July 24, 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 RICHARD H. DuBOIS

Department 16

 

400 County Center, Redwood City

Courtroom 7A

 

Wednesday, July 19, 2017

 

NOTICE TO ALL COUNSEL

 

Until further order of the Court, no endorsed-filed “courtesy copy” of pleadings is required to be provided to the Law and Motion Department.

 

 

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

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16-CIV-00319     XIUFENG LI vs. SUZANNE CAMBRON, et al.

 

 

XIUFENG LI                             JOHN N. FRYE

SUZANNE CAMBRON                        ALAN F. HUNTER

NOKIA USA                              STEVEN ABERN

 

MOTION FOR SUMMARY JUDGMENT BY NOKIA USA

TENTATIVE RULING:

 

The Motion of Defendant Nokia USA Inc. (“Defendant”) for Summary Judgment to the Complaint (“TAC”) of Plaintiff Xiufeng Li (“Plaintiff”), is GRANTED.

 

An employer is liable for the torts of his employees committed within the scope of their employment under the doctrine of respondeat superior.  (Caldwell v. A.R.B. Inc. (1986) 176 Cal.App.3d 1028, 1035.)  Generally, whether an employee is acting within the course and scope of employment is an issue of fact, but when the facts of a case are undisputed and conflicting inferences may not be drawn from those facts, whether an employee is acting within the scope of his employment is a question of law.  (Id.)  As a general rule, an employee is acting outside the scope of his employment during an employee’s ordinary commute between home and work.  (Id.)  This is known as the “going and coming rule.”  (Id.) 

Here, Defendant proffers sufficient evidence to meet its burden that no triable issue of material fact exists as to Defendant’s liability because the going and coming rule applies. This action arises out of an accident on March 22, 2016, in which Defendant Suzanne Cambron (“Cambron”) allegedly struck Plaintiff with her vehicle.  (See Defendant’s Undisputed Material Fact (“DUMF”) no. 1.)  At the time of the accident, Cambron was traveling from her residence in San Carlos to her work at Defendant’s office in Sunnyvale.  (See DUMF no. 2.)  Cambron was not performing any work-related task at the time of the accident.  (See DUMF no. 5.)  Thus, Defendant meets its burden of establishing that no triable issue of material fact exists as to Plaintiff’s negligence claim.  Further, in opposition, Plaintiff does not dispute these facts.  (See Plaintiff’s Response to DUMF nos. 1, 2 and 5.) 

 

Instead, Plaintiff asserts that an exception to the going and coming rule applies.  One exception that the court has recognized to the going and coming rule is where the employee’s vehicle gives some incidental benefit to the employer.  (Lobo v. Tamco (2010) 182 Cal.App.4th 297, 301.)  This has been referred to as the “required vehicle exception.”  (Id.; see also Jorge v. Culinary Institute of America (2016) 3 Cal.App.5th 382.)  “The exception can apply if the use of the employee’s personally owned vehicle is either an express or implied condition of employment [citation omitted], or if the employee has agreed, expressly or implicitly, to make the vehicle available as an accommodation to the employer and the employer has ‘reasonably come to rely on its use and [to] expect the employee to make the vehicle available on a regular basis while still not requiring it as a condition of employment.’”  (Id.)  The evidence presented by Plaintiff however, fails to raise a triable issue of material fact as to whether the required vehicle exception applies. 

 

First, Plaintiff presents no evidence to support that Cambron’s personal vehicle was an express condition of employment.  It is undisputed that Defendant did not expressly require Cambron to use her personal vehicle to travel to and from work, and that neither her supervisor, Paul Melin, nor any other employee, asked Cambron to use her personal vehicle to perform work-related tasks.  (See DUMF nos. 10, 12, 13.)

 

Second, Plaintiff’s evidence is insufficient to raise a triable issue of material fact as to whether use of Cambron’s personal vehicle was an implied condition of employment.  Plaintiff relies on Defendant’s Global Travel Policy, Section 12, which is titled “Taxi, limo, bus, personal car, train and ferry” and states:

 

Business necessity and reasonable cost should justify all other transport expenses (taxi, buses, personal car, etc.).  Use of the most economical form of transport is required.  Shuttle buses or share-a-ride taxi programs are encouraged whenever practical.  Limousine services are not permitted unless the cost of the service is less than the cost of shuttle busses or taxi services.  Nokia preferred providers should be used when booking limousine (sedan) services.

 

(See Plaintiff’s Undisputed Material Fact no. 42.)  Plaintiff contends that since the language required employees to use the most economical form of transportation, Cambron used her own personal vehicle raising the inference that this use was justified by “business necessity” and “reasonable cost.” 

