July 4, 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 JOSEPH C. SCOTT

Department 25

 

400 County Center, Redwood City

Courtroom 2G

 

Tuesday, June 30, 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.

 

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 209048       GARNIK DAVIDIAN VS. OSAMA ABBOUSHI

 

 

GARNIK DAVIDIAN                       WILLIAM E. GILG

OSAMA ABBOUSHI                        PAUL J. SMOOT

 

 

MOTION FOR LEAVE TO FILE SECOND-AMENDED COMPLAINT AND REQUEST FOR JUDICIAL NOTICE BY GARNIK DAVIDIAN

 

 

  • Plaintiff’s Request for Judicial Notice is granted pursuant to Evidence Code §452(d).

 

 

  • The Motion to File a Second Amended Complaint by Plaintiff is GRANTED pursuant to CCP §473 and the liberal public policy of permitting amendments to complaints. [Atkinson v. Elk Corp. (2003) 109 Cal App 4th 739, 761].

 

 

  • Moving party is granted leave to file and serve a 2nd Amended Complaint, consistent with the proposed 2nd Amended Complaint, until July 14, 2015.

 

 

  • 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 Joseph C. Scott, Department 25.

 

 

_____________________________________________________________________


9:00

2

CIV 481038       CANDACE S. GRAHAM VS. NET EQUITY ASSOCIATES, INC., ET

                   AL.

 

 

CANDACE S. GRAHAM                     BRADFORD F. GINDER

NET EQUITY ASSOCIATES, INC.

 

 

MOTION FOR ORDER DETERMINING GOOD FAITH SETTLEMENT BY CANDACE S. GRAHAM

 

 

  • Plaintiff’s Motion for Order Determining Good Faith Settlement is GRANTED.

 

  • In Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal. 3d 488, 499, the court set forth factors to consider in determining whether a settlement is in good faith under CCP §877.6:  a) a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability; b)the amount paid in settlement; c) the allocation of settlement proceeds among plaintiffs;d) a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial; e) the financial conditions and insurance policy limits of settling defendants; f)the existence of collusion, fraud, or tortious conduct aimed to injure the interests of non-settling defendants.

    

 

  • The Court finds that moving party has met her burden.  North American Title, the party contesting the settlement, does not appear to have any issues concerning the settlement amount.  The focus of its argument is the allocation between the two claims asserted against the settling defendants alleging that the escrow related damages are greater than asserted by Plaintiff.  Settling defendants have sole liability for the securities losses and joint liability for the losses related to the escrow. The allocation appears to be supported by the evidence in support of the motion.

 

.

  • 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 Joseph C Scott, Department 25.

 

 

_____________________________________________________________________


9:00

3

CIV 498933       STEVEN G. HILL VS. ROGER D. HILL, ET AL.

 

 

STEVEN G. HILL                        PRO/PER

ROGER D. HILL                         JENIFER K. GARDELLA

 

 

MOTION TO ENFORCE SETTLEMENT PURSUANT TO CCP 664.6 BY SARAH C. ZIGLER

 

 

  • The Motion to Enforce the Settlement Agreement pursuant to CCP §664.6 by interested party Sarah Zigler is GRANTED. The requirements of CCP §664.6 have been satisfied and the terms of the settlement apply to both Sarah Zigler individually and to Zyco, Inc. as intended third party beneficiaries of the settlement.

 

 

  • 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 Joseph C. Scott, Department 25.

 

 

_____________________________________________________________________


9:00

4

CIV 526109       VICTOR ALBAUM VS. SUTTER PENINSULA HOSPITAL

 

 

VICTOR ALBAUM                         JUDIANNE JAFFE

SUTTER PENINSULA HOSPITAL             MICHAEL J. GARVIN

 

 

MOTION FOR SUMMARY JUDGMENT AS TO COMPLAINT of VICTOR ALBAUM FILED BY SUTTER PENINSULA HOSPITAL

 

 

·         Moot resulting from the Order signed on June 11, 2015 granting summary judgment to Mill-Peninsula Health Services erroneously sued as Sutter Peninsular (sic) Hospital.

 

 

_____________________________________________________________________


9:00

5

CIV 528251       DAVID LACAGNINA VS. COMPREHEND SYSTEMS, INC. ET AL.

 

 

DAVID LACAGNINA                       STEPHEN F. HENRY

COMPREHEND SYSTEMS, INC.              MICHAEL A. LAURENSON

 

 

MOTION TO COMPEL PRODUCTION OF DOCUMENTS BY DAVID LACAGNINA

 

 

·         Appear.

 

 

_____________________________________________________________________


9:00

6

CIV 529347       IRIS LAI HUNG TAM VS. ENRIQUE CHAN, ET AL.

