June 28, 2016
Law & Motion Department 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 donald j. ayoob

Department 27

 

400 County Center, Redwood City

Courtroom 7B

 

Tuesday, June 28, 2016

 

 

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 526074       ILA R. LOEB VS. LENCIONI CONSTRUCTION CO., INC.

 

 

ILA R. LOEB                           MATTHEW R. SCHOECH

LENCIONI CONSTRUCTION CO., INC.       ALEXANDER R. MOORE

 

 

DEMURRER TO CROSS-COMPLAINT of LENCIONI CONSTRUCTION COMPANY, INC., BY KOLBE & KOLBE MILLWORK CO, INC.

 

The Demurrer of Kolbe and Kolbe Millwork is ordered off calendar. Cross-complainant Lencioni Construction dismissed the subject first through fifth causes of action on May 27, 2016.

Counsel for Kolbe and Kolbe Millwork is reminded to comply with CRC Rule 3.1304(b) (“moving party must immediately notify the court if a matter will not be heard”). Counsel is reminded that failure to advise the court at least three court days before the hearing of the fact that the hearing will not proceed as scheduled may be deemed by the court to be a violation of an order of the court, and subject to a monetary sanction under Code of Civil Procedure section 177.5. (See San Mateo County Superior Court Rule 3.9(b).)

 

____________________________________________________________________


9:00

2

CIV 528860       ROSEMARY N. CHUKWUDEBE VS. CHRISTOPHER PIRRONE

 

 

ROSEMARY N. CHUDWUDEBE                PRO/PER

CHRISTOPHER PIRRONE                   CHRISTOPHER PIRRONE

 

 

MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION OF ISSUES BY

ROSEMARY N. CHUDWUDEBE

 

Plaintiff’s motion for summary judgment as to Defendant Steven S. Gohari is DENIED. Plaintiff failed to meet her burden. (CCP §437c(p)(1).) Plaintiff’s motion for summary adjudication is DENIED on the same ground.

 

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 Donald J. Ayoob, Department 27.

 

_____________________________________________________________________


9:00

3

CIV 531054       CITY OF EAST PALO ALTO VS. GARY P. CECCATO, ET AL.

 

 

CITY OF EAST PALO ALTO                MARC G. HYNES

GARY P. CECCATO                       PETER H. BONIS

 

 

MOTION TO STRIKE PORTIONS OF SECOND AMENDED CROSS-COMPLAINT BY WILLIAM F. GARLOCK, JASON GARLOCK AND CURTIS GASPARD

 

 

The cross-defendants’ unopposed Motion to Strike is GRANTED WITHOUT LEAVE TO AMEND.

 

 

DEMURRER TO SECOND Amended CROSS-COMPLAINT of CECCATO BY WILLIAM F. GARLOCK, JASON GARLOCK AND CURTIS GASPARD

 

Cross-defendants’ Request for Judicial Notice is GRANTED pursuant to Evidence Code §452(d).

 

The cross-defendants’ unopposed demurrer to the 2nd cause of action for Fraudulent Transfer is SUSTAINED WITHOUT LEAVE TO AMEND. The official records of the California Department Of Housing and Community Development [which the court has previously taken judicial notice of] show that none of the demurring parties ever held title to any of the four manufactured homes and cannot therefore have transferred the four manufactured homes.

 

The cross-defendants’ unopposed demurrer to the 3rd cause of action for Conversion is SUSTAINED WITHOUT LEAVE TO AMEND. By incorporating ¶ 11 of the second amended cross-complaint, which incorporates the agreement attached to the cross-complaint as Exhibit A, cross-complainants must have admitted that by the express terms and conditions of that agreement that a) none of the moving parties are parties to that agreement; b) the property that is subject to that agreement does not include personal property such as the four manufactured homes and c) that the agreement was effective as of June 2007. Therefore any allegation that the moving parties are obligated to the cross-complainants under the agreement is untenable as none of the moving parties are parties to the agreement.

 

The cross-defendants’ unopposed demurrer to the 4th cause of action for RICO is SUSTAINED WITH LEAVE TO AMEND. The cause of action for violation of RICO is not pled with the requisite specificity. Lancaster Community Hospital v. Antelope Valley Hospital District (9th Cir. 1991) 940. F. 2d 397, 405. Cross-complainants must allege the time, place and manner of each predicate act, the nature of the scheme involved and the role of each defendant in the scheme.  

