel for Plaintiff shall prepare for the Court’s signature a written order consistent with the above ruling, 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.

 

 

MOTION FOR ORDER COMPELLING RESPONSE TO DEMAND FOR PRODUCTION AND SANCTIONS BY N.A. SALES COMPANY, INC.

 

·         See tentative ruling below.

 

 

MOTION TO COMPEL RESPONSE TO WRITTEN INTERROGATORIES AND SANCTIONS BY N.A. SALES COMPANY, INC.

 

·         See tentative ruling below.

 

 

MOTION FOR ORDER THAT MATTERS IN REQUEST FOR ADMISSIONS BE DEEMED ADMITTED AND IMPOSING MONETARY SANCTION BY N.A. SALES COMPANY, INC.

 

·         All three of the motions brought by N.A. Sales Company, Inc. are denied for lack of service.  Plaintiff served the moving papers on Attorney Kenneth Bauer.  Defendant Soon Bok Park has not made an appearance in this action yet.  Her motion to quash, heard May 15, 2014, was denied and constituted only a special appearance.  Therefore, Mr. Bauer is not her attorney of record.  Service by mail to Attorney Bauer was ineffective service on Defendant Park.

 

·         If the tentative ruling is uncontested, it shall become the order of the Court.  Thereafter, counsel for Plaintiff shall prepare for the Court’s signature a written order consistent with the above ruling, 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

3

CIV 526017       WILLIAM FIERCE, ET AL. VS. WADE LESCHYN, ET AL.

 

 

WILLIAM FARRIS                                  PHILLIP B. ROSE

WADE LESCHYN                                    MATTHEW D. ZUMSTEIN

 

 

DEMURRER TO SECOnd Amended COMPLAINT of FARRIS BY WADE LESCHYN AND DEBRA LESCHYN

 

·         Defendants’ Request for Judicial Notice is GRANTED pursuant to Evidence Code 452(d), (h).

 

·         Defendants’ demurrer to Plaintiff’s Second Amended Complaint is OVERRULED as to the 4th C/A for negligent infliction of emotional distress.  This cause of action is sufficiently pled.

 

·         The demurrer is SUSTAINED as to each of the following causes of action WITH LEAVE TO AMEND:

 

·         The 5th C/A for fraud and deceit fails for lack of specificity.  Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal App 4th 858.  The second amended complaint fails to allege any particular facts such as the who, what, when, or where of the alleged fraudulent conduct.

·         The 10th C/A for defamation fails for vagueness.  It fails to identify whether the allegedly defamatory statements were made verbally or in writing and fails to allege facts sufficient to constitute a cause of action.  Gilbert v. Sykes (2007) 147 Cal App 4th 13.  It also fails to allege that the allegedly defamatory communication was not privileged.  Price v. Operating Engineers Local Union No. 3 (2011) 195 Cal App 4th 962.

·         The 14th C/A for elder abuse fails as the cause of action is uncertain.  It is unclear what category plaintiffs are pleading.  Plaintiffs appear to be pleading “neglect” but neglect only applies to persons having the care or custody of an elder or a dependent adult.  There is no allegation the plaintiffs were ever in the care or custody of defendant.  Welfare & Institutions Code 15610.57.

·         The demurrer is SUSTAINED as to each of the following causes of action WITHOUT LEAVE TO AMEND:

·         The 11th C/A for unjust enrichment fails as there is no separate cause of action for unjust enrichment.  See Durell v. Sharp Healthcare (2010) 183 Cal App 4th 1350.

·         The 12th C/A for Civil RICO fails as it is not pled with the required specificity.  Edwards v. Marin Park, Inc. (2004) 356 F.3d 1058, 1066.  Additionally, a RICO claim must also contain some nexus to interstate commerce. 28 USC 1962(a) - (c).  Plaintiffs do not make any allegation of a nexus with interstate commerce.

 

 

MOTION TO STRIKE BY WADE LESCHYN AND DEBRA LESCHYN

 

·         Defendants’ Motion to Strike is GRANTED as to punitive damages, WITH LEAVE TO AMEND.  Plaintiffs have failed to adequately plead a request for punitive damages.  Plaintiffs must allege specific facts showing that defendant’s conduct was oppressive, fraudulent or malicious.  See Smith v. Superior Court (1992) 10 Cal App 4th 1033, 1041-42.  As to attorney’s fees, the motion is DENIED.  Plaintiff has sufficiently established a statutory basis for attorney’s fees pursuant to Civil Code § 1942.5(g).

·         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

4

CIV 528623       DAVID G. ARELLA VS. WELLS FARGO BANK, N.A., ET AL.

 

 

DAVID G. ARELLA                                 LILIA BULGUCHEVA

WELLS FARGO BANK, N.A.                          CHANEL L. OLDHAM

 

 

DEMURRER TO COMPLAINT of ARELLA BY MOAB INVESTMENT GROUP, LLC

 

 

·         This matter is moot.  Plaintiff filed an amended complaint on September 11th.

