In the Superior Court of the State of California In and for the County of San Mateo   Law and Motion Calendar Judge: Honorable JOSEPH E. BERGERON Department 4   400 County Center, Redwood City Courtroom 2B   May 21, 2013

 

If you plan to appear on any case on this calendar,  you must call (650) 363-1882 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

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CIV 466439    ADVANCE RESTAURANT FINANCE, LLC VS. THAT'S IT, INC.

 

 

ADVANCE RESTAURANT FINANCE, LLC                 ANGELA A. VELEN

THAT'S IT, INC.

 

 

MOTION TO VACATE NOTICE OF SETTLEMENT FILED BY ADVANCE RESTAURANT FINANCE, LLC

 

 

·         The plaintiff’s motion to vacate the notice of settlement is DENIED.  

 

·         On January 18, 2008, plaintiff filed a notice of settlement.  On April 16, 2013, plaintiff filed its motion to vacate the notice of settlement.  Plaintiff has failed to bring this motion within 6 months after the notice of settlement was filed; and has failed to bring this motion within 6 months of the discovery of defendant’s failure to comply with the terms and conditions of the settlement agreement.  

 

·         On September 10, 2012, Plaintiff submitted to the court a notice of noncompliance with the settlement agreement.  This document indicates that on or before September 10, 2012, plaintiff and plaintiff’s counsel knew that the defendant had failed to comply with the terms and conditions of the settlement agreement.  Accordingly, pursuant to CCP § 473 (b) the six-month period began to run.  Plaintiff did not file the motion to vacate the notice of settlement until April 16, 2013, more than 6 months after plaintiff and plaintiff’s counsel learned of defendant’s noncompliance with the settlement agreement.  Accordingly, plaintiff is not entitled to relief under CCP section 473 (b).  

 

·         In addition, pursuant to CCP § 583.310, plaintiff’s complaint must have been brought to trial within 5 years after the complaint was filed.  Plaintiff’s complaint was filed on September 27, 2007.  More than 5 years have expired since the complaint was filed.  Accordingly, plaintiff’s complaint is subject to a mandatory dismissal.  

 

·         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 Joseph E. Bergeron, Department 4. 

 

 

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2

CIV 499026    IDEA FACULTY CLINIC, INC. VS. WYZARD & LEUNG, INC., ET AL

 

 

IDEA FACULTY CLINIC, INC.                       PHILIP J. WANG

WYZARD & LEUNG, INC.                            KELLI E. GEORGE

BUTLER-JOHNSON CORPORATION                      JAMES J. PATRICK

FOAM PRODUCTS CORPORATION                       RENEE WELZE LIVINGSTON

 

HEARING RE: ORDER DETERMINING GOOD FAITH SETTLEMENT

 

 

·         The unopposed Motion for a Good Faith Determination filed by cross-defendants Butler-Johnson Corporation and Foam Products Corporation is GRANTED.  Cross-defendants Butler-Johnson Corporation and Foam Products Corporation have generally complied with the requirements of CCP § 877.6 and Tech-Bilt v. Woodward Clyde & Associates (1985) 38 Cal 3rd 488. 

 

·         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 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 E. Bergeron, Department 4. 

 

 

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3

CIV 512066    SEAN J. ANDERSEN VS. BANK OF AMERICA, N.A., ET AL.

 

 

SEAN J. ANDERSEN                                MARC D. BENDER

BANK OF AMERICA, N.A.                           JASON M. RICHARDSON

 RECONTRUST COMPANY, N.A.

 

 

DEMURRER TO 2nd Amended COMPLAINT of ANDERSEN BY BANK OF AMERICA, N.A., RECONTRUST COMPANY, N.A.

 

 

·         The Demurrer as to the First Cause of Action is OVERRULED because it has adequately alleged the elements of a Wrongful Foreclosure claim under Civil Code section 2923.5. 

 

·         The Demurrer as to the Second Cause of Action (Promissory Estoppel) is SUSTAINED with leave to amend because Plaintiff fails to allege a clear and unambiguous promise. 

 

·         The Demurrer as to the Third Cause of Action (Unfair Business Practices) is SUSTAINED with leave to amend because Plaintiff has failed to properly allege facts that demonstrate he has standing to assert such a claim.  Plaintiff has failed to allege he has suffered injury in fact and has lost money or property as a result of such unfair competition. 

 

·         Defendants shall file and serve their Amended complaint on or before June 7, 2013. 

 

·         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 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 E. Bergeron, Department 4. 

 

 

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4

CIV 513783    SHIRLEY GOSHKO VS. MILLS-PENINSLA HEALTH SEVICES, ET AL.

 

 

SHIRLEY GOSHKO                                  PRO/PER

MILLS-PENINSLA HEALTH SEVICES                   JAMES J. ZENERE

 

 

DEMURRER TO 1st Amended COMPLAINT of GOSHKO BY MILLS-PENINSULA EMERGENCY MEDICAL, INC., DAVID ADAMS

 

 

·         Off calendar.  Moving Defendants were dismissed on 3/11/13. 

 

 

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5

CIV 518595    LISA LUCIANO VS. CITY OF SOUTH SAN FRANCISCO

 

 

LISA LUCIANO                                    T. TROY OTUS

CITY OF SOUTH SAN FRANCISCO                     GREGG A. THORNTON

 

 

DEMURRER TO COMPLAINT of LUCIANO BY CITY OF SOUTH SAN FRANCISCO

 

 

·         The Defendant CITY OF SOUTH SAN FRANCISCO’s unopposed Demurrer to First Amended Complaint is SUSTAINED without leave to amend as to Plaintiff’s claims for negligence and willful failure to warn.  These claims are barred by Government Code § 815. 

