May 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, April 28, 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 483928       HEMINA PATEL VS. VINAYAK PATEL

 

 

HEMINA PATEL                          STEVEN H BOVARNICK

VINAYAK PATEL                         MICHAEL HEATH

 

 

JUDGMENT ON THE PLEADINGS BY PRAFULABEN PATEL

 

 

·         Plaintiff / Cross-Defendant PRAFULABEN PATEL’s  Motion for Judgment on the Pleadings is GRANTED WITHOUT LEAVE TO AMEND, in its entirety, on the ground that the Second Amended Cross-Complaint fails to state facts sufficient to constitute a cause of action. [Code Civ. Proc. § 438].  Granting a motion for judgment on the pleadings is proper where res judicata and/or collateral estoppel are a bar to further litigation.  [Barker v. Hull (1987) 191 Cal.App.3d 221, 227].

 

·         Defendant / Cross-Complainant VINAYAK PATEL’s (Vinayak) causes of action for (1) quiet title and (2) fraudulent transfer and conspiracy to engage in fraudulent transfer are both barred by res judicata.  On February 6, 2014, the U.S. Bankruptcy Court for the Eastern District of California held a trial on the merits of Vinayak’s Adversary Complaint in Bankruptcy Case No. 12-36626.  The Bankruptcy Court specifically found that the May 8, 2008 Grant Deed, upon which the claims of Vinayak are based, was given to him as security only.  In addition, the Bankruptcy Court found that Vinayak, rather than Suren Patel, engaged in fraudulent conduct by recording the deed in violation of their settlement agreement.  (Prafulaben’s Request for Judicial Notice, Exhibit F, Reporter’s Transcript of Proceedings at pp. 84-85.)  Res judicata precludes parties or their privies from re-litigating an issue that has been fully and finally determined by a court of competent jurisdiction.  [Dillard v. McKnight (1949) 34 Cal.2d 209, 213].  Accordingly, judgment on the pleadings is granted in favor of Prafulaben Patel on the Second Amended Cross-Complaint. 

 

·         Plaintiff / Cross-Defendant HEMINA PATEL’s Joinder in the Motion is GRANTED.

 

·         Prafulaben Patel’s Request for Judicial Notice is GRANTED as to Exhibits F and G in their entirety.  Judicial notice of the remaining document is GRANTED only insofar as they were duly filed or recorded, but not as to the truth of any matters contained therein. 

 

·         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 503985       BOREL PRIVATE BANK & TRUST COMPANY VS. KIMBALL W.

                   SMALL, ET AL.

 

 

BOREL PRIVATE BANK & TRUST COMPANY    STEPHEN J. KOTTMEIER

KIMBALL W. SMALL                      PRO/PER

 

 

MOTION TO AMEND JUDGMENT TO ADD SUCCESSOR TRUSTEE BY BOREL PRIVATE BANK & TRUST COMPANY

 

 

·         The Request for Judicial Notice by Plaintiff is GRANTED pursuant to Evidence Code §452(d).

 

·         The unopposed Motion by Plaintiff To Amend Judgment to Add Successor Trustee is GRANTED. Kelsey Stiles, in her capacity as the successor trustee of the Small Trust, stands in the shoes of the judgment debtor and is bound by the judgment as a matter of law.[CCP §1908; Moeller v. Superior Court (1997) 16 Cal 4th 1124].  A court may amend a judgment at any time so that the judgment will properly designate the real defendant. [CCP §187, Danko v. O’Reilly (2014) 232 Cal App 4th 732, 735]. And amendments to add a third-party judgment debtor are allowed where necessary to prevent injustice. [Carr v. Barnabey’s Hotel Corporation (1994) 23 Cal App 4th 14, 20-21].

 

·         In this case, as the successor trustee of the judgment debtor trust, Kelsey Stiles is the real defendant in her capacity as successor trustee. The court grants Plaintiff’s motion to amend the judgment to include Kelsey Stiles solely in her capacity as successor trustee of the Small Trust.

