July 5, 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

 

Wednesday, July 1, 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 526808       MONTGOMERY SANSOME LP VS. KRISTINA PEREZ KROW

 

 

MONTGOMERY SANSOME LP                 JOHN H. CIGAVIC

KRISTINA PEREZ KROW                   THOMAS M. HARRELSON

 

 

MOTION FOR JUDGMENT ON PLEADINGS BY KRISTINA PEREZ KROW

 

 

·         The motion is DENIED.

 

·         To be voidable, the Litigation Agreement must be with a “public insurance adjuster” who is not licensed. (Ins. Code ¶ 15006, subd. (b).)  A public insurance adjuster is one who, among other things, “for compensation, acts on behalf of or aids in any manner, an insured in negotiating for or effecting the settlement of a claim or claims for loss or damage under any policy of insurance covering real or personal property . . . .” (Id. § 15007.) Plaintiff Montgomery Sansome’s agreement to split the recovery constitutes “for compensation.” Plaintiff Montgomery Sansome’s agreement to “select and pay for” Defendant Krow’s attorney in the underlying lawsuit constitutes “aid in any manner” for purposes of Section 15007. (Building Permit Consultants, Inc. v Mazur (2004) 122 Cal App. 4th 1400, 1409-10.)

 

·         However, the Complaint does not expressly allege that Plaintiff Montgomery Sansome’s services were entirely within the scope of section 15007.  Under the statute, the aid must pertain to “a claim or claims for loss or damage under any policy of insurance covering real or personal property . . . .” (Id. § 15007.) The Complaint alleges, in part, that one element of loss was caused not by the fire, but by Defendant Krow’s “following Farmers instructions.” (FAC ¶ 13 [“At the Arbitration Plaintiff Montgomery Sansome . . . identified approximately $130,000 in work that still needs to be performed to correct problems caused by Plaintiff Montgomery Sansome following Farmers instructions”]; id. ¶ 34(c) [damages include  . . . reasonable value of the additional work required to restore Defendant Krow' s home caused by Plaintiff Montgomery Sansome following Farmers instructions”].)

 

·         If the repairs were occasioned by Plaintiff Montgomery Sansome’s “following Farmers’ instructions,” then they possibly were not the result of the fire. Since the Complaint does not expressly allege that Plaintiff Montgomery Sansomes services related solely to “loss or damage under any policy of insurance,” then it does not expressly allege that all of Plaintiff Montgomery Sansome’s services fell within the definition of “public insurance adjuster.”  Therefore, since the Complaint alleges that only part of Plaintiff Montgomery Sansome’s services fall within Insurance Code section 15007 (e. g., amount awarded at arbitration), the motion does not dispose of the entire complaint.

 

·         If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiff Montgomery Sansome shall 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 written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court. 

 

_____________________________________________________________________


9:00

2

CIV 530641       SHERRY SHANKAR VS. SANTA RITA JAIL

 

 

SHERRY SHANKAR                        PRO/PER

COUNTY OF ALAMEDA                     JILL SAZAMA

 

 

MOTION TO CHANGE VENUE BY COUNTY OF ALAMEDA

 

 

·         The Defendant’s Request for Judicial Notice is GRANTED pursuant to Evidence Code §§452(c)(d)(g) and (h).

 

·         The unopposed  Motion to Transfer Venue brought by defendant Santa Rita Jail [Alameda County ] is GRANTED pursuant to CCP §394(a).

 

·         In cases where a plaintiff is suing a County for personal injuries occurring within that county caused by the alleged negligence of the county or its employees, the case shall be tried in that County. CCP §394(a). CCP §394(a) is an exception to the general venue statute of CCP §395. [County of Orange v. Superior Court (1999) 73 Cal App 4th 1189, 1191.

 

·         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.

 

 

_____________________________________________________________________


9:00

3

CIV 531460       PETRITA RED VS. FLYERS ENERGY LLC, ET AL.

 

 

PETRITA RED                           EDWIN AIWAZIAN

FLYERS ENERGY, LLC                    PRITEE K. THAKARSEY

 

 

MOTION TO STRIKE PORTIONS OF PLAINTIFF'S FIRST AMENDED COMPLAINT BY FLYERS ENERGY, LLC

 

  • The  Motion to Strike Portions of the Amended Complaint by Defendant Flyers Energy, LLC is GRANTED LEAVE TO AMEND. The amended pleading fails to allege sufficient ultimate facts demonstrating that questions common to the class predominate over questions affecting individual putative class members or that this plaintiff would have claims typical of the class or that she would be an adequate class representative.
  • The demurrer by Defendant Flyers Energy, LLC is SUSTAINED WITH LEAVE TO AMEND.