 

 

IRIS LAI HUNG TAM                     PRO/PER

ENRIQUE CHAN                          JEFFREY C. TSU

 

 

MOTION FOR ORDER GRANTING EXPUNGEMENT OF LIS PENDENS BY ENRIQUE CHAN

 

 

 

  • The unopposed Motion To Expunge Lis Pendens by Defendant Enrique Chan is GRANTED pursuant to CCP §405.23. The mailing of the notice to the defendant did not comply with the requirements of CCP §405.22. CCP §405.23 provides that a notice that does not comply with CCP §405.22 is invalid/void.

 

 

  • 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 Joseph C. Scott, Department 25.

 

 

_____________________________________________________________________


9:00

7

CIV 530740       BETTY BLOXHAM VS. AIRCRAFT TECHNICAL PUBLISHERS

 

 

BETTY BLOXHAM                         J. PETER SHEARER

AIRCRAFT TECHNICAL PUBLISHERS         GORDON & REES LLP

 

 

MOTION TO COMPEL PLAINTIFF’S DEPOSITION BY AIRCRAFT TECHNICAL PUBLISHERS

 

 

 

  • DEFENDANT’S MOTION TO COMPEL PLAINTIFF’S DEPOSITION

 

and

 

·         PLAINTIFF’S MOTIONS FOR: COMPELLING DEFENDANT’S COMPLIANCE WITH ORDER COMPELLING PMK TESTIMONY ON ALL NOTICED TOPICS AND PRODUCTION OF DOCUMENTS; REQUIRING COUNSEL FROM FURTHER INAPPROPRIATE DEPOSITION CONDUCT; EVIDENTIARY AND MONETARY SANCTIONS; AND, APPOINTING A DISCOVERY REFEREE

 

 

  • These Motions are GRANTED and DENIED as follows:

 

 

  • Defendant’s Motion to Compel Plaintiff’s Deposition is GRANTED as set forth below.

 

 

·         Plaintiff’s request for Defendant to produce documents in a PST format is GRANTED. Plaintiff’s request that Defendant sort the responsive documents according to Document Request is DENIED.

 

 

·         Defendant shall produce the Documents (approx. 165,000 pages) in the PST format, on or before July 7, 2015. The resumed depositions of the PMKs shall commence on July 16, 2015. Plaintiff shall have until July 24, 2015 to review the material, and Plaintiff shall be available for her deposition July 27 - 31, 2015 (at dates mutually convenient to those involved). Plaintiff shall not be required to produce any documents at her deposition as Defendant did not demonstrate fact specific good cause for such requests.

 

 

·         Plaintiff seeks evidentiary sanctions as well as monetary sanctions. An evidentiary sanction must be supported by a Separate Statement (CRC Rule 3.1345(a)(7)), which was not done. Therefore, Plaintiff’s request for Evidentiary Sanctions is DENIED. The request for monetary sanctions by each side is also DENIED.

 

 

  • Plaintiff’s request for a Discovery Referee is DENIED.

 

 

  • In the resumed depositions of the PMKs, the PMK responding to Question Nos. 1, 2, 3, and 4 shall provide a response to the designated question. Follow-up questions may be asked, but objections may be asserted. The Motion with respect to Questions Nos. 5 & 6 is DENIED.

 

 

  • As for the Questions regarding the PMK’s failure to be prepared, the Motion is DENIED as being moot because of the resumed depositions of the PMKs.

 

 

·         The Court notes Plaintiff argues that there is no privacy protection for percipient witnesses (Puerto v. Sup. Ct. (2008) 158 Cal. App. 4th 1242, 1251-1252) Witnesses may be compelled to appear and testify whether they want to or not. It is clearly Plaintiff’s position that the identity of plaintiff’s predecessors at ATP and the reasons for the termination of their employment is not sufficiently private to warrant an instruction not to answer. However, the Court further notes that one of the key factors for the First District in Life Technologies Corp. v. Sup. Ct. (2011) 197 Cal. App. 4th 640, 656 was providing sufficient notice to the third party employees/former employees affording them a simple, reasonable means of objecting to the disclosure of their personal information. Both sides should familiarize themselves with Life Technologies and are instructed to meet/confer as to procedures that can be implemented to comply with the Life Technologies ruling.

 

 

·         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 Joseph C. Scott, Department 25.

 

 

 

MOTION FOR AN ORDER COMPELLING AIRCRAFT TECHNICAL PUBLISHERS’ BELATED COMPLIANCE WITH COURT ORDER COMPELLING BOTH: PMK TESTIMONY ON ALL NOTICED TOPICS AND PRODUCTION OF ALL NON - ATTORNEY CLIENT PRIVILEGED RESPONSIVE DOCUMENTS; 2) REQUIRING DEFENSE COUNSEL TO REFRAIN FROM FURTHER INAPPROPRIATE DEPOSITION CONDUCT; 3) AWARDING EVIDENTIARY AND MONETARY SANCTIONS; AND 4) APPOINTING A DISCOVERY REFEREE BY BETTY BLOXHAM

 

 

·         See above.