 

·         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

3

CIV 522390       ANDY SABERI, ET AL. VS. SAEED GHAFOORI

 

 

ANDY SABERI                           BEHROUZ SHAFIE

SAEED GHAFOORI                        ORESTES A. CROSS

 

 

MOTION FOR ORDER PERMITTING DEPOSIT WITH COURT BY ANDY SABERI AND THOMAS SABERI

 

 

·         The Motion by Plaintiff Andy Saberi and Cross-defendant Thomas Saberi for an Order Permitting the Deposit with Court the sum of at least $33,327.46 with the Clerk of the Court is GRANTED. Said sum shall be held under further order of the Court in these proceeding regarding those funds.   This order is in no way to be construed as a finding of fact or other determination regarding the merits of the case.

 

·         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 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 FOR FAILURE TO COMPLY WITH COMPELLING ORDER BY N.A. SALES COMPANY, INC.

 

 

·         Plaintiff’s Motion for Terminating Sanction is DENIED.

 

·         The Notice of Motion states that the ground for terminating sanction is for failure to comply the Order “compelling Defendant to attend and produce documents at the noticed deposition.” (See Notice of Hearing at 2:2-8.) Nothing in the moving papers indicates or implies that Defendant failed to appear for deposition or produce document at it.

 

·         The moving Points and Authorities argue instead that Defendant Lee failed to comply with the portion of the order directing further responses to special interrogatories and document requests and directing production of documents. (Moving Points and Authorities at 1:14-17; See March 3, 2015, Order at 2:19 – 3:6.)

 

·         The moving Points and Authorities contain no argument that any of the supplemental responses to the document demand fail to comply with the Court’s March 3, 2015, Order, or that Defendant failed to produce documents. The supporting Declaration of Brian Song similarly states no such facts.

 

·         Defendant’s supplemental responses to interrogatories 44 through 50 fail to comply with the Court’s order. Defendant Lee was the CEO, director, and sole shareholder of the corporations. Even if Defendant Lee’s contention is true that he personally lacks information responsive to the interrogatories, he is obligated to set forth specific facts about good faith attempts to obtain the information, and not just a single phone call to a third party. Although Defendant did serve supplemental responses, they are devoid of substance.

 

·         A terminating sanction is disproportionate to Defendant’s failure to respond to the interrogatories, which each ask only for specific dollar amounts. Interrogatories 44, 45, and 49 ask for “sales revenue” of three corporations during the time Defendant was the CEO. Interrogatories 46, 47, 48, and 50 ask for portions of corporate “sales receipts . . . that June Jang deposited into her personal bank accounts” during the time Defendant was CEO. The only cause of action against Defendant Lee is alter ego liability for all the debts of Fremont Gateway and Bishop Ranch Gateway in action 525916. The interrogatories at issue appear to relate to Plaintiff’s claims in action 525758 for fraudulent transfers. Defendant Lee is not a Defendant in that action. The failure to respond to these interrogatories, which relate to the fraudulent transfer claim, does not justify a terminating sanction on the alter ego claim (breach of contract, common counts).

 

·         The alternative Motion for issue or Evidence Sanction, although appropriate, is DENIED for Plaintiff’s noncompliance with CRC Rule 3.1345(a)(7) [motion issue or evidence sanction requires Separate Statement]. Further, Plaintiff moves for a sanction “in the form of establishing that HG LEE was an alter ego of the debtor restaurants Fremont Gateway, Inc. and Bishop Ranch Gateway, Inc.” (Moving P&A at 3:23-25.) The claim of alter ego is the entire claim against Defendant Lee. Establishing the “issue” that he is the alter ego of the corporations is identical to a terminating sanction. Plaintiff’s argument that “the documents sought and interrogatories propounded would have proved it” (Moving P&A at 3:25-26) is unsupported. The interrogatories ask about amounts of revenue and deposits to June Jang’s bank account. Those facts alone do not prove an alter ego relationship.

 

·         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 TERMINATING OR ISSUE SANCTION AGAINST HYEONG GEON LEE BY N.A. SALES COMPANY INC

 

 

·         Defendant Hyeong Geon Lee is ordered to appear, in order to address the concerns raised by the Supplemental Declaration of Brian Song ¶¶ 8-22.

 

_____________________________________________________________________


9:00

5

CIV 527708       GARY RICHARD SALETTA, ET AL. VS. TDM TILING INC., ET

                 AL.

 

 

GARY RICHARD SALETTA                  MICHAEL C. MILLER

TDM TILING INC.                       KEVIN P. MCCARTHY

 

 

HEARING ON APPLICATION FOR RIGHT TO ATTACH ORDER/WRIT OF ATTACHMENT AS TO TDM TILING INC. FILED BY JAMIE LYNNE BUBIER AND GARY RICHARD SALETTA

 

 

·         The Request for Judicial Notice by Plaintiff Gary Richard Saletta is GRANTED pursuant to Evidence Code §452(g), (h).

