December 21, 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

 

DECEMBER 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 499028       IN RE: 2510 HASTINGS DRIVE, BELMONT, CA  94002-3322

 

 

2510 HASTINGS DR., BELMONT, CA        ANNA MARIE FARRALES

 

 

PETITION FOR ORDER FOR PAYMENT FROM COURT DEPOSIT OF SURPLUS FUNDS FROM TRUSTEE'S SALE BY GARRET EDWARD WONG

 

 

·         Claimant Garrett Edward Wong’s Petition for Order for Payment from Court Deposit of Surplus Funds from Trustee Sale is GRANTED pursuant to Code 2924k(d)(4).

 

·         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.

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9:00

2

CIV 500942       WEEKS STREET LLC VS. NEXGEN BUILDERS, INC., ET AL.

 

 

WEEKS STREET LLC                      CHARLES J. SMITH

NEXGEN BUILDERS, INC.                 GRANT H. BAKER

 

 

MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES AND REQUEST FOR SANCTIONS BY NEXGEN BUILDERS, INC.

 

 

·         The Motion is denied as to both Interrogatories. Nothing in Nexgen’s Separate Statement or Points and Authorities explains what relevance to any subject matter the alleged payments to Mr. Kennedy have. Nexgen argues that the payments are relevant to the defense of unclean hands, but offers only a conclusion with no factual explanation. Nexgen argues Weeks Street “chose” to pay Mr. Kennedy instead of paying Nexgen or subcontractors, but does not explain the legal significance of that choice.

 

·         Further, it appears that part of the contract between Weeks Street and Nexgen required Nexgen to submit a request for payment before it could be paid.  Nexgen apparently did this for the previous 11 requests but refused to for request 12. This procedure for payment is the only procedure set forth in the Nexgen contract. 

 

·         Additionally, it appears from the contract between Weeks Street and Nexgen that payment to Nexgen was to come from the FNB Loan, and not from the capital of Weeks.  Nexgen’s cross-complaint alleges a breach of contract. And payments for the previous 11 requests appeared to have come from the FNB loan. A financial inability to pay pursuant to contract obligation is not a defense. Therefore, whether Weeks Street or its general manager Kennedy had the funds to pay is of no relevance to any subject matter.

 

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

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9:00

3

CIV 525485       DORSETTA CAGLE VS. FREUTEL ROOFING INC., ET AL.

 

 

DORSETTA CAGLE                        JEFFREY R. WINDSOR

FREUTEL ROOFING INC.                  COLETTE F. STONE

 

 

MOTION FOR DETERMINATION OF GOOD FAITH SETTLEMENT BY FIRE INSURANCE EXCHANGE

 

·         Defendant FIRE INSURANCE EXCHANGE (“FIE”)’s Motion for Determination of Good Faith Settlement is DENIED. 

 

·         Procedurally, the Motion is flawed in that the moving papers were not served on all Defendants as required by Code Civ. Proc. § 877.6(a)(2).  Of particular concern is the fact that Defendants TEODORO BLANCO and NESTOR MUNOZ were not served and have had no opportunity to oppose the Motion.

 

·         The Motion is denied on its merits after applying the factors set forth in Tech-Bilt v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488.  The first and second factor require the Court to consider the rough approximation of Plaintiff’s total recovery and FIE’s proportionate liability, and the proposed settlement amount.  Here, Plaintiff’s property damage alone is estimated at $39,828.08, and does not include additional damages for emotional distress, personal injuries, attorney’s fees, and punitive damages.  While the fourth Tech-Bilt factor recognizes that a settling party should pay less in settlement than he would if he were found liable after trial, FIE’s proposed settlement of $3,000.00 is not “within the ballpark” of its potential share of liability, considering that FIE is Plaintiff’s homeowner’s insurance carrier.  

 

·         The fifth factor also militates against a finding of good faith settlement, in that FIE’s financial condition and insurance policy limits are sufficient to compensate Plaintiff for her damages should it be found liable at trial.  As to the sixth factor, the Court finds that there is no evidence of collusion, fraud, or tortious conduct aimed at injuring the interests of the non-settling Defendants.  Nevertheless, after considering all of the papers, the Motion is denied.

 

·         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.

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9:00

4

CIV 525588       JESSICA L. STEVENS VS. VERN WRIGHT, ET AL.

 

 

JESSICA L. STEVENS                    PRO/PER

VERN WRIGHT                           PRO/PER

 

 

MOTION TO COMPEL RESPONSES TO REQUEST FOR DOCUMENTS, SPECIAL INTERROGATORIES AND FORM INTERROGATORIES BY VERN WRIGHT AND JUNE WRIGHT

 

 

·         Defendants, Motion to Compel Responses to Discovery is DENIED because of defective service upon Plaintiff. Plaintiff did not submit any Opposition. Notice of this Motion required 16 Court days notice plus five calendar days because it was mailed to Plaintiff. Such notice was not given. Additionally, the ZIP Code used for Plaintiff’s address when the Motion was mailed was 944044 instead of 94404. Use of the wrong ZIP Code invalidates service in the absence of proof of actual receipt of notice. (Moghaddam v. Bone (2006) 142 Cal. App. 4th 283, 288 “In the absence of proof notice was actually received, the Bones’ failure to use the correct ZIP Code invalidates what would have otherwise been sufficient notice.”)

 

·         This ruling is without prejudice to Defendants to bring a similar with proper service.

 

·         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.