 

 

_____________________________________________________________________


9:00

8

CIV 532117       COLUMBUS MANUFACTURING, INC. VS. DGP ASSOCIATES, ET

                   AL.

 

 

COLUMBUS MANUFACTURING, INC.          DAVINA PUJARI

DGP ASSOCIATES                        REBECCA COLL

 

 

DEMURRER TO CROSS-COMPLAINT of 493 FORBES, LP BY COLUMBUS MANUFACTURING, INC.

 

 

  • The Demurrer to Cross-Complaint brought by Plaintiff / Cross-Defendant COLUMBUS MANUFACTURING, INC. is OVERRULED in its entirety.  Cross-Complainant DGP ASSOCIATES has sufficiently alleged its causes of action for (1) breach of lease; (2) breach of the implied covenant of good faith and fair dealing; and (3) declaratory relief.

 

 

  • Demurring party shall file and serve its Answer to the Cross-Complaint no later than July 15, 2015.

 

 

  • 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 Joseph C. Scott, Department 25.

 

 

_____________________________________________________________________


9:00

9

CIV 533450       KEN WONG VS. RAOUL ROBERT LEROY SIMPSON, ET AL.

 

 

KEN WONG                              PRO/PER

RAOUL ROBERT LEROY SIMPSON SIM        RICHARD L. BECKMAN

 

 

GENERAL DEMURRER TO COMPLAINT of KEN WONG BY RAOUL ROBERT LEROY SIMPSON SIM

 

 

  • Defendant Raoul Robert Leroy Simpson’s Demurrer to the Plaintiff’s Complaint is SUSTAINED WITHOUT LEAVE TO AMEND. The allegations set forth in the cause of action for breach of contract, particularly those at paragraphs BC-1, BC-2, BC-4 and BC-6 fail to state a cause of action against the named defendant Raoul Robert Lee Roy Simpson. Additionally, the copy of the promissory note attached to the complaint identifies it as a contract between the plaintiff and Vanessa Jade Wong Simpson, not named defendant Raoul Robert Leroy Simpson.

 

 

  • 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 Joseph C. Scott, Department 25.

 

 

 

_____________________________________________________________________


9:00

10

CIV 533509       ANDRE OSIPOV VS. CAPITAL ONE, NA, ET AL.

 

 

ANDRE OSIPOV                          CHARLES T. MARSHALL

CAPITAL ONE, NA                       LASZLO LADI

 

 

DEMURRER TO COMPLAINT of ANDRE OSIPOV BY CAPITAL ONE, NA

 

 

 

·         Demurrer to the first cause of action is SUSTAINED WITH LEAVE TO AMEND.  The Notice of Default cannot form the basis of a claim that Defendant violated Civil Code section 2923.6, because it was recorded in January 2014, before Plaintiff submitted his initial application in April 2014. A trustee’s sale cannot be the basis of Plaintiff’s claim, because the Complaint does not allege that a trustee’s sale has occurred. Therefore, the only basis can be the recording of a Notice of Sale.

 

 

·         The Notice of Sale recorded in November 2014 (Complaint ¶ 29) cannot be a violation, since it was recorded after Capital One denied, in August 2014, Plaintiff’s application. (Id. ¶ 26.) the other Notice of Sale was recorded May 23, 2014, after Plaintiff began the application process, but before the August 2014 denial. However, the Complaint does not allege when Plaintiff’s application was “completed” -- whether it was when he first submitted the initial papers in April 2014, or when he submitted additional documents on various dates (June 2, July 7, July 21). Therefore, the Complaint does not allege that the May 23, 2014, Notice of Sale was recorded at a time after Plaintiff submitted “a complete application.”  As a result,  the Complaint does not allege a violation of section 2923.6.

 

 

·         The Complaint also does not allege a cause of action based on a failure to negotiate in good faith. In the Copeland case cited by Plaintiff, the parties had agreed to negotiate; Plaintiff pleads no such agreement in this case. In the Corvello case, the parties were contracted to a Temporary Payment Plan, which is not the situation in this matter. Finally, there is no duty to grant a loan modification. (Lueras v BAC Home Loans Servicing, LP (2013) 221 Cal App 4th 49, 67.)