 

·         Plaintiff Gary Richard Saletta’s unopposed Applications for Writs of Attachment are GRANTED pursuant to CCP §483.010(a),(c) as to Defendant TDM Tiling, Inc. and Defendant Anthony Della Morte. The attachments are granted in the amount of $150,000.00 which includes the readily ascertainable principal of $100,000.00, pre-judgment interest of $11,376.48, $35,000.00 in attorney’s fees and costs of $3500.00. Plaintiff is required to post an undertaking in the amount of $10,000.00 pursuant to CCP §489.220(a).

 

·         Applicant 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

6

CIV 528506       MICHAEL GAO KUMAR VS. TANFORAN PARK SHOPPING CENTER

                   LLC

 

 

MICHAEL GAO KUMAR                     DANIEL R. STERRETT

TANFORAN PARK SHOPPING CENTER         SONIA C. MERIDA

 

 

MOTION FOR SUMMARY JUDGMENT AS TO COMPLAINT of MICHAEL GAO KUMAR FILED BY TANFORAN PARK SHOPPING CENTER LLC

 

 

·         The Motion for Summary Judgment by Defendant Tanforan Park Shopping Center is DENIED. The Defendant’s burden on their Summary Judgment Motion pursuant to CCP §437c(p)(2) is to prove that a cause of action has no merit by showing that one or more elements of the cause of action cannot be established or that they possess a complete defense to that cause of action. Defendant asserts three defenses to the complaint: recreational immunity, primary assumption of the risk and a lack of legal cause.

 

·         Defendant has supported these defenses with a separate statement including 10 material facts. Facts 9 and 10 are not supported by any evidence. Their sole support is “common sense.” It should be noted, that the Defendant did not request that the Court take judicial notice, pursuant to Evidence Code §452(g) of any facts or propositions that are of such common knowledge that they cannot reasonably be the subject of dispute.

 

·         Regarding the defense of recreational immunity, Defendant has presented insufficient facts to establish that they qualify for immunity under Civil Code §846. Civil Code §846 defines a recreational purpose as including fishing, hunting, camping, water sports, hiking, spelunking, sport parachuting, riding, snowmobiling, and all other types of vehicle you were writing, rock collecting, sightseeing, picnicking, nature study, nature contacting, recreational gardening, gleaning, hang gliding, private noncommercial aviation activities, winter sports and viewing or enjoying historical, archaeological, scenic, natural or scientific sites. There is nothing in the statute that appears to include children’s play areas in commercial shopping centers. Defendant has not demonstrated that they are not covered by Health & Safety Code §115725.

 

·         As to the defense of primary assumption of the risk, Defendant has provided insufficient authority and evidence to support its argument that primary assumption of the risk applies to a 5-year-old child climbing on playground equipment. Further, Defendant has not raised primary assumption of the risk as an affirmative defense in their original answer. Although Defendant has been granted permission to file an amended answer, as of April 24, 2015, they had yet to file the amended complaint that includes an affirmative defense for assumption of the risk.

 

·         Finally with regard to proximate cause, Defendant has provided insufficient authority and evidence to support its argument that the Plaintiff’s mother committed an intervening act that was not reasonably foreseeable so that Defendant’s conduct cannot be deemed the legal or proximate cause. Causation is generally a question of fact to be determined by the jury, unless as a matter of law, the facts admit of only one conclusion. [Ortega v. Kmart Corporation (2001) 26 Cal 4th 1200, 1205-1206]. There are insufficient facts presented by defendant to support only one conclusion regarding causation.

 

·         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 Joseph C. Scott, Department 25.

 

_____________________________________________________________________


9:00

7

CIV 529706       STEPHEN DELLINGER VS. CALTRAIN, ET AL.

 

 

STEPHEN DELLINGER                     ALLEN J. CAPELOTO

CALTRAIN                              ALEXANDRA V. ATENCIO

 

 

DEMURRER TO COMPLAINT of DELLINGER BY CALTRAIN AND PENINSULA CORRIDOR JOINT POWERS

 

 

·         Continued to May 12, 2015 by stipulation.

