November 28, 2014
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.

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In the Superior Court of the State of California

In and for the County of San Mateo

 

Law and Motion Calendar

Judge: Honorable ELIZABETH K. LEE

Department 17

 

400 County Center, Redwood City

Courtroom 2M

 

NOVEMBER 25, 2014

 

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 497024       ARATA EQUIPMENT COMPANY VS. RECOLOGY, INC.

 

 

ARATA EQUIPMENT COMPANY               BENJAMIN A. JOHNSON

RECOLOGY, INC.                        JONATHAN I. CORONEL

 

 

MOTION FOR SUMMARY JUDGMENT AS TO FOURth Amended COMPLAINT of

ARATA EQUIPMENT COMPANY BY RECOLOGY, INC.

 

 

·         Recology's request for Judicial Notice is GRANTED.

 

·         Recology’s request for Summary Judgment is DENIED.

 

·         As to issue #1, Recology has not met its burden of showing that Arata cannot show that the contract was disrupted.

 

·         Recology argues that as this Court previously overruled a Demurrer to this Cause of Action on the basis of the allegation that the agreement was terminated, Arata must show termination of the agreement, and merely showing disruption is insufficient.  This argument cites to UMF #24, which cites to the order regarding Recology's Demurrer to the 3rd Amended Complaint.  In overruling the Demurrer to the 1st Cause of Action, the Court noted that Plaintiff had sufficiently alleged a claim for interference with contract by alleging Recology persuaded Lodal to terminate the contract.  This Order, which merely commented upon what had been pled and whether it was sufficient, does not require the Plaintiff to prove a termination, as opposed to a mere disruption, of the contract in order to prevail on this Cause of Action.

 

·         Recology also argues that during his deposition, Don Arata confirmed that Arata's claim is based on the alleged termination of the agreement "in its entirety".  Recology cites to UMF #25, which cites to Arata's deposition testimony that the pending claim against Recology is that, as a result of Recology's conduct, Lodal terminated the distribution agreement "in its entirety".  Here, it appears that Mr. Arata was testifying that the agreement was terminated in its entirety and not that the entirety of his claim was based upon the termination of the agreement.

 

·         Furthermore, the pleadings set the boundaries of the issues to be resolved at Summary Judgment.  Hutton v. Fid. Nat'l Title Co. (2013) 213 Cal.App.4th 486, 493. Here, the 4th Amended Complaint alleges Recology "intentionally disrupted and interfered with Arata's contractual relationship with Lodal” by intentionally inducing Lodal to sell direct to Recology and eliminating and terminating the Arata-Lodal contractual relationship.  It also alleges that as a proximate result of Defendants' conduct, the agreement was terminated. Thus, Plaintiff has pled, and may prove, both disruption and termination.

 

·         Recology argues that Lodal did not terminate the agreement.  UMF #4 cites to the provisions in the agreement regarding termination, including the provision of a notice of termination.  UMF #5 asserts Lodal has not terminated the agreement, citing to the declaration of Bernard Leger, Lodal's president, who stated that, at no time to the present had Lodal terminated the agreement.  UMF #6 asserts Lodal never provided Arata with the required notice of termination.  Lodal never refused to fulfill orders by Arata (UMF #8).  After 9/18/08, Arata filled orders for 3 Lodal vehicles for Recology and placed over $47,000 of parts orders with Lodal on behalf of at least 12 customers, including Recology.  (UMF 12, 13) In 2009, Arata decided not to cultivate existing or potential Lodal customers, made the decision not to try to continue to sell Lodal products and directed customers to purchase equipment directly from Lodal (¶14-17 Recology has met its burden of showing that the agreement was not terminated.

 

·         Recology argues that the only disruption alleged is the direct sales of equipment by Lodal to Recology and this court previously recognized that Lodal's direct sales to Recology did not constitute disruption of the agreement.  (UMF 22, 23.)  UMF #23 cites to Judge Joseph E. Bergeron's order in this case sustaining Recology's Demurrer to the 1st Cause of Action in the 2nd Amended Complaint with leave to amend which stated:

 

·         “The complaint fails to allege any disruption of the contractual relationship or, accordingly, any intentional act designed to induce a disruption of the relationship.  Lodal had a contractual right to sell directly to defendant Recology.  Although the direct sales disrupted plaintiff Arata's compensation under the agreement, they did not disrupt the contractual relationship between plaintiff Arata and Lodal, since Plaintiff Arata continued to have a nonexclusive right to distribute Lodal's products”.