 

The cross-defendants’ unopposed demurrer to the 5th cause of action for Equitable Indemnity is SUSTAINED WITHOUT LEAVE TO AMEND. A cause of action for indemnity only applies among defendants who are jointly and severally liable to a third-party. See Witkin, Summary of Law 10th Ed.,”Torts”, Section 115, page 213. The cross-defendants are not alleged to have ever owned any of the real property located at 1893 Woodland Ave., East Palo Alto, California. Ownership is a requirement for any obligation to pay any fees to the City of East Palo Alto. Absent such an obligation, there is no equitable indemnity obligation that can properly be imposed upon the moving parties.

 

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 Donald J. Ayoob, Department 27.

_____________________________________________________________________


9:00

4

CIV 534040      MARK DE BIBO VS. RYAN & RYAN CONSTRUCTION, INC., ET AL

 

 

MARK DE BIBO                          ERIKA M. GASPAR

RYAN & RYAN CONSTRUCTION, INC.        ROY M. BARTLETT

 

 

DEMURRER TO FIRST Amended COMPLAINT of BIBO BY RYAN & RYAN CONSTRUCTION INC., ET AL.

 

Defendants RYAN & RYAN CONSTRUCTION, INC.; GARY RYAN, JR.; CHAD RYAN; CHERYL RYAN; and GARY RYAN, SR.’s Demurrer to First Amended Complaint is SUSTAINED IN PART and OVERRULED IN PART, as follows:

 

OVERRULED on statute of limitations grounds. For a statute of limitations bar to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows merely that the action may be barred. McMahon v. Republic Van & Storage Co., Inc. (1963) 59 Cal.2d 871, 874. Here, Plaintiff sufficiently alleges that his claims were equitably tolled during the time when the parties were discussing mediation. Equitable tolling is “designed to prevent unjust and technical forfeitures of the right to a trial on the merits when the purpose of the statute of limitations – timely notice to the defendant of the plaintiff’s claims – has been satisfied.” McDonald v. Antelope Valley Community College District (2008) 45 Cal.4th 88, 99. Where applicable, the doctrine will “suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness.”  Id. 

 

SUSTAINED WITHOUT LEAVE TO AMEND as to the First Cause of Action for Breach of Written Contract asserted against individual Defendants GARY RYAN, JR.; CHAD RYAN; CHERYL RYAN; and GARY RYAN, SR. Plaintiff acknowledges that none of these individuals executed the Joint Venture Agreement in their individual capacity, nor is it alleged or asserted that they assumed any obligations personally.

 

SUSTAINED WITH LEAVE TO AMEND as to the Second Cause of Action for Breach of Fiduciary Duty asserted against individual Defendants CHERYL RYAN; CHAD RYAN; and GARY RYAN, SR. The elements of a cause of action for breach of fiduciary duty are the existence of a fiduciary relationship, its breach, and damage proximately caused by that breach. Pierce v. Lyman (1991) 1 Cal.App.4th 1093, 1101. While there are sufficient allegations in the FAC to assert a claim for breach of fiduciary duty against Defendants RYAN & RYAN CONSTRUCTION, INC. and GARY RYAN, JR., this claim is not sufficiently pled as to the remaining individual Defendants.

 

SUSTAINED WITH LEAVE TO AMEND as to the Third Cause of Action for Concealment and Fourth Cause of Action for Fraud. Plaintiff is granted leave to consolidate these claims into one cause of action for constructive fraud, as defined by Civil Code § Civil Code § 1573.  Defendants’ demurrer on the ground of specificity is also sustained with leave to amend. A claim for fraud must be alleged with factual specificity. Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73. Further, to assert a fraud action against a corporation, a plaintiff must also allege the names of the person(s) who allegedly made the fraudulent representation, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.  Tarmann v. State Farm Mutual Auto Insurance Co. (1991) 2 Cal.App.4th 153, 157.

 

OVERRULED as to the Fifth Cause of Action for Conversion. 

 

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 Donald J. Ayoob, Department 27.

_____________________________________________________________________


9:00

5

CIV 535413       AUTOBAHN MOTORS, INC. VS. MASKAY CORPORATION, ET AL.

 

 

AUTOBAHN MOTORS, INC.                 BRUCE NYE

MASKAY CORPORATION                    HERMAN FRANCK

 

 

MOTION FOR LEAVE TO FILE A CROSS-COMPLAINT BY JOHN T. DIAZ

 

The Motion by Defendant John Diaz for Leave to File a Cross-Complaint is GRANTED. Under the permissive standard set forth in CCP §426.50, leave to file a compulsory cross-complaint is mandatory absent a substantial showing of bad faith. Silver Organizations Ltd. v. Frank (1990) 217 Cal.App.3d 94, 100. Where there is substantial evidence of bad faith the court may deny leave to file a compulsory cross-complaint. Id at 98-99. The Defendant has shown that his cross-complaint is compulsory as defined by CCP § 426.30 and the Plaintiff has not provided a substantial showing of bad faith in Defendant’s filing of a motion for leave.

