November 23, 2017
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 JONATHAN E.KARESH

Department 20

 

400 County Center, Redwood City

Courtroom 8C

 

Tuesday, November 21, 2017

 

If you plan to appear on any case on this calendar,

 you must call (650) 261-5019 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

Line: 1

17-CIV-02956     MENA INVESTMENTS, INC. vs. ERNESTO DE LEON, et al.

 

 

MENA INVESTMENTS, INC.                 BENJAMIN C. GRAVES

ERNESTO DE LEON                        Pro/PER

 

 

DEFENDANT’S MOTION TO VACATE DEFAULT

TENTATIVE RULING:

 

The Motion to Vacate Defendant’s Default is GRANTED.  Defendant shall file a responsive pleading within 10 days of service of the notice of entry of this order.

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10.  If the tentative ruling is uncontested, prevailing party is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order is to be submitted directly to Judge Jonathan E. Karesh, Department 20.

 

 



9:00

Line: 2

17-CIV-03591     SAN MATEO COUNTY TRANSIT DISTRICT vs. MICHAEL ANDREW

                   BUENROSTRO, et al.

 

 

SAN MATEO COUNTY TRANSIT DISTRICT       MICHAEL B. MCNAUGHTON

FIDELITY NATIONAL TITLE COMPANY         PRO/PER

 

 

PLAINTIFF’S MOTION FOR ORDER OF POSSESSION

TENTATIVE RULING:

 

The Motion for Prejudgment Possession is GRANTED.  Plaintiff has provided evidence sufficient to establish that it is entitled to take the property by eminent domain and that it has deposited the amount of probable compensation with the State Treasurer. 

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10.  If the tentative ruling is uncontested, prevailing party is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order is to be submitted directly to Judge Jonathan E. Karesh, Department 20.

 

 



9:00

Line: 3

17-CIV-03592     SAN MATEO COUNTY TRANSIT DISTRICT vs. DAYTON HUDSON

                   CORPORATION, et al.

 

 

SAN MATEO COUNTY TRANSIT DISTRICT       MICHAEL B. MCNAUGHTON

TARGET CORPORATION                     PRO/PER

 

 

PLAINTIFF’S MOTION FOR ORDER OF POSSESSION

TENTATIVE RULING:

 

The Motion for Prejudgment Possession is GRANTED.  Plaintiff has provided evidence sufficient to establish that it is entitled to take the property by eminent domain and that it has deposited the amount of probable compensation with the State Treasurer. 

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10.  If the tentative ruling is uncontested, prevailing party is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order is to be submitted directly to Judge Jonathan E. Karesh, Department 20.

 

 



9:00

Line: 4

17-CIV-03593     SAN MATEO COUNTY TRANSIT DISTRICT vs. IDEAL CHARTER

                   PROPERTIES, LLC, et al.

 

 

SAN MATEO COUNTY TRANSIT DISTRICT       MICHAEL B. MCNAUGHTON

IDEAL CHARTER PROPERTIES, LLC           TREVOR L. ROSS

 

 

PLAINTIFF’S MOTION FOR ORDER OF POSSESSION

TENTATIVE RULING:

 

The case is ordered OFF CALENDAR at the request of the moving party.

 



9:00

Line: 5

17-CIV-03861     JASMEET KAUR DEOL vs. BRAND MOTORS, et al.

 

 

JASMEET KAUR DEOL                      JASPREET S. TIWANA

BRAND MOTORS                           Monika P. Lee

 

 

DEFENDANT’S MOTION TO SET ASIDE DEFAULT

TENTATIVE RULING:

 

The unopposed Motion for Relief from Default filed by Defendant Brand Motors is GRANTED.

 

The undisputed facts establish that the Chief Financial Officer of Defendant Brand Motors, LLC, Sevinj Mehdiayli, negotiated a settlement agreement with Plaintiff’s counsel providing for return of the vehicle and that Mr. Mehdiayli reasonably believed that the proposed settlement agreement would be executed promptly, and therefore that no responsive pleading needed to be filed with the court.  On these grounds, the court exercises its discretion to GRANT the motion for relief from default pursuant to the public policy favoring resolution of disputes on the merits.

 

The alternative grounds for relief asserted by Defendant, that the court lacks jurisdiction due to a defect in service of the summons and complaint, is incorrect.  No motion to quash has been filed with the court, and the filing of the instant motion constitutes a general appearance by defendant that waives any defect in service of the summons and complaint.

 

Defendant is ordered to file the proposed Answer within ten days after service of notice of entry of order granting the motion to set aside default.

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10.  If the tentative ruling is uncontested, prevailing party is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order is to be submitted directly to Judge Jonathan E. Karesh, Department 20.