 

·         “Like many other intermediate rulings prior to final Judgment, an order overruling or sustaining a Demurrer is not res judicata, and the trial Judge may reconsider it, decide that it was erroneous, and make a different order.” 5 Witkin, Cal. Proc. 5th (2008) Plead, §984.  Plaintiff was given leave to amend and the court subsequently overruled the Demurrer to the 3rd Amended Complaint, noting  Plaintiff had sufficiently alleged a claim for interference with contract by alleging Recology persuaded Lodal to terminate the contract. 

 

·         Recology relies upon Judge Joseph E. Bergeron’s order to show that there was no disruption.  However it has not presented any evidence showing that Arata cannot show that the contract was disrupted.  Therefore, Recology has not met its burden as to this issue. 

 

·         As to issue #2, Recology has not met its burden.  It has not shown that Recology was a party to the Arata/Lodal agreement or that the Arata/Lodal agreement was some sort of subcontracted depended upon Recology's performance under a contract with Arata.  Therefore, Pm Grp, Inc. v. Steward (2007) 154 Cal App 4th 55 is inapplicable.

 

·         Recology asserts that, beginning in at least 1988, it had begun purchasing Lodal vehicles/parts from Arata (UMF #26), Arata/Lodal entered into their agreement in 2004 (UMF #27), Arata's sales area under the agreement was within Northern California (UMF #28), at the time Arata entered into the Arata/Lodal agreement, Recology was the only end-use customer of Lodal in California (UMF #29), Arata sold more than 250 Lodal vehicles, virtually all to Recology (UMF #30), Recology essentially comprised the entirety of Arata's business with Lodal (UMF #31) and Recology's purchases of truck/parts were necessary to make the distributorship agreement valuable to Arata (UMF #32).

 

·         While these UMF show that the majority of Arata's Lodal sales were to Recology and that Arata/Lodal most likely contemplated future sales to Recology, they do not show that Recology was a party to the Arata/Lodal agreement or that the Arata/Lodal agreement was some sort of subcontract dependent upon Recology's performance under a contract with Arata.  Therefore, Recology has not met its burden of showing that the factual situation here fits within the framework in PM Grp.

 

·         As to issue #3, Recology has not met its burden of showing that an independent wrongful act is required.  Recology has not set forth any undisputed material facts showing that the Arata/Lodal contract was at will, invalid or unenforceable.  Thus there is no impediment to Arata making a claim for intentional interference with contractual relations and no requirement that Arata show an independent wrongful act.

 

·         An element of the Cause of Action for interference with prospective economic advantage is an independent wrongful act.  Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal. 4th 376.

 

·         Recology argues that where the alleged interference is primarily an interference with a mere expectancy of contractual performance in the future, courts have required the additional element of an independent wrongful act.  Recology essentially seeks to have Arata prove an element that is not an element of this Cause of Action. Woods v. Fox Broad. Sub., Inc. (2005) 129 Cal. App. 4th 344, 349fn6 stated “Della Penna's independent wrongful act requirement applies to only claims for interference with prospective economic advantage, not to claims for interference with an existing contract."  “Contrary to respondents' argument, ‘[w]rongfulness independent of the inducement to breach the contract is not an element of the tort of intentional interference with existing contractual relations ....’ [Citation] Tuchscher Dev. Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal. App. 4th 1219, 1239.

 

·         Recology cites to Reeves v. Hanlon (2004) 33 Cal. 4th 1140, 1148, which held that the tort of interference with contractual relations could be predicated upon interference with an at-will employment contract.  The Court noted the state's public policy that it was not a tort to hire the employee of another unless unfair methods were involved. It also noted that the economic relationship between parties to contracts that are terminable at will is distinguishable from the relationship between parties to other legally binding contracts:  Where a party to the contract is free to terminate the contractual relationship when he chooses, any interference that induced the contract’s termination was primarily an interference with the future relation between the parties, to which Plaintiff had no legal assurance.

 

·         It does not appear that Reeves applies to this case as the contract at issue was a legally binding contract and not an at-will employment contract.