 

 

·         Demurrer to the second cause of action is SUSTAINED WITH LEAVE TO AMEND. Lending institutions generally owe no duty of care to borrowers, unless the lender exceeds the scope of its role as a lender. (Nymark v Heart Fed Savings & Loan Ass’n (1991) 231 Cal.App 3d 1089, 1096.) The allegations cited in paragraphs 25 and 27 describe acts that Defendant committed in the course of evaluating and denying Plaintiff’s loan modification application. They do not exceed the scope of Defendant’s role as a lender. Plaintiff’s argument that Defendant had a duty to negotiate in good faith lacks merit for the same reason set forth above re: 1st cause of action. Finally, the second cause of action alleges no damage.

 

 

·         Demurrer to the third cause of action is SUSTAINED WITHOUT LEAVE TO AMEND. California does not recognize negligent infliction of emotional distress as an independent tort. (Delfino v Agilent Techs, Inc. (2006) 145 Cal.App.4th 790, 818.)  As a claim for negligence, the third cause of action unnecessarily duplicates the second cause of action. 

 

 

·         Demurrer to the fourth cause of action is SUSTAINED WITH LEAVE TO AMEND. The complaint alleges a frustrating and drawn out attempt to obtain a loan modification. Nothing in the complaint describes any tortious activity by the demurring Defendant, let alone “so extreme and outrageous as to exceed all bounds of that usually tolerated in a civilized society.” (See Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883). Plaintiff argues that tortious breach of the implied covenant “is what this case is all about,” but the Complaint alleges no such claim. Further, damages for mental suffering and emotional distress are generally not compensable in contract actions. (Applied Equip. Corp. v. Litton Saudi Arabia Ltd. (1994)7 Cal. 4th 503, 516.)

 

 

·         Plaintiff is granted leave of court until July 14, 2015, to file and serve an amended complaint addressing the first, second, and fourth causes of action.

 

 

·         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.  

 

 

_____________________________________________________________________


9:00

11

CLJ 211252       ZAIDA BOWERS VS. DENNIS WILLIAMS

 

 

ZAIDA BOWERS                          PRO/PER

DENNIS WILLIAMS

 

 

MOTION TO QUASH SERVICE OF SUMMONS BY DENNIS WILLIAMS

 

 

  • The unopposed Motion to Quash by Defendant Dennis Williams is GRANTED.

 

 

·         The 3-Day Notice is insufficient and an insufficient notice will not support a complaint for unlawful detainer. The notice in this matter is deficient as It is dated June 15, 2015, which is the same date that the Unlawful Detainer complaint was filed. Plaintiff does not appear to have given the defendant the required three days’ notice to pay the rent as required under CCP §1161(2).

 

 

·         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 Joseph C. Scott, Department 25.

 

 

 

_____________________________________________________________________


9:00

12

CLJ 521376       IN RE: $1160.00

 

 

THE PEOPLE OF THE STATE OF CAL        DISTRICT ATTORNEY

JUNIOR T. OLOMUA

 

 

MOTION FOR SUMMARY JUDGMENT BY THE PEOPLE OF THE STATE OF CALIFORNIA AGAINST JUNIOR T. OLOMUA.

 

 

  • Plaintiff’s unopposed Motion for Summary Judgment is GRANTED. Plaintiff has met its initial burden under CCP § 437c(p)(1) through those matters deemed admitted that establish that interested party Junior Olomua has no claim to the currency [Fact 4] and that the $1,060.00 represents proceeds traceable to an exchange for controlled substances [Fact 3]. Interested party Junior Olomua has not filed a response and has not met his burden under CCP §437c(p)(1) of showing that a triable issue of material fact exists.

 

 

  • 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 Joseph C. Scott, Department 25.

 

 

 

_____________________________________________________________________


9:00

13

CLJ 528740       AMERICAN EXPRESS BANK, FSB VS. JUDEVIN L. SAPUGAY, ET

                   AL.

 

 

AMERICAN EXPRESS BANK                 LINA M. MICHAEL

JUDEVIN L. SAPUGAY                    PRO/PER

 

 

MOTION TO DEEM MATTERS ADMITTED FOR MONETARY SANCTION BY AMERICAN EXPRESS BANK

 

 

  • The unopposed Motion for Order Deeming Facts Admitted by Plaintiff American Express Bank, FSB is GRANTED pursuant to CCP § 2033.280.  All of those matters set forth in Plaintiff’s Request for Admissions, Set One, dated August 6, 2014, are hereby deemed admitted.

 

 

  • Plaintiff’s request for sanctions is also granted pursuant to CCP §§ 2023.010(d) and 2033.280(c).  Defendant shall pay Plaintiff a total of $420.00 in sanctions within 15 days of notice of entry of this 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 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 Joseph C. Scott, Department 25.

 

 

_____________________________________________________________________

 

 

 

 


POSTED:  3:00 PM

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