 



9:00

Line: 6

17-CIV-04138     JANE DOE vs. ANDREW CONRU

 

 

JANE DOE                               ANDREW G. WATTERS

ANDREW CONRU                           PRO/PER

 

 

PLAINTIFF’S MOTION TO BE RELIEVED AS COUNSEL

TENTATIVE RULING:

 

The Motion to be Relieved as Counsel of Record is GRANTED. 

 

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 provide notice thereof to the client as required by law and the California Rules of Court.  The order is to be submitted directly to Judge Jonathan E. Karesh, Department 20. 

 



9:00

Line: 7

17-CIV-04548     FIRST NATIONAL BANK OF NORTHERN CALIFORNIA vs.

                     STEPHEN GENTILE

 

 

FIRST NATIONAL BANK OF NORTHERN CALIFORNIA   DENNIS D. MILLER,

stephen gentile                             pro/per

 

 

 

 

PLAINTIFF’S Petition to CONFIRM arbitration AWARD AGAINST STEPHEN GENTILE

TENTATIVE RULING:

 

Plaintiff First National Bank of Northern California’s unopposed Petition to Confirm Arbitration Award is GRANTED.  Plaintiff’s moving and supporting papers satisfy the requirements of Code Civ. Proc. Sect. 1285 et. seq.  The June 22, 2017 Final Award in favor of Plaintiff and against Defendant Stephen Gentile is confirmed.  Plaintiff is also awarded the requested $1,050 in attorney’s fees and $629 in costs incurred in filing the present Petition, plus statutory interest from June 22, 2017 (the date of the Final Award).  Plaintiff may prepare and submit a proposed Judgment for the Court’s signature, consistent with this Order.        

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10.  If the tentative ruling is uncontested, prevailing party is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order is to be submitted directly to Judge Jonathan E. Karesh, Department 20.

 



9:00

Line: 8

CIV464944     LORAINE WONG ET AL. VS. RICHARD TOM

 

 

LORAINE WONG                           MARK EPSTEIN

RICHARD TOM                            BENNETT, SAMUELSEN, REYNOLDS

 

 

DEFENDANT’S motion to quash SUBPOENAS AND FOR PROTECTIVE ORDER, AND REQUEST FOR SANCTIONS FROM PLAINTIFF’S AND their COUNSEL OF RECORD

TENTATIVE RULING:

 

By stipulation and order, the Motion to Quash will be continued to January 3, 2018 at 9:00 a.m. on the Law and Motion Calendar.

 



9:00

Lines: 9 & 10

CIV521227     CARROLL CUSTOM HOMES VS. 138 ALMENDRAL LLC ET AL.

 

 

CARROLL CUSTOM HOMES INC.              RICHARD M. KELLY

138 ALMENDRAL LLC                      E. DAVID MARKS

 

 

9. LEGACY ROOFING AND WATERPROOFING, INC. AND DUTCH MASTER, INC.’S motion for good faith settlement

TENTATIVE RULING:

 

Moving party is to appear (either in person or via CourtCall) to address why these motions are not moot in light of the notice of settlement of the entire case filed on November 8, 2017. 

 

 

10. LEGACY ROOFING AND WATERPROOFING, INC. AND DUTCH MASTER, INC.’S motion for good faith settlement

tenative ruling:

 

Moving party is to appear to address why these motions are not moot in light of the notice of settlement of the entire case filed on November 8, 2017. 

 

 



9:00

Line: 11

CIV524843     ELIZABETH KARNAZES VS. JOHN FERRY, ET AL.

 

 

ELIZABETH KARNAZES                     Pro/per

JOHN FERRY                             RANDOLPH S. HICKS

 

 

motion to compel PLAINTIFF AND CROSS-DEFENDANT ELIZABETH M.B. KARNAZES TO PROVIDE FURTHER RESPONSES TO CROSS-PLAINTIFF JOHN E. FERRY’S FORM INTERROGATORIES, SET ONE

TENTATIVE RULING:

 

The Motion of Cross-Plaintiff John Ferry (“Cross-Plaintiff”) to Compel Further Responses to Form Interrogatories, Set One, from Cross-Defendant Elizabeth Karnazes (“Cross-Defendant”), is GRANTED.  Cross-Defendant is to provide further response, without objections, to form interrogatory no. 15.1, by December 11, 2017.

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10.  If the tentative ruling is uncontested, prevailing party is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order is to be submitted directly to Judge Jonathan E. Karesh, Department 20.

 

 



9:00

Line: 12

CIV536958     TIMOTHY CHEY VS. FACEBOOK, INC.

 

 

CHEY, TIMOTHY                          GLADSTEIN, AARON M

facebook, inc.                         julie e. schwartz

 

 

DEFENDANT’S motion FOR sanctionS AGAINST PLAINTIFF TIMOTHY CHEY, D/B/A RIVERRAIN PRODUCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 128.5

TENTATIVE RULING:  

 

The Motion for Sanctions brought by defendant Facebook, Inc. is denied.  The request for sanctions made by plaintiff Timothy Chey dba Riverrain Productions, is denied. 