 

·         Recology cites to 3 federal cases (all unreported), which it claims have recognized that Reeves stands for the broad proposition that where Plaintiff has no legal assurance of performance, it must prove that Defendant's interference with Plaintiff's expectation involved an independently wrongful act. In Transcription Commc'ns Corp. v. John Muir Health, No. C 08-4418 TEH, 2009 WL 666943, at *9 (N.D. Cal. Mar. 13, 2009), the court found that as the contract was terminable upon notice, any interference with the relationship between the contracting parties was more properly viewed as interference with prospective economic advantage, not the contract itself and, since the contract was terminable upon notice, a claim for interference with the contract is improper as a matter of law.  Similarly, in Lovesy v. Armed Forces Ben. Ass'n, No. C 07-2745 SBA, 2008 WL 696991, at *11 (N.D. Cal. Mar. 13, 2008), the Court found that Plaintiff’s claim for intentional interference with contract failed as a matter of law as the Agreements permitted either party to terminate them with or without cause, thereby making them “at-will” contracts.  Maritz Inc. v. Carlson Mktg. Grp., Inc., No. C 07-05585 JSW, 2009 WL 3561521, at *4 (N.D. Cal. Oct. 30, 2009) involved in a contract that was terminable at one party's sole discretion.  The Court noted "several courts including this district have held that one cannot maintain a claim for intentional interference with an at-will contract, even in the non-employment context."

 

·         Nor do any of the California cases Recology cites to support Recology’s argument.  In Bed, Bath & Beyond of La Jolla, Inc. v. La Jolla Vill. Square Venture Partners (1997) 52 Cal. App. 4th 867, the Court found that as the underlying contract was unenforceable, the Cause of Action for intentional interference with contractual relations failed, leaving Plaintiff with only a claim for interference with prospective economic advantage.  PMC, Inc. v. Saban Entm't, Inc. (1996) 45 Cal. App. 4th 579, 602, disapproved of by Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal. 4th 1134, 63 P.3d 937 held that when there is no enforceable contract, for whatever reason, the Plaintiff may only plead a cause of action for intentional interference with prospective economic advantage. In Tokuzo Shida v. Japan Food Corp. (1967) 251 Cal. App. 2d 864, a manufacturer had successive 1-year contracts with Plaintiff distributer. Defendant distributer persuaded the manufacturer not to renew its contract with Plaintiff, but to enter into an exclusive contract with it instead.  The court found the manufacturer did not breach the agreement by refusing to deal with Plaintiff after the termination date.  The appellate court reversed the judgment for Plaintiff as it appeared that it did not rest upon any damages sustained by competitive sales prior to the termination of the exclusive distributorship agreement.

 

·         There is no indication that Recology Demurred to this Cause of Action on the ground that Arata could not state a claim for interference with contractual relations because the Arata/Lodal contract was at-will or unenforceable or invalid.

 

·         UMF #33 asserts Arata would only affirm profits if it made the sales.  Other UMF asserted that Arata claimed Recology's 9/18/08 letter was a demand that Lodal sell parts/equipment to Recology directly (UMF #34-36) and, under the Arata-Lodal agreement, Lodal reserved the right to make direct sales to customers (UMF 37, 38).  Recology further asserts that the appellate Court affirmed this Court's granting of Summary Judgment on Arata's action for breach of contract against Lodal on the ground that the agreement gave Lodal the right to make direct sales (UMF #39, 40).  This court sustained Recology's Demurrer to Arata's claim for intentional interference with prospective economic advantage in the 3rd Amended and 4th Amendment Complaints because Arata failed to allege any independently wrongful act (UMF #41, 42).

 

·         Recology has not asserted any UMF showing that the Arata/Lodal contract was at will, invalid or unenforceable.  Thus, there would be no impediment to Arata making a claim for intentional interference with contractual relations and no requirement that Arata show an independent wrongful act.  Therefore, Recology has failed to meet its burden and Summary Judgment should be denied as to this ground.

 

·         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 Elizabeth K.  Lee, Department 17.

 

_____________________________________________________________________


9:00

2

CIV 514498       BERNARDO R. CARRERA, ET AL. VS. FREMONT INVESTMENT &

                   LOAN, ET AL.

 

 

BERNARDO R. CARRERA                   TIMOTHY L. MCCANDLESS

FREMONT INVESTMENT & LOAN

 

 

MOTION FOR JUDGMENT ON THE PLEADINGS BY WELLS FARGO BANK, N.A, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AND HSBC BANK USA, N.A

 

 

·         Defendants WELLS FARGO BANK, N.A.; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; and HSBC BANK USA, N.A., as Trustee for HOME EQUITY LOAN TRUST SERIES ACE 2006-HE1’s Motion for Judgment on the Pleadings is GRANTED.  Code Civ. Proc. § 438(c) provides that a defendant may move for judgment on the pleadings on the ground that the Complaint does not state facts sufficient to constitute a cause of action.  Section 438(g)(1) further provides that a party whose Demurrer was previously overruled may bring a subsequent motion for judgment on the pleadings on the same grounds, “provided that there has been a material change in applicable case law or statute since the ruling on the Demurrer.” 