 

  • 1st C/A [unpaid overtime]: Plaintiff has fails to allege sufficient ultimate facts to state her first cause of action for failure to pay overtime. Plaintiff uses statutory language and summarily alleges that employees worked in excess of the required hours without receiving overtime pay.

 

  • 2nd and 3rd C/A [unpaid meal period premiums and unpaid rest period premiums]: Paragraphs 58-63 and 68-73 of the amended complaint are merely a restatement of the legal elements required to state meal and rest period claims under Labor Code 226.7. Plaintiff has not alleged the requisite specific facts to state a cause of action for violation of these code sections.

 

  • 4th C/A [unpaid minimum wages]: Plaintiff has alleged no facts other than that defendant failed to pay minimum wages to plaintiff and other class members. Amended Complaint ¶¶77, 78. This is far short of meeting the pleading standard.

 

  • 5th C/A [final wages not timely paid]: This cause of action fails for lack of supporting facts. Plaintiff asserts that defendant intentionally and willfully failed to pay the other class members who are no longer employed by defendant their wages, earned and unpaid within 72 hours of leaving employment in violation of Labor Code 201 and 202. Amended Complaint ¶ 84. Plaintiff does not make a single allegation she was not paid her wages timely upon termination.

 

  • 6th C/A [violation of B&P Code 17200: This cause of action fails as it is derivative of the factually unsupported wage claims and is lacking any independent facts in support. It fails for the same factual deficiencies of the underlying causes of action, discussed above upon which this cause of action entirely depends and from which it derives. See Daily v. Sears, Roebuck and Co. (2013) 214 Cal App 4th 974, 1002.

 

  • Plaintiff shall file and serve her 2nd Amended Complaint no later than July 22, 2015.

 

  • Moving and dermurring party are 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.

 

 

 

DEMURRER TO PETRITA RED’S 1st Amended COMPLAINT of RED BY FLYERS ENERGY

 

 

·         See above.

 

 

_____________________________________________________________________


9:00

4

CIV 532623       NINO POSTNIKOVA VS. NASSER ZAGHI, ET AL.

 

 

NINA POSTNIKOVA                       TANYA GOMERMAN

NASSER ZAGHI                          PAUL C. GLASPY

 

 

DEMURRER TO COMPLAINT of NINO POSTNIKOVA BY GREGORY ROOS

 

 

  • Defendant GREGORY ROOS’ Demurrer to Complaint is OVERRULED in its entirety. 

 

  • A demurrer is used to challenge defects that appear on the face of the pleading, or from matters outside the pleading that are judicially noticeable. [ Blank v. Kirwan (1985) 39 C3d 311, 318].  All properly pleaded allegations, including those that arise by reasonable inference, are deemed admitted and accepted as true regardless of the possible difficulty of proof at trial.  [Heckendorn v. City of San Marino (1986) 42 Cal.3d 481, 486]. 

 

  • In this case, the Complaint alleges that Defendants, including Defendant ROOS, are the owners and operators, lessors and/or lessees, or agents of the owners, lessors and/or lessees, of the subject Business (Complaint ¶ 7), and that Defendants are jointly and severally responsible for identifying and removing architectural barriers at the subject Business (Complaint ¶ 9.)  The Court accepts these allegations as true for purposes of the demurrer.  While ROOS contends that he is merely a tenant at the subject property with no ownership or control of the parking lot, he submits no judicially noticeable evidence to support this contention.  Accordingly, the demurrer is overruled.

 

  • Defendant shall file his Answer to the Complaint no later than July 15, 2015.

 

  • Demurring 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

5

CLJ 526399       DISCOVER BANK VS. JOCELYN A. VALERAMA

 

 

DISCOVER BANK                         MARTIN HOFFMANN

JOCELYN A. VALERAMA                   PRO/PER

 

 

MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION DISCOVER BANK AGAINST JOCELYN A. VALERAMA

 

·         The Request for Judicial Notice by Plaintiff Discover Bank is GRANTED pursuant to Evidence Code §§452, 453.