 

Defendant shall file a Cross-Complaint within 10 days of entry of the order granting the motion.

 

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

6

CIV 536067       AVRHARM YUSUPOV VS BANK OF AMERICA, N.A., ET AL.

 

 

AVRHARM YUSUPOV                          ERIKSON M. DAVIS

BANK OF AMERICA, N.A.                    JOEL C. SPANN

 

 

MOTION TO COMPEL PLAINTIFF TO ANSWER AND PRODUCE DOCUMENTS REFUSED AT PRIOR DEPOSITION BY SPECIALIZED LOAN SERVICING, LLC

 

By prior order of the Court, the Motion is continued to July 6, 2016, at 9:01 a.m. in Department 27.

_____________________________________________________________________


9:00

7

CIV 537512       VALERA IAMKOVOI VS. MICHAEL HARDEN, ET AL.

 

 

VALERA IAMKOVOI                          JOEL P. WAELTY

MICHAEL HARDEN

 

 

MOTION TO STRIKE PUNITIVE DAMAGES FROM COMPLAINT BY MICHAEL HARDEN, ET AL.

 

At moving parties request, the motion is off calendar.

_____________________________________________________________________


9:00

8

CIV 537609       MARIA MENDOZA VS. VICENTA CHAVEZ

 

 

MARIA MENDOZA                         JEFFREY R. WINDSOR

VICENTA CHAVEZ                        PAULA K. CANNY

 

 

MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR ADMISSION BY MARIA MENDOZA

 

The Plaintiff’s unopposed Motion to Compel Further Responses to Request for admissions is GRANTED pursuant to CCP §2030.290(a). Defendant shall provide further verified responses, without objection, to the Request for Admissions [Set 1] within 15 days of service of the notice of entry of the order. Defendant is further ordered to pay sanctions in the amount of $450.00 to Plaintiff within 15 days of service of the 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 Donald J. Ayoob, Department 27.

      _____________________________________________________________________


9:00

9

CLJ 520267       CAPITAL ONE BANK (USA), N.A. VS. SHIRLEY S. MANESE

 

 

CAPITAL ONE BANK (USA), N.A.          AMY LIEF

SHIRLEY S. MANESE                     KAREN WARE

 

 

MOTION TO WITHDRAW AS ATTORNEY OF RECORD FOR SHIRLEY S. MANESE BY KAREN WARE

 

Counsel Karen Ware’s unopposed Motions to Withdraw as counsel for Defendant Shirley Manese is GRANTED pursuant to Code of Civil Procedure §284(2). CCP § 284(2) provides that an attorney may apply to the court for an order to withdraw after giving notice. Notice has been provided to the Defendant and to Plaintiff’s counsel.

 

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 Donald J. Ayoob, Department 27.

_____________________________________________________________________


9:00

10

CLJ 535679       IN RE: $1,115.00

 

 

PEOPLE OF THE STATE OF CALIFORNIA     MEGAN WILKINS

JASON SCOTT TREMAINE

 

 

MOTION FOR ORDER FOR TERMINATING SANCTIONS AND STRIKING CLAIM BY PEOPLE OF THE STATE OF CALIFORNIA

 

Petitioner the People of the State of California’s Motion for Terminating Sanction is GRANTED. The court is imposing a terminating sanction pursuant to CCP sections 2023.010(d), 2030.290(c), and 2031.300(c) for Mr. Tremaine’s failure to respond to an authorized method of discovery and failing to comply with this court’s order on February 10, 2016, compelling him to answer the interrogatories within 10 days of service of the 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 Donald J. Ayoob, Department 27.

____________________________________________________________________________


 

 

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, June 28, 2016

 

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 53419      JOE BAKER, ET AL. VS. SUNRUN INC., ET AL.

                 

 

JOE BAKER                             FRANCIS A. BOTTINI, JR.

SUNRUN, INC.

 

 

COMPLEX CASE STATUS CONFERENCE

 

 

·         The complex case status conference is continued to 90 days to September 28, 2016 at 9:00 a.m.  The case has been removed to federal court.

 

 


 

 

 

 


POSTED:  3:00 PM

 

© 2016 Superior Court of San Mateo County