 

·         The Court finds that there has been a material change in the applicable case law since Defendants’ Demurrer to First Amended Complaint was heard in August 2013.  Each of Plaintiffs’ remaining claims is premised on the allegation that their loan was transferred to a securitized trust after the trust’s closing date.  (FAC ¶¶ 95, 104-115.)  Based on the holding in Glaski v. Bank of America, N.A. (2013) 2013 WL 4037310, the Court overruled Defendants’ Demurrer to these causes of action.  Glaski stands for the proposition that under New York trust law, “a transfer of a deed of trust in contravention of the trust documents is ‘void, not merely voidable’, and, under California law, ‘a borrower can challenge an assignment of his or her note and deed of trust if the defect asserted would void the assignment.’”  Diunugala v. JP Morgan Chase Bank, N.A. (S.D. Cal. 2013) 2013 WL 5568737, at *8. 

 

·         Preliminarily, the Court notes that Plaintiffs provided no argument regarding the Glaski decision in their Opposition to Defendants’ motion.  Plaintiffs then appeared at the hearing on October 27, 2014 to contest the tentative ruling, apparently without having given notice to Defendants that they intended to do so.  The Court Ordered the parties to submit 5-page supplemental briefs discussing the Glaski decision, which they did.  However, Plaintiffs subsequently attempted to late-file an “Augmented Supplemental Brief” which is 23 pages long, in contravention of the Court’s Order.  Accordingly, Plaintiffs’ “Augmented Supplemental Brief” has not been considered.

 

·         Over the past two years, several Court of Appeal decisions have conflicted with the holding in Glaski.  In Jenkins v. JP Morgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, the plaintiff claimed that defendants did not have a secured interest in her home to foreclose upon, because of alleged noncompliance with the terms of the investment trust’s pooling and servicing agreement when her loan was purportedly pooled with other home loans and securitized.  Id. at 514.  The Jenkins court held, “As an unrelated third party to the alleged securitization, and any other subsequent transfers of the beneficial interest under the promissory note, [Plaintiff] lacks standing to enforce any agreements, including the investment trust's pooling and servicing agreement, relating to such transactions.  Furthermore, even if any subsequent transfers of the promissory note were invalid, Jenkins is not the victim of such invalid transfers because her obligations under the note remained unchanged.”  Id. at 515.  The Glaski decision ignores the principle that “a Plaintiff in a suit for wrongful foreclosure has generally been required to demonstrate [that] the alleged imperfection in the foreclosure process was prejudicial to the plaintiff’s interests.”  Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.256, 272.

 

·         Accordingly, Defendants’ Motion is granted on the ground that Plaintiffs have failed to state a valid claim under the “late transfer” theory set forth in Glaski. 

 

·         Plaintiffs’ Eighth, Eleventh, and Fourteenth Causes of Action further fail on the independent ground that tender has not been alleged.  “A mortgagor of real property cannot, without paying his debt, quiet his title against the mortgagee.”  Miller v. Provost (1994) 26 Cal.App.4th 1703, 1707.  The offer of tender must be of the amount borrowed.  Arnolds Management Corp. v. Eischen (1984) 158 Cal.App.3d 575, 578.  The plaintiff must (1) demonstrate a willingness to pay and (2) show the ability to pay.  In re Worcester (9th Cir. 1987) 811 F.2d 1224, 1231. 

 

·         Similarly, California law requires Plaintiff to allege tender of the amount of his indebtedness in order to maintain any cause of action for irregularity in the foreclosure procedure.  Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1109.  This requirement applies to claims “implicitly integrated” with the foreclosure sale – not merely claims that challenge the sale, but also those that seek damages related to the sale.  Karlsen v. American Sav. & Loan Assn. (1971) 15 Cal.App.3d 112, 121.  The plaintiff must (1) demonstrate a willingness to pay and (2) show the ability to pay.  In re Worcester (9th Cir. 1987) 811 F.2d 1224, 1231. 

 

·         To the extent that Plaintiffs attempt to state a claim by relying on allegations of predatory lending, conduct at loan origination, or fraud in the FAC, this argument is rejected.  The Court has already sustained, without leave to amend, the Demurrer to all Causes of Action that are not based on the holding in Glaski. 