 

·         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 Joseph E. Bergeron, Department 4. 

 

 

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6

CIV 521102    MOTIONPOINT CORPORATION VS. MCDERMOTT WILL & EMERY, LLP

 

 

MOTIONPOINT CORPORATION                         TRACEY B. COWAN

MCDERMOTT WILL & EMERY, LLP                    

 

 

APPLICATION TO APPEAR AS COUNSEL PRO HAC VICE BY BRIAN A. GLASSER

 

·         The application is GRANTED. 

 

 

APPLICATION TO APPEAR AS COUNSEL PRO HAC VICE BY MARY PAT STATLER

 

·         The application is GRANTED. 

 

 

APPLICATION TO APPEAR AS COUNSEL PRO HAC VICE BY RICKLIN BROWN, ESQ.

 

·         The application is GRANTED. 

 

 

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7

CIV 521167    SOROUSH KABOLI VS. PELLARIN ENTERPRISES

 

 

SOROUSH KABOLI                                  MARK D. HUDAK

PELLARIN ENTERPRISES

 

 

HEARING ON APPLICATION FOR RIGHT TO ATTACH ORDER/WRIT OF ATTACHMENT AS TO PELLARIN ENTERPRISES FILED BY SOROUSH KABOLI

 

 

·         The Plaintiff's Application for Right to Attach Order and Writ of Attachment is GRANTED against Pellarin Enterprises in the amount of $132,634.11 to be levied against the proceeds of the sale of defendant's real property commonly known as 1151 E. Hillsdale Ave., Foster City, CA. 

 

·         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 E. Bergeron, Department 4. 

 

 

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8

CLJ 505799    DOLLAR THRIFTY AUTOMOTIVE GROUP, INC. VS. TREYANA PIERCE

 

 

DOLLAR THRIFTY AUTOMOTIVE GROUP, INC.           TODD F. HAINES

TREYANA PIERCE                                  PRO/PER

 

 

MOTION TO COMPEL ANSWERS TO FORM INTERROGATORIES SERVED AND REQUEST FOR SANCTIONS BY DOLLAR THRIFTY AUTOMOTIVE GROUP, INC.

 

·         The motion to compel is GRANTED.  Defendant shall provide verified responses to the form interrogatories within 15 days.  The request for sanction is also granted.  Defendant shall pay plaintiff $255 within 15 days. 

 

 

MOTION TO COMPEL ANSWERS TO DEEM ADMITTED THE FIRST SET OF REQUEST FOR ADMISSIONS BY DOLLAR THRIFTY AUTOMOTIVE GROUP, INC.

 

·         The motion to deem matters admitted is GRANTED.  The genuineness of any documents and the truth of any matters specified in the requests for admission are admitted.  The request for sanctions is also granted.  Defendant shall pay $255 within 15 days. 

 

·         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 Joseph E. Bergeron, Department 4. 

 

 

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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 ROBERT D FOILES Department 21   400 County Center, Redwood City Courtroom 2J   MAY 21, 2013

 

If you plan to appear on any case on this calendar,  you must call (650) 363-4813 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

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CIV 516382    JOHN SAMPANG VS. CFS INSURANCE SERVICES, INC.

 

 

JOHN SAMPANG                                    DAVID SPIVAK

CFS INSURANCE SERVICES, INC.                    MELINDA S. RIECHERT

 

 

COMPLEX CASE STATUS CONFERENCE

 

 

·         Appear. 

 

 

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In the Superior Court of the State of California In and for the County of San Mateo   Special Set Law and Motion Calendar Judge: Honorable JOSEPH C. SCOTT Department 25   400 County Center, Redwood City Courtroom 2M   MAY 21, 2013

 

IF YOU INTEND TO APPEAR ON ANY CASE ON THIS CALENDAR YOU MUST DO THE FOLLOWING: 1.  YOU MUST CALL (650) 363-4334 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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PRO 117239  ESTATE OF DELORES ELAINE SMITH

 

 

HEARING DEMURRER TO 2^ND AMENDED PETITION, RE: NEIL SMITH

 

 

·         The Demurrer by LPL Financial to the Second Amended Complaint of Neil Smith is SUSTAINED WITHOUT LEAVE TO AMEND. 

 

·         The statute of limitations for funds illegally removed from an account or other bailment begins to run from the date of the taking, subject to tolling where the delayed discovery rule is deemed to apply.  (See Reed v. Malony (1940) 38 Cal.App.2d 405, 411.) 

 

·         Respondent’s Request for Judicial Notice is GRANTED.  This court can take judicial notice of facts indicating that Petitioner learned of the illegal taking in 2007 when the trial court entered judgment against Alan Smith for having illegally taken the funds in question. 

 

·         Respondent shall submit an Order Sustaining Demurrer without leave to amend and a judgment of dismissal. 

 

·         Demurring party is directed to prepare a written order consistent with the court's tentative ruling for the court's signature, pursuant to CRC 3.1312, and to provide notice thereof to all counsel and parties as required by law and the California Rules of Court.  The order is to be submitted directly to Judge Joseph C. Scott, Department 25. 

 

 

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