August 31, 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 jonathan e. karesh

Department 20

 

400 County Center, Redwood City

Courtroom 8C

 

Wednesday, August 31, 2016

 

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

 

9:00

LINES: 1 & 2

CIV211374     DALY CITY SERRAMONTE CENTER LLC V.S. FOREIGN EXCHANGE, INC.    

 

 

DALY CITY SERRAMONTE CENTER, LLC      ERNIE ZACHARY PARK

V.S. FOREIGN EXCHANGE, INC.           AMORN BHOLSANGNGAM

 

MOTION TO COMPEL PRODUCTION OF DOCUMENTS 

TENTATIVE RULING:

 

 

Plaintiff Daly City Serramonte Center., LL’s Motion to Compel Responses to Request for Production of Documents is GRANTED pursuant to CCP §2031.300(b). Defendant shall provide verified responses without objection within 15 days of service of the notice of entry of order. Plaintiff’s request for sanctions is granted against defendant pursuant to CCP §2031.300(c) in the amount of $385. The sanction shall be paid within 15 days of service of the notice of entry of order.

 

 

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

 

 

MOTION TO COMPEL RESPONSES TO SPECIAL INTERROGATORIES

TENTATIVE RULING: 

 

Plaintiff Daly City Serramonte Center., LL’s Motion to Compel Responses to Special Interrogatories is GRANTED pursuant to CCP §2030.290(b). Defendant shall provide verified responses without objection within 15 days of service of the notice of entry of order. Plaintiff’s request for sanctions is granted against defendant pursuant to CCP §2030.290(c) in the amount of $385. The sanction shall be paid within 15 days of service of the notice of entry of order.

 

 

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



9:00

LINE: 3

CIV453850     FILBERTO ALVAREZ VS. ROGELIO GUIZAR ALVARADO, ET AL.

 

 

FILIBERTO ALVAREZ                     JON R. PARSONS

ROGELIO GUIZAR ALVARADO               JENIFER K. GARDELLA

 

 

MOTION FOR ISSUANCE OF A CHARGING ORDER

TENTATIVE RULING:

 

Plaintiff/judgment creditor Filiberto Alvarez’ Motion For a Charging Order is GRANTED pursuant to Corporations Code §17705.03 and CCP §708.310.

 

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

 



9:00

LINES: 4 & 5

CIV508888     CINDY K. HUNG, ET AL. VS. TRIBAL TECHNOLOGIES, ET AL.

 

 

CINDY K. HUNG                           LYNDA HUNG  

TRIBAL TECHNOLOGIES                   KASEY TOWNSEND

 

 

MOTION TO COMPEL DEFENDANT TRIBAL BRANDS FOR FURTHER ANSWERS TO FORM INTERROGATORIES

TENTATIVE RULING:

 

 

The Motion to Compel Further Responses is denied. The motion fails to comply with the meet-and-confer requirement of a motion to compel further responses. (Code of Civ. Proc. sections 2030.300(b) & 2016.040; see Declaration of Linda Hung, paragraph 5 and Exhibit C.)  

 

 

The court finds that the Motion to Compel was made without substantial justification and that plaintiff’s attorney did not make a reasonable and good faith attempt to informally resolve the discovery dispute.  As a result, the court awards sanctions in favor of defendant and against plaintiff’s attorney in the amount of $1,200.00.  CCP sections 2023.010(i) and 2030.300(d). The sanctions shall be paid within 20 days of service of the notice of entry of Order.  

 

 

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

 

 

MOTION TO COMPEL DEFENDANT TRIBAL TECHNOLOGIES FOR FURTHER ANSWERS TO FORM INTERROGATORIES

TENTATIVE RULING:

 

 

The Motion to Compel Further Responses is denied. The motion fails to comply with the meet-and-confer requirement of a motion to compel further responses. (Code of Civ. Proc. sections 2030.300(b) & 2016.040; see Declaration of Linda Hung, paragraph 5 and Exhibit C.) 

 

 

The court finds that the Motion to Compel was made without substantial justification and that plaintiff’s attorney did not make a reasonable and good faith attempt to informally resolve the discovery dispute.  As a result, the court awards sanctions in favor of defendant and against plaintiff’s attorney in the amount of $1,200.00.  CCP sections 2023.010(i) and 2030.300(d). The sanctions shall be paid within 20 days of service of the notice of entry of order.   

 

 

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

 

 



9:00

LINE: 6

CIV528242     ANA RUBIO VS. EQR-WOODLAND PARK B LP  

 

 

ANA RUBIO                             KENNETH GREENSTEIN

EQR-WOODLAND PARK B LP                JACK C. NICK

 

 

MOTION FOR LEAVE TO FILE AN AMENDED COMPALINT/ANSWER RE: CROSS-COMPLAINT

TENTATIVE RULING:

 

 

Defendant/cross-complainant EQR Woodland Park B LP’s unopposed Motion to File an Amended Cross-Complaint is GRANTED pursuant to CCP §§428.10 and 473(a)(1).

 

 

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

 

 



9:00

LINE: 7

CIV531332     JOHN THURRELL VS. WELLS FARGO BANK, N.A. ET AL 

 

 

JOHN THURRELL                           THE GOODELL LAW FIRM

WELLS FARGO BANK, N.A.                JASON M. JULIAN,

 

 

MOTION TO QUASH

TENTATIVE RULING:

 

 

Dropped by moving party.