 

·         The Motion for Summary Judgment by Plaintiff Discover Bank is GRANTED.  Plaintiff has met its initial burden pursuant to CCP § 437c(p)(1) through the declaration of James Paul, their designated agent and the exhibits attached to his declaration. The burden then shifts to Defendant to establish a triable issue of material fact pursuant to CCP §437c(p)(2). The Defendant has not met that burden. The defendant has not submitted a memorandum of points and authorities in opposition and has not filed a separate statement in opposition. The defendant has not disputed through any evidence the following facts: the defendant applied for a discover credit card account [Fact 1]; that plaintiff provided her with an agreement [Fact 2]; that defendant used the credit card account, thereby agreeing to be bound by the terms and conditions in the agreement [Fact 3]; that defendant received monthly billing statements [Fact 4]; that defendant failed to dispute any of the charges [Fact 5]; and that the current balance due on the account is $4597.25 [Fact 8]. Because the defendant has not disputed any of these facts through a separate statement or any other evidence, they are deemed admitted. [Bispo v. Burton (1978) 82 Cal App 3d 824, 832]. These facts, as a matter of law, establish the common count causes of action. [CCP §337a; Trafton v. Youngblood (1968) 69 Cal 2d 17, 25].  Judgment for Plaintiff in the $4,597.25 plus statutory costs of suit.

 

·         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

6

CLJ 526916       WESTERN WORLD INSURANCE COMPANY VS. ELIZABETH NAKATA

 

 

WESTERN WORLD INSURANCE COMPANY       JOHN D. GUERRINI

ELIZABETH NAKATA                      DENISE EATON-MAY

 

 

MOTION TO BE RELIEVED AS COUNSEL BY DENISE EATON-MAY

 

·         Counsel Denise Eaton-May’s unopposed Motion to Withdraw as counsel for defendant Elizabeth Nakata is DENIED WITHOUT PREJUDICE. Moving counsel has not filed a proof of service showing that the motion has been served on either the plaintiff’s counsel or the defendant. Pursuant to Code of Civil Procedure §284(2). CCP § 284(2) provides that an attorney may apply to the court for an order to withdraw after giving notice.

 

·         If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.

 

 

_____________________________________________________________________


9:00

7

CLJ 528112       DISCOVER BANK VS. JOCELYN A. VALDERAMA

 

 

DISCOVER BANK                         MARTIN HOFFMAN

JOCELYN A. VALDERAMA                  PRO/PER

 

 

MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION DISCOVER BANK AGAINST JOCELYN A. VALERAMA

 

 

  • The Motion of Plaintiff Discover Bank for Summary Judgment is GRANTED. Plaintiff has met its initial burden pursuant to CCP § 437c(p)(1) through the declaration of James Paul, their designated agent and the exhibits attached to his declaration. The burden then shifts to Defendant to establish a triable issue of material fact pursuant to CCP §437c(p)(2). The Defendant has not met that burden. The defendant has not submitted a memorandum of points and authorities in opposition and has not filed a separate statement in opposition.

 

  • Regarding the first count for Open Book Account, plaintiff has submitted evidence showing the existence of the book account between the parties relative to a credit card account bearing account number ending 4009.  See, Plaintiff’s declaration ¶¶5-12 and Exhibits A and B.

 

  • As to the 2nd count for Account Stated, plaintiff has submitted evidence showing there is an account stated between the parties.  See, plaintiff’s declaration ¶¶5-12 and Exhibits A and B.

 

 

  • Plaintiff shall recover from defendant the principal sum of $5217.62 and court costs in the amount of $819.50 pursuant to a memorandum of costs, for a total judgment of $6037.12.

 

  • 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 Joseph C Scott, Department 25.

 

 

 

_____________________________________________________________________


9:00

8

CLJ 529302       AMERICAN EXPRESS BANK VS. B T ROBINSON JR.

 

 

AMERICAN EXPRESS BANK, FSB            LINA M. MICHAEL

B T ROBINSON JR.                      PRO/PER

 

 

MOTION TO DEEM MATTERS ADMITTED AND FOR MONETARY SANCTIONS BY AMERICAN EXPRESS BANK

 

 

  • The unopposed Motion for Order Deeming Facts Admitted by Plaintiff American Express Bank, FSB is GRANTED pursuant to CCP § 2033.280. All of those matters set forth in Plaintiff’s Request for Admissions, Set One, dated September 16, 2014, are hereby deemed admitted.

 

  • Plaintiff’s request for sanctions is also granted pursuant to CCP §§ 2023.010(d) and 2033.280(c).  Defendant shall pay Plaintiff a total of $420.00 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.

 

 

 

_____________________________________________________________________

 

 

 

 


POSTED:  3:00 PM

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