 

The law authorizes a court to sanction parties or attorneys for “bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.”  (CCP § 128.5.)  The filing and service of a complaint falls within the definition of an “action or tactic.”  (CCP § 128.5(b)(1).)  The court does not find the filing of the trade libel claim contained in the Fourth Amended Complaint to be in bad faith, frivolous, or intended solely to cause unnecessary delay for the reasons set forth below.  

 

Bad Faith.  The allegation in question reads as follows:

 

Plaintiff is informed and believes, and based thereon alleges that at least some of the Consumers who received the interstitial messages also read Facebook’s publicly available Link Shim Explanation at or around the time they received the interstitial message. 

 

(Fourth Amended Complaint, ¶ 42, emphasis added.)  While this allegation is somewhat vague, it does not appear to be in bad faith.  Plaintiff has a belief that potential consumers of his movies were deterred from seeing those movies because he received correspondence from such consumers.  (Fourth Amended Complaint, ¶ 25.)  He appears to be trying to allege a viable cause of action for the injury that that confusion may have caused him.  Prior to the filing of the Fourth Amended Complaint, this court considered the legal standard for alleging a trade libel claim in this context and ruled that the “interstitial” message, standing alone, was insufficient to constitute a false statement of fact, but that if the “interstitial” message was read in tandem with the blog post that explains them (the blog posts explain that the interstitial message pops-up when a URL is identified as potentially malicious) then it could potentially be actionable on a trade libel theory.  (See Minute Order (07/10/17).)  Plaintiff does not have access to the computer data that might identify which users have accessed which advertisements, whether those users received interstitial messages, and whether those users then took the time to look up the meaning of those messages on Facebook’s blog.  It appears that Plaintiff made the “information and belief” allegation contained in Paragraph 42 of the Fourth Amended Complaint in an effort to meet this concern. 

 

Ultimately, the information at issue appears to be more readily available to Facebook, and the “doctrine of less particularity” can sometimes be invoked to lower the pleading standard where a defendant is in a unique position of having greater access to the information.  (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 570-571, citing Okun v. Superior Court (1981) 29 Cal.3d 442, 458.)  While the court expressly declines to address whether that doctrine applies here, and expressly declines to express any view as to whether the allegation at issue would have been sufficient to survive demurrer, for purposes of determining whether to issue sanctions the standards set forth in CCP § 128.5, that there is some colorable theory upon which the allegation can be made is sufficient to prevent a finding that the allegation was in bad faith. 

 

Frivolousness.  As set forth above, there is a plausible wrong underlying the operative facts of this case.  Plaintiff has already had two causes of action survive demurrer (a cause of action for breach of the implied covenant of good faith and fair dealing and a cause of action for rescission/restitution), indicating he has at least some viable claims in this case and is trying to properly assert the remaining claims he may have.  While the “information and belief” allegation at issue may be insufficient, it does not appear to be entirely frivolous. 

 

Sole Intent to Delay.  As set forth above, Plaintiff’s filing of the allegation containing the trade libel cause of action appears to be based on at least a possibility of merit.  As such, it does not appear that the intent of this filing was solely to delay, but rather an attempt to stitch together some allegation that could possibly survive the scrutiny of another demurrer. 

 

Because the facts of the instant case do not establish the necessary bad faith, frivolousness, or intent to delay, the “safe harbor” issue need not be reached in order to decide this motion. 

 

Plaintiff’s Request for Sanctions.  Plaintiff requests sanctions in his opposing brief, as is permitted under CCP § 128.5(c).  However, the court finds that Facebook’s motion was not frivolous, was not in bad faith, and was not intended to delay.

 

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.

 

 



9:01

Line: 13

16-UDL-00076     CAPITAL ONE, N.A. vs. OSCAR BRAUN, et al.

 

 

CAPITAL ONE, N.A.                      ADAM N. BARASCH

OSCAR BRAUN                            DAVID G. FINKELSTEIN

 

 

JEANETTE BRAUN’S MOTION TO QUASH SERVICE OF SUMMONS

TENTATIVE RULING:

 

The Motion to Quash is DENIED for lack of proof that it was served on plaintiff in compliance with CRC 3.1327 and CCP Sections 1167.4 and 1013.  Mail service of the moving papers on November 14, 2017 did not provide plaintiff the notice required by CCP Sections 1167.4 and 1013. 

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10.  If the tentative ruling is uncontested, prevailing party is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order is to be submitted directly to Judge Jonathan E. Karesh, Department 20.

 


 

 

 

 

 


POSTED:  3:00 PM

© 2017 Superior Court of San Mateo County