 

Cambron used her personal vehicle for business-related errands and for business-related travel on behalf of Defendant on July 13, 2015, July 14, 2015, November 29, 2015, December 1, 2015, December 15, 2015, and December 16, 2015.  (See Plaintiff’s Undisputed Material Facts nos. 18, 19, 24, 28, 32.)  Plaintiff presents evidence to show that had Cambron taken an airport shuttle service, taxi, Uber or Lyft for such travel, it would have been more expensive than using her own personal vehicle and obtaining mileage reimbursement.  (See Plaintiff’s Undisputed Facts nos. 18-21, 24, 26, 28-30, 32-34, 37-39, 41.)  The problem with this argument, which Plaintiff seems to acknowledge, is that public transportation would have cost less for most of this travel.  (See Plaintiff’s Undisputed Material Facts nos. 22, 31, 35, 40.)  Plaintiff attempts to dispose of this problem by arguing it would have taken significantly longer, but this argument is unpersuasive given that Plaintiff’s argument rests on interpretation of the “most economical form of transport.”  Thus, Plaintiff fails to raise a triable issue of material fact that use of Cambron’s personal vehicle was an implied condition of employment so she could comply with using the most economical form of transport in taking care of business-related errands and travel.

 

Moreover, the policy on its face permits other modes of transportation, and the evidence supports that Cambron had a choice in deciding what mode of transportation to utilize.  (See DUMF nos. 14, 15, 17, 42; Plaintiff’s Response to DUMF no. 17.) 

 

Lastly, Plaintiff fails to raise a triable issue of material fact as to whether Defendant received an incidental benefit from Plaintiff’s use of her vehicle.  The incidental benefit exception applies if the employee has either expressly or impliedly agreed to make the vehicle available as an accommodation to the employer, and the employer has reasonably come to rely on the vehicle’s use and expects the employee to make it available regularly.  (Lobo, supra, 182 Cal.App.4th at 301.)  The benefit must be sufficient enough to justify making the employer responsible for the risks inherent in the travel. (Blackman v. Great America First Savings Bank (1991) 233 Cal.App.3d 598, 604.)  The evidence does not establish that Cambron expressly or impliedly agreed to make her personal vehicle available for Defendant’s benefit, but rather the evidence shows that Cambron had discretion in deciding her method of travel to work as well as whether or not to use her personal vehicle to perform work-related tasks.  (See DUMF nos. 10-17.)  Moreover, Plaintiff has not presented evidence sufficient to raise a triable issue of material fact that Defendant came to reasonably rely on Cambron using her personal vehicle. 

Defendant’s Evidentiary Objections nos. 1-16 and 18-45, are OVERRULED.

 

Defendant’s Evidentiary Objection no. 17 is SUSTAINED based on lack of foundation.

 

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, defendant NOKIA USA 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 Richard H. DuBois, Department 16.

 



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16-CIV-00915     KATHERINE L. GALLO-PODESTA, et al. vs. MIKE ASSAF

 

 

KATHERINE L. GALLO-PODESTA             ROBERT HOWIE

MICHAEL "MIKE" ASSAF                   MICHAEL A. FARBSTEIN

 

 

MOTION TO COMPEL FURTHER RESPONSES AND PRODUCE DOCUMENTS TO KATHERINE L. GALLO-PODESTA DOCUMENT REQUEST #2

TENTATIVE RULING:

 

A.   Motion to Compel Further Written Responses

 

Plaintiff’s Separate Statement of Disputed Responses fails to Comply with CRC Rule 3.1345(c)(2) (separate statement must include “the text of each response”). Plaintiff’s Moving Separate Statement sets forth Defendant’s amended responses, but omits the original responses. 

 

Plaintiff’s motion to compel further written responses is DENIED as to Categories 54, 55, 57, 59, 61, 63, 64, 65, 67, 68, 69, 70, 71, 73, 91, and 92. In response to each of these categories, Defendant responded that “all documents have been produced,” and “After a diligent search, responding party can identify no additional responsive documents….”  The motion argues that Code of Civil Procedure section 2031.210 requires Defendant to “identify and produce” documents. (See, e.g., Moving Separate Statement of Responses in Dispute.) To the contrary, Section 2031.210 does not require a party to identify or produce documents; section 2031.210 requires only a written response about whether documents will be produced. Defendant’s responses are complete. The only dispute is whether documents were produced “as they are kept in the usual course of business, or . . . organized and labeled to correspond with the categories in the demand.” (Code of Civ. Proc. Section 2031.280.) However, that issue is not the basis for a motion to compel further written response.