 

·         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 Elizabeth K.  Lee, Department 17.

 

_____________________________________________________________________


9:00

3

CIV 517163       SHARON NOELE HARRIS VS. WELLS FARGO BANK, N.A.

 

 

SHARON NOELE HARRIS                   MATTHEW MELLEN

WELLS FARGO BANK, N.A.                MICHAEL RAPKINE

 

 

MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION OF ISSUES BY

WELLS FARGO BANK, N.A. AGAINST SHARON NOELE HARRIS

 

 

·         Defendant Wells Fargo Bank, N.A.’s Motion for Summary Judgment is continued to January 16, 2015. Defendant’s motion seeks Summary Judgment/Summary Adjudication as to the Plaintiff’s Second Amended Complaint. The Second Amended Complaint is the operative pleading in this action. The Second Amended Complaint was apparently filed while this matter was pending in the US District Court for the Northern District of California. When the case was remanded, nothing from the Federal Court’s file was sent back to the San Mateo County Superior Court. Nor is the Second Amended Complaint among the documents filed by Defendant in support of their Motion for Summary Judgment. Consequently, the Court has no way of knowing what the Seven Causes of Action consist of, what is contained in the pleadings, what allegations and facts are asserted, etc. Without the operative complaint, the Court has no way of knowing of whether Defendant has met its initial burden under CCP 437c(p)(2) of showing a complete defense to each Cause of Action [or that Plaintiff cannot establish an element thereof]. The Court is continuing this matter until such time as the operative Amended Complaint has been filed with this court, or a certified copy is provided by the Defendant.

 

·         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 Elizabeth K.  Lee, Department 17.

 

_____________________________________________________________________


9:00

4

CIV 519951       RUSSEL BLAIR, ET AL. VS. CANNERY ROW HOTEL

                   DEVELOPMENT VENTURE, LP, ET AL.

 

 

RUSSELL BLAIR                         DONALD R. WILD

CANNERY ROW HOTEL DEVELOPMENT VENTURE EDWARD D. BALDWIN

 

 

MOTION FOR DETERMINATION OF GOOD FAITH SETTLEMENT BY HD SUPPLY, INC.

 

 

·         Defendant HD Supply, Inc.’s Motion for Determination of Good Faith Settlement is DENIED pursuant to CCP § 877.6.  Defendant HD Supply failed to provide competent evidence supporting Plaintiff’s potential recovery or Defendant HD’s proportionate liability.  CCP § 877.6(b); Tech-Bilt, Inc. v. Woodward-Clyde Associates (1985) 38 Cal.3d 488, 502.  Where good faith is contested as it is here, the moving party must make a sufficient showing of all the Tech-Bilt factors with competent evidence.  City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1261; Greshko v. County of Los Angeles (1987) 194 Cal.App.3d 822, 834.

 

·         Whether a settlement is in good faith is to be determined by the Court harmonizing the public policy favoring settlements with the policy favoring equitable sharing of costs among tortfeasors.  The settlement must be within the reasonable range of the settling tortfeasor’s share of liability for the Plaintiff’s injuries—taking into consideration the facts and circumstances of the particular case. Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Ca.3d 488, 499.  The court takes into account the six factors in making the determination:

 

[1] a rough approximation of Plaintiffs' total recovery and the settlor's proportionate liability, [2] the amount paid in settlement, [3] the allocation of settlement proceeds among Plaintiffs, [4] a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial… [5] the financial conditions and insurance policy limits of settling Defendants [and 6] the existence of collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling Defendants.  Id.

 

·         The “party asserting lack of good faith, who has the burden of proof on that issue, should . . . demonstrate, if he can, that the settlement is so far ‘out of the ballpark’ in relation to these factors as to be inconsistent with the equitable objectives of the statute.  Such a demonstration would establish that the proposed settlement was not a ‘settlement made in good faith’ within the terms of section 877.6.” Tech-Bilt at 500.  Where good faith is contested, the moving party must make a sufficient showing of all the Tech-Bilt factors, but this may be done either in the original Motion or in counter declarations filed after the nonsettling Defendants have filed an opposition.  City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1261.

 

·         CCP § 877.6(b) provides that “[t]he issue of the good faith of a settlement may be determined by the Court on the basis of affidavits served with the notice of hearing, and any counter affidavits filed in response, or the Court may, in its discretion, receive other evidence at the hearing.”