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9:00

5

CIV 527290       MELODY HAWKINS VS. REBECCA DELGADO

 

 

MELODY HAWKINS                        GARY S. MOBLEY

REBECCA DELGADO                       PRO/PER

 

 

MOTION TO COMPEL FURTHER ANSWERS TO PLAINTIFF’S FIRST SET OF FORM INTERROGATORIES AND FOR AN AWARD OF MONETARY SANCTIONS BY MELODY HAWKINS

 

 

·         Plaintiff’s Motion to Compel Further Answers to Plaintiff’s Form Interrogatories is GRANTED, and Defendant Rebecca Delgado shall provide a full and complete, verified response to Form Interrogatory No. 15.1 without objection within 15 days after service of Notice of Entry of Order.

 

·         Defendant Rebecca Delgado shall pay Monetary Sanctions to Plaintiff in the amount of $1,300.00 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 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.

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9:00

6

CIV 530297       ANE HAUPEAKUI, ET AL. VS. BANK OF AMERICA, NA

 

 

ANE HAUPEAKUI                         NASSER KHAN

BANK OF AMERICA, NA                   ALEXANDRA C. SEIBERT

 

 

DEMURRER TO COMPLAINT of HAUPEAKUI BY BANK OF AMERICA, NA

 

 

·         This matter is moot. A First Amended Complaint was filed on December 5, 2014.

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9:00

7

CIV 531023       WILLIAM B. SHINE, ET AL. VS. LAWRENCE A. JACOBSON,

                   ESQ., ET AL.

 

 

WILLIAM B. SHINE                      MICHELE L. MCKEE

LAWRENCE A. JACOBSON, ESQ.            JOHN B. SULLIVAN

 

 

MOTION TO STRIKE ALLEGATIONS OF PLAINTIFFS’ COMPLAINT BY LAWRENCE A. JACOBSON, ESQ. AND COHEN & JACOBSON, LLP

 

 

DEMURRER TO COMPLAINT FOR LEGAL MALPRACTICE, CONSTRUCTIVE FRAUD, LEGAL MALPRACTICE/DUAL REPRESENTATION OF ADVERSE INTERESTS AND BREACH OF FIDUCIARY DUTY BY LAWRENCE A. JACOBSON, ESQ. AND COHEN & JACOBSON, LLP

 

 

·         Defendant’s unopposed Demurrer to the Complaint is sustained with leave to amend.  Given the Court’s ruling on the Demurrer, the Motion to strike is moot.

 

·         Plaintiff’s counsel advised the Court by letter that an Amended Complaint would be filed before the hearing date.  At the time of this tentative ruling, no such Amended Complaint has been filed.

 

·         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

8

CLJ 513744       STATE FARM MUTUAL AUTOMOBILE INS. CO. VS. MATTHEW

                   NEIL GEISER

 

 

STATE FARM MUTUAL AUTOMOBILE INS. CO. HARLAN M. REESE

MATTHEW NEIL GEISER

 

 

MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT BY MATTHEW NEIL GEISER

 

 

·         Defendant’s Motion to Set Aside Default is DENIED.  Defendant failed to comply with Code of Civil Procedure § 473.

 

·         Defendant has failed to meet the requirements of CCP § 473.  Defendant does not mention his own mistake, inadvertence, surprise or excusable neglect in the Motion or his Declaration in support.  Defendant does not state that he did not know about the lawsuit against him.  He doesn’t deny that he did contact Plaintiff’s counsel in an attempt to work out a settlement. 

 

·         Defendant’s claim that he was not served with the Complaint is specious, considering that the address in the police report after the accident is the address where he was allegedly served by a registered process server, and it is the same address he used on the Proof of Service now.  Defendant did not state that he did not know about the lawsuit against him, but only the Default Judgment. 

 

·         Defendant also did not comply with CCP § 473, which requires that an application for relief from default be accompanied by the proposed pleading to be filed.  CCP § 473(b). There is no proposed Answer or other pleading filed with the Motion, therefore the Motion must be denied.  CCP § 473(b). The language of the code section is “otherwise the application shall not be granted.” Ibid (emphasis added). 

 

·         Defendant’s Default was entered on August 8, 2012 and a copy mailed to him on July 25, 2012.  He had ample time to file a responsive pleading in that two week period.  A Default Judgment was not entered against him until February 20, 2014.  Defendant had a year and a half to attempt to vacate the default. He was not diligent in protecting his interests.    

 

·         Prevailing 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.

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9:00

9

CLJ 527503       DAVID WOOLSEY VS. TASSI, INC., ET AL.

 

 

DAVID WOOLSEY                         PETER H. LIEDERMAN

TASSI, INC.

 

 

MOTION TO SET ASIDE DEFAULT BY TASSI, INC. AND BRUCE TASSI

 

 

·         Defendants’ Motion to Set Aside Default is DENIED because Defendants have failed to show any basis for their own mistake, inadvertence, surprise or excusable neglect; also, Defendants have failed to establish attorney fault because Mr. Pollak was not Defendants’ attorney when the default was entered. (See, Cisneros v. Vueve (1995) 37 Cal. App. 4th 906, 912)

 

·         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.

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9:00

10

CLJ 530826       GARY ALAN NISHITA JR. VS. COUNTY OF SAN MATEO, ET AL.

 

 

GARY ALAN NISHITA JR.                 AARON DAWSON

COUNTY OF SAN MATEO

 

 

MOTION FOR LEAVE TO FILE AMENDED PETITION BY GARY ALAN NISHITA

 

 

·         This matter is moot.  The case was dismissed on December 10, 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

 

DECEMBER 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 530955       RAFAEL GUTIERREZ VS. SAVE MART SUPERMARKETS

 

 

RAFAEL GUTIERREZ                      PRO/PER

SAVE MART SUPERMARKETS

 

 

COMPLEX CASE STATUS CONFERENCE

 

 

·         This matter is continued to March 17, 2015 at 9:00 A.M. in Department PJLM to give Plaintiff time to complete service of process on remaining parties.

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POSTED:  3:15 PM

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