 

Plaintiff’s motion to compel further written responses is DENIED as to Categories 79 and 80 (documents regarding website host provider). Defendant’s response that “none have existed,” whether true or not, is complete. A motion to compel further response is proper when the demanding party deems that the written response is incomplete, inadequate, or evasive. (Code of Civ. Proc. Section 2031.310, subd. (a).)  Other remedies exist if a party believes the complete written response is false.

 

Plaintiff’s motion to compel further written responses is denied as to Category 81. The amended response states that “responding party can identify no responsive documents because none have existed.”  Plaintiff’s motion argues that the original response that “all documents have been produced” is false. (Plaintiff omits the original response from her Separate Statement.) Plaintiff asserts that she later learned that Defendant has all of Plaintiff’s data “maintained in the cloud,” citing paragraph 18 and Exhibit J to the Declaration of Gallo-Podesta. The Court is unable to determine what part of paragraph 18 or Exhibit J shows that Defendant is in possession or control of the documents. Regardless, no statutory basis exists for an order that a party change his response, as opposed to supplementing it. The amended responses say that no document exist. That response, whether true or not, complies with Section 2031.210.

 

Plaintiff’s motion to compel further written responses is DENIED as to Categories 82 through 86, and 89. Defendant responded that no documents were in his possession or control. Discovery requires producing only documents that are in the possession or control of the party, and Defendant responded that no responsive documents were in his possession or control. Defendant is not required to seek out and obtain them. The response also states that Defendant has requested the documents from his phone company and educational institution. The written response is complete under section 2031.210.

 

     B.   Motion to Produce Documents In Compliance with Code of Civil Procedure Section 2031.280.

 

For Plaintiff’s motion for compliance with Section 2031.280, the parties are directed to appear. By amended order entered May 12, 2017, the Court ordered Defendant to re-produce his documents in a manner that corresponds to document requests, no later than May 24, 2017. Plaintiff’s present motion is unclear whether the documents Defendant was to produce pursuant to the May 24, 2017, order are the same ones about which the present motion complains.

 

     C.   Motion to Compel Production of Documents.

 

For Plaintiff’s motion to compel production of documents, the parties are ordered to appear. Defendant was not obligated to produce documents responsive to Requests #82 - 86 (phone records) and 89 (diploma), since Defendant responded that no documents were in his possession or control at the time he served his written response. Regardless, Defendant now states that he has obtained and produced them, but Plaintiff’s Reply contends that nothing has been produced. The parties are to appear and clarify what, if anything, has been produced in response to these categories.

 

Both parties’ requests for sanctions are denied. 

 

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.

 

 



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17-CIV-00786     PARSONS TRANSPORTATION GROUP vs. Peninsula Corridor

                     Joint Powers Board, et al.

 

 

PARSONS TRANSPORTATION GROUP            BENNETT J. LEE

Peninsula Corridor Joint Powers Board   LAUREL E. O'CONNOR

 

 

MOTION TO STRIKE ALLEGATIONS IN PLAINTIFF’S FIRST AMENDED COMPLAINT

TENTATIVE RULING:

 

Defendant PENINSULA CORRIDOR JOINT POWERS BOARD’s Motion to Strike pursuant to Code Civ. Proc. §§ 435 and 436 is DENIED.  Defendant asserts that the allegations set forth at Paragraphs 57, 58, and 59 of Plaintiff PARSONS TRANSPORTATION GROUP’s First Amended Complaint are inadmissible pursuant to Evidence Code §§ 1152 and 1154.  However, these statements are not being proffered to demonstrate that the JPB’s participation in settlement negotiations prove its liability or the invalidity of its claims.  Rather, the statements are proffered to demonstrate the JPB’s alleged failure to act in good faith, and constitute not an offer to compromise, but rather an assertion of what the JPB deemed itself entitled to.  Volkswagen of America, Inc. v. Superior Court (2006) 139 Cal.App.4th 1481, 1494; see also Zhou v. Unisource Worldwide, Inc. (2007) 157 Cal.App.4th 1471, 1477. 

 

A motion to strike is appropriate to strike all or any part of any pleading that is irrelevant or false, or that contains improper matter that is inserted in the pleading, or that is not drawn or filed in conformity with the laws of the State of California, a court rule or an order of the court.  Code Civ. Proc. § 436. 

 

Here, Paragraphs 57, 58, and 59 do not appear to contain improper matter subject to being stricken. While the JPB asserts that Evidence Code §§ 1152 and 1154 protects the alleged communications from disclosure, due to their having been made in connection with settlement negotiations, Parsons is not seeking to have these statements admitted for the purpose of proving the JPB’s liability for the “loss or damage or any part of it”. Rather, Parsons offers these statements to demonstrate the JPB’s alleged breach of the covenant of good faith and fair dealing in refusing to negotiate in good faith to resolve the parties’ claims against each other. 