 

·         Here, the Hotel Defendants assert the settlement was not made in good faith under Tech-Bilt.  The Court agrees that Defendant HD Supply’s initial moving papers lack any competent evidence of a rough approximation of Plaintiffs’ potential recovery and its proportionate liability.  Defendant HD Supply merely alleges in its declaration in support that it was much less responsible (if at all) than Hotel Defendants.  .

 

·         The proposed settlement otherwise appears to meet all of the other Tech-Built factors.  Defendant HD Supply agreed to pay $400,000 to Plaintiffs in this settlement agreement.  Hotel Defendants do not dispute this fact.  Defendant HD Supply does not provide any competent evidence of the allocation of settlement proceeds.  However, as both Plaintiffs and Defendant HD Supply point out in their reply briefs, this factor is of little importance here where the plaintiffs are not adverse and will likely recover in the same amount.  Defendant HD Supply states that it is paying less in this settlement than it would if it were found liable.  Hotel Defendants do not dispute this fact.  Defendant HD Supply states that its insurance policy limit is well above the $400,000 settlement and that the policy did not influence settlement negotiations.  Hotel Defendants do not dispute this fact.   Defendants state that there was no fraud, collusion, or tortious conduct in coming to this settlement agreement.  Hotel Defendants do not dispute this fact. 

 

·         Hotel Defendants argue that Defendant HD Supply’s settlement is disproportionate to its share of liability.  However, based on the competent evidence provided by the parties (only Defendant HD Supply provided any competent evidence), it would appear that Hotel Defendants likely share a much larger portion of the liability in this action than Defendant HD Supply.  Hotel Defendants were responsible for the maintenance of the Charlie Bar, they were aware of a previous similar incident but did nothing to warn decedent or fix the problem, and did not inform Defendant HD Supply of the incident. 

 

·         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 Elizabeth K.  Lee, Department 17.

 

___________________________________________________________________


9:00

5

CIV 525865       GEORGE K. PLAVJIAN VS. ROSAS INVESTMENT CORP., ET AL.

 

 

GEORGE K. PLAVJIAN                    MARK BRIFMAN

ROSAS INVESTMENT CORP.

 

 

MOTION TO COMPEL RESPONSES TO DISCOVERY AND REQUEST FOR MONETARY SANCTIONS AGAINST PLAINTIFF GEORGE K. PLAVJIAN BY HARMIN INVESTMENTS LP

 

 

·         Counsel for Harmin’s Motion to Compel Responses to Discovery is DENIED.  Plaintiff George Plavjian provided verified responses to the Form Interrogatories [Set One], Special Interrogatories [Set One], and Request for Production and Inspection of Documents [One] on November 4, 2014. 

 

·         However, by failing to respond to the reasonable discovery requests within the agreed upon deadlines, Plaintiff misused the discovery process.  Therefore, counsel for Defendant’s request for sanctions is GRANTED pursuant to CCP sections 2030.290(c) and 2031.300(c.)  Counsel for Defendant should receive $2,145.00 in monetary sanctions.   

 

·         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 Elizabeth K.  Lee, Department 17.

 

_____________________________________________________________________


9:00

6

CIV 526238       MILDRED POLINGER, ET AL. VS. DIGNITY HEALTH, ET AL.

 

 

MILDRED POLINGER                      IRA LESHIN

DIGNITY HEALTH                        CYRUS A. TABARI

 

 

MOTION TO STRIKE DAMAGES ALLEGATIONS WITHIN PLAINTIFFS’ FIRST AMENDED COMPLAINT BY DUC MARCEL NGUYEN, M.D.

 

 

·         Defendant’s Motion to Strike Damages Allegations is granted in part (as to “general damage” and “serious damage, pain and suffering to Plaintiff’s body and mind”) and Denied in part (as to “loss of consortium for Plaintiff Elliot Polinger”).

 

 

DEMURRER TO FIRst Amended COMPLAINT OF POLINGER BY DUC MARCEL NGUYEN, M.D.

 

 

·         Defendant’s Demurrer is SUSTAINED with leave to amend. 

 

·         The First Amended Complaint appears to try to state two Causes of Action, although both are rolled into one labeled “general negligence.”  The First and Second paragraphs under “description of reasons for liability” recite facts about the treatment of the decedent at the time of her surgery by Defendants.  (FAC p. 4, ¶ GN-1.) The third paragraph states Elliot’s claim for loss of consortium damages and medical expenses incurred to treat his wife, the decedent. (Ibid.) The fourth paragraph alleges that this is a survivor action being brought by the executor of the estate of the decedent.  (Ibid.)

