August 26, 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 susan irene etezadi

Department 18

 

400 County Center, Redwood City

Courtroom 2M

 

Tuesday, August 23, 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

 

LINE 1

CIV538986

JOHN GIOSSO, ET AL. VS. KELLY A. CARTER

 

 

JOHN GIOSSO

ALBERT L. THUESEN, III

KELLY A. CARTER

Michael A. Bracco

 

 

Motion to Strike

TENTATIVE RULING:

 

The Motion of Defendant Kelly A. Carter (“Defendant”) to Strike Portions of Plaintiffs John Giosso’s and Patricia Giosso’s Complaint, is GRANTED. 

 

On a motion to strike brought pursuant to Code of Civil Procedure section 435, the court may strike out any irrelevant, false or improper matter inserted in any pleading, or strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule or an order of the court.  (CCP § 436.)  Plaintiff’s second cause of action states that “Plaintiff(s) reserve the right to seek punitive damages should the discovery of facts warrant same under California law.”  (See Complaint, p.5, ¶14.)  Such allegation is both improper and irrelevant. 

 

First, this reservation is improper because Plaintiffs admit that they cannot allege facts at this time to support a request for punitive damages, but contend only that they suspect Defendant may have illegally been on her cell phone and therefore they may be able to allege facts to support malice in the future.  Plaintiffs however, must allege facts that support Defendant is guilty of oppression, fraud or malice to support a request for punitive damages.  (See Civil Code § 3294(a); see also Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 [“Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim.”].  Plaintiffs further have not cited to any authority that supports Plaintiffs are excused from alleging such facts simply by framing it as a “reservation” of the right to seek punitive damages instead of seeking punitive damages.

Second, this reservation is also irrelevant since Plaintiffs contend that they are not seeking punitive damages at this time.  In the event Plaintiffs discover facts that they believe support a request for punitive damages, Plaintiffs may then seek leave to amend the complaint to request such damages.

Accordingly, page 5, paragraph 14, of the Complaint, is hereby STRICKEN.  This ruling is without prejudice to Plaintiffs bringing a motion for leave to amend if Plaintiffs subsequently discover facts they contend would support a request for punitive damages.

Defendant is to file and serve an answer to the Complaint, as stricken, within ten days from service of notice of entry of order.

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, 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 Susan Irene Etezadi, Department 18, for the Court’s signature.

 

 

 

 

 

 

 

9:00

 

LINE 2

 

CIV212190

DALY CITY SERRAMONTE CENTER LLC. VS. J. REFLECTION, INC.

 

 

DALY CITY SERRAMONTE CENTER, LLC

ERNIE ZACHARY PARK

J. REFLECTION, INC.

 

 

 

MOTION FOR ENFORCING SETTLEMENT AGREEMENT AND VACATING PRIOR NOTICE OF SETTLEMENT

TENTATIVE RULING:

 

 

Plaintiff’s Unopposed Motion for Order Enforcing Settlement Agreement and Vacating the Prior Notice of Settlement is GRANTED IN PART.  Although Plaintiff’s motion references Code Civ. Proc. Section 664.6, Plaintiff never filed a motion under that statute seeking entry of judgment pursuant to the terms of the parties’ Settlement Agreement.  Further, by its own terms, the Settlement Agreement is now void.  However, the Court agrees the case should be reopened so that Plaintiff can pursue its damages for Defendant’s breach of the Lease.  The Notice of Settlement filed March 25, 2016 was expressly conditional on Defendant making the required payments per the parties’ Settlement Agreement, which Defendant apparently has not done.  The Settlement Agreement provides that in the event of a breach, after a 5-day notice period, the Agreement “shall be of no further force or effect and Plaintiff shall be entitled to seek all damages caused by the Defendant’s breach of the Lease.”  Defendant has not opposed the present motion.  Accordingly, the case shall be reopened and Plaintiff permitted to seek damages for Defendant’s alleged breach of the Lease.  The Court notes there is no proof of service on file for Plaintiff’s “First Amended Complaint for Breach of Lease,” filed March 8, 2016.

 

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, 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 Susan Irene Etezadi, Department 18, for the Court’s signature.

 

 

 

 

 

9:00

 

LINE 3

CIV533437

ORA COLBERT-JOHNSON VS. DREW HEALTH FOUNDATION, INC.

 

 

ORA COLBERT-JOHNSON

Y. ERNEST HSIN

DREW HEALTH FOUNDATION, INC.

STEPHEN M. VERNON

 

 

MOTION FOR ORDER ENFORCING SETTLEMENT AGREEMENT AND ENTER JUDGMENT

TENTATIVE RULING:

 

At the request of defendant and moving party, this matter is taken off calendar.

 

 

9:00

 

LINE 4

16-CIV-00578

PENINAH KANIU Vs.DELEON HILL

 

 

PENINAH KANIU

Brian W. Newcomb

DELEON HILL

 

 

 

Petition to Confirm Arbitration Award

TENTATIVE RULING:

 

The petition is DENIED without prejudice for failure to provide proof that it was served in the manner required by CCP §1290.4. 

    

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, 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 Susan Irene Etezadi, Department 18, for the Court’s signature.

 

 

 

 

 

 

 

 

9:00

 

LINE 5

CIV528707

FLETCHER HYLER, ET AL. VS. JAMES IRIZARRY

 

 

FLETCHER HYLER

PHILIP T. PRINCE

JAMES IRIZARRY

EDWARD J. RODZEWICH

 

 

MOTION TO BE RELIEVED AS COUNSEL

TENTATIVE RULING:

 

Good cause appearing, the unopposed motion of attorneys Philip T. Prince and E. Gerard Mannion to be relieved as counsel for Plaintiffs is GRANTED.

 

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, 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 Susan Irene Etezadi, Department 18, for the Court’s signature.

 

 

 

 

 

 

 

 

9:00

 

LINE 6

CIV522042

JAMES IRIZARRY VS. TERRACE ASSOCIATES, INC. ET AL.

 

 

IRIZARRY, JAMES

DANIEL RAY BACON

TERRACE ASSOCIATES, INC.

NANCY J. DEPASQUALE

 

 

Motion to Reopen Discovery to Permit one deposition

TENTATIVE RULING:

 

The Motion is Granted. The scheduling and noticing of the depositions of witnesses Recto and Everett were a departure from the established practice between the parties regarding all other depositions in this case. Although Mr. Sheng was not statutorily required to serve Mr. Martin’s office with the Notices of Deposition, the court concludes that under the circumstances and history of this case, it was excusable neglect that Plaintiff’s counsel was unable to appear at the deposition of Mr. Everett.

 

The parties shall meet and confer between themselves and the nonparty witness to schedule the deposition of the witness. The deposition shall occur not later than September 30, 2016, or a later date agreed upon by the parties or by court order upon a showing of good cause. 

 

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, 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 Susan Irene Etezadi, Department 18, for the Court’s signature.

 

 

 

9:01

 

Line 7

16-UDL-00090

RITA ADAMS vs. RONALD KINO, et al.

 

 

RITA ADAMS

Charles J. Katz

RONALD KINO

TREVOR L. ROSS

 

 

MOTION For Judgment on Pleadings

TENTATIVE RULING:

 

Pursuant to Stipulation and Order entered on August 18, 2016, this matter is continued to September 2, 2016, at 9:00 a.m., in the Law and Motion Department.

 

 

 

 

 

 

 


POSTED:  3:00 PM

 

 

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