 

The language of Evidence Code §§ 1152 and 1154 clearly limits their application to instances where evidence of settlement negotiations is being offered to prove the liability of one of the negotiating parties, or to show the invalidity of a negotiating party’s claim.  The statements allegedly made by the JPB on January 11, 2017 did not constitute a settlement offer, but instead was offered as an assertion of all that the JPB deemed itself entitled to.  Volkswagen, supra at 1494.  Such statements are not considered an offer of compromise.  Zhou, supra at 1477.  Accordingly, where, as here, information regarding settlement discussions is being submitted for a purpose other than to show liability for the alleged loss or validity of the claim, it may be admitted.  “Evidence Code §§ 1152 and 1154 are not absolute bars to admissibility, since a settlement document may be admissible for a purpose other than proving liability.”  Volkswagen, supra at 1491. 

 

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.

 

 



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CIV410586     EDITH INGRAM, ET AL. VS. RAMIN YEGANEH, ET AL.

 

 

RAMIN YEGANEH                          GEORGE P. ESHOO

EDITH M. INGRAM                        MICHAEL M. MARKMAN

 

 

MOTION TO BE RELIEVED AS COUNSEL

TENTATIVE RULING:

 

William Gilg’s motion to be relieved as counsel for plaintiff Ramin Yeganeh is GRANTED.

 

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, attorney Gilg is directed to prepare, circulate, and submit a written order on the appropriate judicial council form for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order is to be submitted directly to Judge Richard H. DuBois, Department 16.

 



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CIV530285     RENEE GLOVER CHANTLER VS. FARIN NAMDARAN YEGANEH

 

 

DLA PIPER LLP                          KATHLEEN S. KIZER

RAMIN YEGANEH                          WILLIAM E. GILG

 

 

MOTION TO BE RELIEVED AS COUNSEL

TENTATIVE RULING:

 

William Gilg’s motion to be relieved as counsel for defendant Ramin Yeganeh is GRANTED.

 

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, attorney Gilg is directed to prepare, circulate, and submit a written order on the appropriate judicial council form for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order is to be submitted directly to Judge Richard H. DuBois, Department 16.

 



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CIV538261     LILLIAN CHAN VS. CITY OF SOUTH SAN FRANCISCO, ET AL.

 

 

LILLIAN CHAN                           DANIEL K. BALABAN

CITY OF SOUTH SAN FRANCISCO             RODRIGO E. SALAS

 

 

6. MOTION FOR SUMMARY JUDGMENT JA MELONS, INC’S NOTICE OF MOTION FOR SUMMARY JUDGMENT

TENTATIVE RULING:

 

This motion is dropped from calendar at the request of the moving party.

 

 

7. MOTION FOR SUMMARY JUDGMENT

TENTATIVE RULING:

 

This motion is dropped from calendar at the request of the moving party.

 

 

 

8. JOINDER OF DEFEDANTS ANN LYONS AND MICHAEL BOZZUTO’S TO DEFENDANT JA MELONS’S, INC’S MOTION FOR SUMMARY JUDGMENT, ETC.

TENTATIVE RULING:

 

This motion is dropped from calendar at the request of the moving party.

 


 

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 susan irene etezadi

Department 18

 

400 County Center, Redwood City

Courtroom 2L

 

Wednesday, July 19, 2017

 

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

 you must call (650) 261-5118 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

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17-CIV-02203     GRANT JONES vs. 314E CORPORATION, et al.

 

 

GRANT JONES                            NORMAN B. BLUMENTHAL

314E CORPORATION

 

 

Complex Case Status Conference

TENTATIVE RULING:

 

This matter is provisionally deemed and designated complex and is assigned to Judge Marie S. Weiner, Department 2, for all purposes. The parties are directed to contact Judge Weiner’s Department at 650-261-5102 to set a date for future status conference or other hearing.

 



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17-CIV-02216     JARMAINE JOHNS vs. VERITY HEALTH SYSTEM OF

                     CALIFORNIA, INC., et al

 

 

JARMAINE johns                         KEVIN MAHONEY

VERITY HEALTH SYSTEM OF CALIFORNIA, INC.

 

 

Complex Case Status Conference

TENTATIVE RULING:

 

This matter is provisionally deemed and designated complex and is assigned to Judge Marie S. Weiner, Department 2, for all purposes. The parties are directed to contact Judge Weiner’s Department at 650-261-5102 to set a date for future status conference or other hearing.

 

 


 

 

 

 

 

 

 


POSTED:  3:00 PM

 

 

© 2017 Superior Court of San Mateo County