 

·         The First Amended Complaint is confusing, as it is unclear whether this addendum intends to state two Causes of Actions, or to recite facts in support of “general negligence,” as the page is labeled.  The damage claims are also jumbled together. It is unclear whether Elliot is alleging economic damages (such as medical expenses and caregiver costs) in his loss of consortium claim, or if he is alleging negligence as the successor-in-interest to his wife. 

 

·         A survivor action is limited to economic damages only and does not permit damages for pain and suffering.  CCP § 377.34.  Economic damages do not include “subjective, non-monetary losses including, but not limited to, pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation,” as those are defined as "non-economic damages."  Civ. Code § 1431.2(b)(2).

 

·         Loss of consortium is limited to non-economic damages (i.e., loss of love, companionship, comfort, care, assistance, protection, affection, moral support, etc.), and does not include: (1) loss of financial support, (2) cost of personal services such as nursing that spouse provided to injured spouse, or (3) loss of earnings that spouse lost by giving up a job to care for injured spouse.  CACI 3920.

 

·         While Plaintiffs may wish to state a claim for the medical and caregiver costs paid out of joint accounts, those economic damages would rightfully belong in the survivor action, and not as loss of consortium. 

 

·         Defendants argue that loss of consortium damages are non-economic damages and in a survivor action, the only permitted damages are economic damages, therefore the loss of consortium Cause of Action fails because it can only recover non-economic damages. Defendants do not cite any case law to support this conclusion. 

 

·         A claim for loss of consortium is not derivative of Plaintiff’s claim and it is an independent Cause of Action.  Leonard v. Crane, 206 Cal. App. 4th 1274, 1283 (2012).  A spouse could maintain an action for loss of consortium where the injured spouse had adequately pleaded a tortious injury from which the non-injured spouse’s loss of consortium claim was derived, although the injured spouse’s claim was later dismissed.  Hahn v. Mirda, 147 Cal. App. 4th 740 (2007).

 

·         Defendant’s two requests for Judicial Notice are 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 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 Elizabeth K.  Lee, Department 17.

 

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9:00

7

CIV 528937       LAURA BERNADETTE HAYWARD VS. BARBARA KUEHN, ESQ., ET

                   AL.

 

 

LAURA BERNADETTE HAYWARD              JEFFREY S. GANANIAN

BARBARA KUEHN, ESQ.                   PAUL J. SMOOT

 

 

DEMURRER TO FIRst Amended COMPLAINT of HAYWARD BY BARBARA KUEHN, ESQ. AND LAW & MEDIATION OFFICES OF BARBARA J. KUEHN, APC

 

 

·         Defendant’s unopposed general Demurrer to the Second Cause of Action for fraud is SUSTAINED without leave to amend.  Each and every count of the Second Cause of Action in the First Amended Complaint arises from breach of contract. The specific contract is the fee agreement between Plaintiff and Defendant to handle her family law case.  That fee agreement, attached as Exhibit A to the First Amended Complaint, unequivocally demonstrates that Defendant fully disclosed all material facts and under no circumstances as alleged in the First Amended Complaint, concealed any material facts.

 

·         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 Elizabeth K.  Lee, Department 17.

 

_____________________________________________________________________


9:00

8

CIV 529728       ARTHEL COLEMAN VS. ANDRE L. HARRIS, ET AL.

 

 

ARTHEL COLEMAN                        STEPHEN R. PAPPAS

ANDRE L. HARRIS

 

 

MOTION TO STRIKE PLAINTIFF ARTHEL COLEMAN'S FIRST AMENDED COMPLAINT BY KENNETH HARRIS AND RHONA EDGERTON-HARRIS, INDIVIDUALLY AND DBA CENTURY 21 ALPHA PACIFIC

 

 

DEMURRER TO FIRst Amended COMPLAINT of COLEMAN BY KENNETH HARRIS AND RHONA EDGERTON-HARRIS, INDIVIDUALLY AND DBA CENTURY 21 ALPHA PACIFIC

 

 

·         The Demurrer to the First Cause of Action (Breach of Fiduciary Duty) is SUSTAINED WITH LEAVE TO AMEND so that Plaintiff can plead sufficient facts to constitute aiding and abetting and/or conspiracy theories separately, rather than attempting to include both theories into one Cause of Action.