 

 

_____________________________________________________________________

 

9:00

5

CLJ 210017       SHORELINE ASSETS GROUP, LLC VS. ADAN ALVARADO MAYEN

 

 

SHORELINE ASSETS GROUP, LLC                     TODD ROTHBARD

ADAN ALVARADO MAYEN                             PRO/PER

 

 

DEMURRER TO COMPLAINT (UNLAWFUL DETAINER) of SHORELINE ASSETS GROUP, LLC BY ADAN ALVARADO MAYEN

 

 

·         Demurrers are disfavored in unlawful detainer proceedings.  Case law holds that a motion to quash and not a demurrer is the only proper procedure to test whether a complaint states a cause of action for unlawful detainer.  Delta Imports, Inc. v. Municipal Court (1983) 146 Cal App 3rd 1033, 1036.  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. 3rd 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 defects do not appear on the face of the complaint.  This is an unlawful detainer that has arisen following a foreclosure sale of the property, so it is properly brought pursuant to CCP 1161a.  A UD based on a sale of the property under CCP 1161a, requires the following allegations: a) a sale in accordance with Civil Code 2924 under a power of sale contained in the deed of trust and the title must be duly perfected; b) service of a valid notice to quit and c) the defendant failed to vacate within the notice period.  CCP 1161a; Evans v. Superior Court (1977) 67 Cal App 3d 162.  The complaint sufficiently alleges that that the property was sold to plaintiff at a foreclosure sale in compliance with Civil Code 2924 et seq under power of sale contained in the deed of trust; that the defendant was served with a 3-day notice to vacate and that more than 3 days have elapsed but defendant failed to deliver possession and continues in possession.  See complaint Paragraphs IV, V, VI and VII.

 

·         Defendant shall file an answer to the complaint by 2:00 PM on September 22, 2014.

 

·         Demurring 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

6

CLJ 520026       EXPRESS HEATING & AIR CONDITIONING VS. MCT

                   DEVELOPMENT & CONSTRUCTION

 

 

EXPRESS HEATING & AIR CONDITIONING              JULIE D. MCELROY

MCT DEVELOPMENT & CONSTRUCTION                  TIMOTHY B. MCCORMICK

 

 

MOTION FOR DETERMINATION OF GOOD FAITH SETTLEMENT BY EXPRESS HEATING & AIR CONDITIONING

 

 

·         Plaintiff/Cross-Defendant EXPRESS HEATING & AIR CONDITIONING’s unopposed Motion for Good Faith Settlement is GRANTED pursuant to CCP § 877.6.  Plaintiff/Cross-Defendant Express Heating & Air Conditioning has made a sufficient showing that the settlement was made in good faith under the Tech-Bilt factors.  Tech-Bilt, Inc. v. Woodward-Clyde Associates (1985) 38 Cal.3d 488, 502. 

 

·         Pursuant to CCP § 877.6(c) this settlement bars any pending or future claims by alleged joint tortfeasors or co-obligors against the settling tortfeasor [Express Heating & Air Conditioning] for equitable contribution or partial, comparative or implied indemnity based on comparative negligence or comparative fault.  

 

·         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

7

CLJ 526485       UNIFUND CCR, LLC VS. JENNY B. NAJERA

 

 

UNIFUND CCR, LLC                                KENNETH J. MIELE

JENNY B. NAJERA                                 PRO/PER

 

 

MOTION FOR JUDGMENT ON THE PLEADINGS FILED BY UNIFUND CCR, LLC

 

 

·         Plaintiff UNIFUND CCR, LLC’s Request for Judicial Notice is GRANTED pursuant to Cal. Evid. Code § 452(d).

 

·         Plaintiff UNIFUND CCR, LLC’s unopposed Motion for Judgment on the Pleadings is GRANTED pursuant to CCP § 438(c)(1)(A).  Defendant has admitted the truth of the allegations in Plaintiff’s Complaint by the Court’s July 18, 2014 order.  Judgment for Plaintiff in the amount of $1,932.25.

 

·         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

CLJ 529678       DENNIS L. FAORO VS. BRUCE G. NORTON, ET AL.

 

 

DENNIS L. FAORO                                 DENNIS L. FAORO

BRUCE G. NORTON

 

 

PETITION FOR ORDER CONFIRMING ARBITRATION AWARD BY DENNIS L. FAORO

 

 

·         This matter is moot.  The motion was withdrawn by plaintiff Dennis Faoro on September 9, 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 JOHN L. GRANDSAERT

Department 11

 

400 County Center, Redwood City

Courtroom 2D

 

SEPTEMBER 16, 2014

 

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 529496       JETBLUE AIRWAYS CORPORATION VS. COUNTY OF SAN MATEO,

                   ET AL.

 

 

JETBLUE AIRWAYS CORPORATION                     C. STEPHEN DAVIS

COUNTY OF SAN MATEO

 

 

COMPLEX CASE STATUS CONFERENCE

 

 

·         This matter is stayed pursuant to the Stipulation for Stay Pending Coordination Proceedings and Order Thereon, filed on 09/12/14.  

 

_____________________________________________________________________

 

9:00

2

CIV 529497       UNITED AIRLINES, INC. VS. COUNTY OF SAN MATEO

 

 

UNITED AIRLINES, INC.                           C. STEPHEN DAVIS

COUNTY OF SAN MATEO

 

 

COMPLEX CASE STATUS CONFERENCE

 

 

·         This matter is stayed pursuant to the Stipulation for Stay Pending Coordination Proceedings and Order Thereon, filed on 09/12/14. 

 

_____________________________________________________________________

 

9:00

3

CIV 529498       UNITED AIRLINES, INC. VS. COUNTY OF SAN MATEO

 

 

UNITED AIRLINES, INC.                           C. STEPHEN DAVIS

COUNTY OF SAN MATEO

 

 

COMPLEX CASE STATUS CONFERENCE

 

 

·         This matter is stayed pursuant to the Stipulation for Stay Pending Coordination Proceedings and Order Thereon, filed on 09/12/14.  

 


 

 

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