 

_____________________________________________________________________


9:00

8

CIV 532675       STEVE HARTH VS. CALIFORNIA SIERRA EXPRESS, INC.

 

 

STEVE HARTH                           ELLIS ROSS ANDERSON

CALIFORNIA SIERRA EXPRESS, INC.       DANE ANDERSON

 

 

MOTION TO STAY OR DISMISS ACTION BY CALIFORNIA SIERRA EXPRESS, INC.

 

 

·         Continued to May 5, 2015 at 9:00 a.m.

 

 

DEMURRER TO COMPLAINT of STEVE HARTH BY CALIFORNIA SIERRA EXPRESS, INC.

 

 

·         Continued to May 5, 2015 at 9:00 a.m.

 

_____________________________________________________________________


9:00

9

CIV 533128       PORT & NOYE, LLC. VS. R. FENTON

 

 

PORT & NOYE, LLC                      ERIN M. SCHARG

R. FENTON

 

 

PETITION FOR APPROVAL OF TRANSFER OF STRUCTURED SETTLEMENT PAYMENT RIGHTS

 

 

·         Petitioner’s unopposed Petition for Approval of Structured Settlement Payment Rights is GRANTED. The transfer of the structured settlement payment rights [$41,200.00] does appear fair and reasonable given the amount to be paid for those rights [$22,250.00]. The amount to be received is 54% of the total value of the payments transferred and 58% of the discounted present value of the payments [$38,049.61]. This transfer appears to be in the best interests of the payee.

 

·         Petitioner 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

CLJ 529171       IN RE: $2,015.00

 

 

DISTRICS ATTORNEY'S OFFICE            DISTRICT ATTORNEY'S OFFICE

TORY STONE                            PRO/PER

 

 

MOTION FOR ORDER THAT REQUESTS FOR ADMISSION BE DEEMED ADMITTED AND FOR MONETARY SANCTIONS BY THE PEOPLE OF THE STATE OF CALIFORNIA

 

 

·         The unopposed Motion for Order Deeming Facts Admitted by Plaintiff People of the State of California is GRANTED pursuant to CCP § 2033.280. All of those matters set forth in Plaintiff’s Request for Admissions, Set One, dated December 12, 2014, are hereby deemed admitted.

 

·         Plaintiff’s request for Sanctions is also granted pursuant to CCP §§ 2023.010(d) and 2033.280(c).  Interested Party Tory Stoneshall pay Plaintiff a total of $175.00 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.

 

_____________________________________________________________________
 

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, April 28, 2015

 

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 521687       TINA MARIE HOLEMAN VS. ENA MARIA LAL, ET AL.

 

 

TINA MARIE HOLEMAN                    DAVID W. WESSEL

ENA MARIA LAL                         BRIAN J. MCSHANE

 

 

MOTION FOR CONTINUANCE OF JUNE 29, 2015 TRIAL BY UNITED PARCEL SERVICE, INC.

 

 

·         For good cause shown, the Motion to Continue is GRANTED.  The current jury trial date of June 29, 2015 is VACATED, and a new jury trial date of September 21, 2015 at 9:00 a.m. is set.  The Mandatory Settlement Conference currently set for June 11, 2015 at 1:30 p.m. is VACATED and reset to September 8, 2015 at 9:30 a.m.  Discovery deadlines will reset based on the new trial date.  Moving party, Defendant United Parcel Service, Inc., to provide notice of this order to all parties.

 

_____________________________________________________________________


9:00

2

PRO 123880       ESTATE OF VIDYAGAURI KANTILAL KHATRI

 

 

VIDYAGAURI KANTILAL KHATRI

 

 

MOTION TO CONTINUE TRIAL DATE FILED BY PRADEEP KANTILAL KHATRI

 

 

·         For good cause shown, the Motion to Continue is GRANTED.  The current Jury Trial date of June 29, 2015 is VACATED, and a new jury trial date of November 2, 2015 at 9:00 a.m. is set.  The Mandatory Settlement Conference currently set for June 18, 2015 at 9:30 a.m. is VACATED and reset to October 20, 2015 at 1:30 p.m.  Discovery deadlines will reset based on the new trial date. Moving party, Petitioner PRADEEP KANTILAL KHATRI, to provide notice of this order to all parties.

 

_____________________________________________________________________

 

 

 

 

 


POSTED:  3:00 PM

 

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