 

·         The Demurrer as to the Second Cause of Action (Violation of Corp Code section 9110) is SUSTAINED WITH LEAVE TO AMEND so that Plaintiff can allege sufficient facts to constitute the Cause of Action, including Plaintiff’s standing to bring these claims.

 

·         The Demurrer as to the Third Cause of Action (Conversion) is SUSTAINED WITH LEAVE TO AMEND so that Plaintiff can allege facts constituting the conversion cause of action including Plaintiff’s ownership or right to possession of the property

 

·         The Demurrer as to the Fourth Cause of Action (Declaratory Relief) is OVERRULED.

 

·         As to the Fifth Cause of Action (Removal and Election of Directors) the Court declines to rule on the Demurrer based upon Plaintiff’s concession that this cause of action is not being brought against these moving Defendants.  

 

·         Plaintiff’s amended pleading shall be filed and served with 20 days after service of Notice of Entry of Order.

 

·         Given the scope of amendments allowed Plaintiff, the Court declines to rule on the Motion to Strike (without prejudice to Defendants to bring another such after Plaintiff’s amended pleading is filed/served).

 

·         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 Elizabeth K.  Lee, Department 17.

 

 

_____________________________________________________________________


9:00

9

CIV 530224       EMMANUEL MARTINEZ VS. BENJAMIN KOPF, ET AL.

 

 

EMMANUEL MARTINEZ                     DANIEL P. DEAN

BENJAMIN KOPF

 

 

PETITION TO COMPEL BINDING ARBITRATION AND MOTION TO STAY ACTION BY Benjamin Kopf, Benjamin Kopf Holding Company AND Towne Mazda and Towne Ford

 

 

·         Petitioner’s unopposed Petition to Compel Binding Arbitration is GRANTED.  Plaintiff must commence arbitration within 30 days of the entry of the order as set forth in Section 1281.12 of the Code of Civil Procedure.

 

·         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 Elizabeth K.  Lee, Department 17.

 

 

_____________________________________________________________________


9:00

10

CIV 530745       JOHN SHAHIN VS AMICA MUTUAL INSURANCE COMPANY

 

 

JOHN SHAHIN                           NEIL S STEINER

AMICA MUTUAL INSURANCE COMPANY        NICOLE L MEREDITH

 

 

MOTION TO COMPEL FACEBOOK, INC. TO COMPLY WITH SUBPOENA AND FOR SANCTIONS AGAINST FACEBOOK, INC. BY AMICA MUTUAL INSURANCE COMPANY

 

 

·         Defendant AMICA MUTUAL INS. CO.’s Motion to Compel FACEBOOK, INC., to Comply with Subpoena and for Sanctions is denied without prejudice.

 

·         Special rules apply to subpoenas for “employment records” of an employee or past employee. CCP §1985.6. For instance, the deposition subpoena cannot be served on the records custodian until at least 5 days after copies of the subpoena and a “Notice to Consumer or Employee” has been served on the employee. CCP §1985.3(b)(3). Additionally, when served on the records custodian, the deposition subpoena must be accompanied by either a written release from the employee or proof that the employee has been served with copies of the subpoena and “Notice to Consumer or Employee.” CCP §2020.510(d). Failure to comply with any of the foregoing requirements by itself invalidates the service so that the employer or records custodian is under no duty to produce the records sought by the subpoena. CCP §1985.6(j). Only minor defects in the documents served on the employee may be cured for “good cause” shown. See CCP §1985.6(g).

 

·         Here, when Defendant served the records custodian of FACEBOOK, the deposition subpoena was not accompanied by either a written release from the employee or proof that the employee had been served with copies of the subpoena and “Notice to Consumer or Employee” as required by CCP §2020.510(d). (See Dec. of Meredith Exhibit A.) Defendant’s subpoena is defective and service on FACEBOOK was invalid.

 

·         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 Elizabeth K.  Lee, Department 17.


 

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

 

NOVEMBER 25, 2014

 

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

 you must call (650) 261-5121 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 490011       STEVE SMITH, ET AL. VS. CAROLE DELMAR, ET AL.

 

 

STEVE SMITH                           JAMES PAUL GREEN

CAROLE DELMAR                         DENNIS J. KELLY

 

 

MOTION TO ADVANCE CAUSE FOR TRIAL AND/OR WAIVER AND/OR EXTENSION OF 5 YEAR STATUTE BY STEVE SMITH AND ANNA SMITH

 

 

·         Appear. 

 


 

 

 

 


POSTED:  3:40 PM

© 2014 Superior Court of San Mateo County