 

 



9:00

LINE: 8

CIV535173     CLAYTON JUE, ET AL. VS. ANDREW NG, ET AL.  

 

 

CLAYTON JUE                             MARK D. HUDAK

ANDREW NG                             DOMINIC V. SIGNOROTTI

 

 

MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION OF ISSUES BY ANDREW NG, ET AL.

TENTATIVE RULING:

 

I.  Evidentiary Objections:

 

This Court takes judicial notice of Defendant’s exhibits A, C, L, M, N, and R.  This Court will not take judicial notice of Defendants’ exhibits E and F.  This Court also will not take judicial notice of Defendants’ exhibits S, T, and U, but will consider them as properly submitted evidence.  

 

Plaintiffs’ objections to paragraphs 6, 7, 8, and 10 of the Declaration of Andrew Ng are sustained. 

 

Plaintiffs’ objection to paragraph 9 of the Declaration of Andrew Ng is overruled. 

 

Plaintiffs’ objections to paragraphs 6, 7, 8, and 10 of the Declaration of Melissa Frederick are sustained.

 

Plaintiffs’ objection to paragraph 9 of the Declaration of Melissa Frederick is overruled. 

 

Plaintiffs’ objections to paragraphs 4, 6, 7, 10, and 11 of the Declaration of Robert Williamson are sustained.   Plaintiffs’ objection to paragraph 8 and 12, are overruled.   Plaintiff’s objected to paragraph 19 of the Declaration of Robert Williamson; however, that declaration has no paragraph 19. 

 

Defendants’ objections to Plaintiffs’ exhibits 1, 2A, 2B, 2C, and 2D are overruled.

 

Defendants’ objections to Plaintiffs’ exhibit 3 is sustained.

Defendants’ objection to paragraph 6 of the Declaration of Clayton Jue is overruled. 

 

Defendants’ objection to paragraph 9 of the Declaration of Clayton Jue, which states “[t]he position of the house currently built at 640 Pullman prevents any possible connection between the easement area and Pullman Road” is sustained. 

 

Defendants’ objection to paragraph 9 of the Declaration of Clayton Jue, which states “[a]nyone looking at the area between the two homes would know that it is impossible to use the easement for ingress and egress” is sustained. 

 

Defendants’ objection to paragraph 9 of the Declaration of Clayton Jue, which states “[i]t cannot be used for and is not being used for ingress and egress in any manner” is sustained as to whether the easement can or cannot be used for ingress and egress and is overruled as to whether the easement is or is not being used for ingress and egress. 

 

I. Merits:

There are triable issues of material fact whether the easement has been extinguished or abandoned.  This Court DENIES Defendants’ motion for summary adjudication or summary judgment.

 

An easement is extinguished by “the performance of any act upon either tenement, by the owner of the servitude, or with his assent, which is incompatible with its nature or exercise.”  Civ. Code. Section 811(3).  The interference with a use of the easement must be material and permanent rather than occasional and temporary in order to justify extinguishment.  People v. Ocean Shore Railroad 32 Cal.2d 406, 418 (1948). 

 

Defendants first argue that the easement cannot be extinguished because it is currently in use.   However, the scope of the permitted use of an easement is determined by the specific language granting the easement.  See Pacific Gas & Electric Co. v Hacienda Mobile Home Park, 45 Cal. App. 3d. 519,525,528 (1975).  Both parties agree that 630 Pullman is burdened with an easement for ingress and egress benefiting the 640 Pullman property.  Defendant’s Undisputed Material Fact No. 2.  But Defendants offer no evidence showing how the easement is currently being used (other than to say that it is being used), and offer no evidence relating to the easement’s use for ingress or egress.   In contrast, Plaintiff has established that the easement area is being used as part of Defendants’ backyard (Plaintiff’s Additional Material Fact (“AMF” No. 13); is not being used for ingress and egress, and does not appear that it has been used for that purpose since the 640 Pullman property was remodeled in 2005 (AMF No. 5).  Thus, there is a triable issue of material fact whether the easement is in use.

 

There is also a triable issue of material fact whether the easement could be used for ingress and egress.  “[T]he easement does not connect directly to Pullman Road.” (AMF No. 11.)  “The easement is surrounded by obstructions” including the house, retaining walls, and a ravine.  (AMF No. 9.) “The new house blocks the area where the former driveway was located” (AMF No. 11), and it would be impractical and unnecessary to use the easement area for ingress and egress (AMF No. 8).  

 

While small interferences such as a hedge, Buechner v. Jonas 228 Cal.App.2d 127 (1964), or a wall with a gate, McCarty v. Walton, 212 Cal.App.2d 39 (1963), are reasonably viewed as occasional and temporary, Defendants have presented no case law supporting their claim that a house is not “material and permanent.” C.f. People v. Ocean Shore Railroad, 32 Cal.2d 406, 418 (1948).   Defendants have offered no evidence to suggest that the house was not intended to be permanent, and Plaintiffs’ evidence presents a strong inference that the house is intended to be permanent.

 

Defendants final argument is that for an easement to be extinguished the court must find that use of the easement would constitute a substantial burden on the servient tenement’s estate.   This is not correct.   While it is sufficient that a modification to the dominant tenement such that the dominant tenement’s use of the easement would impose a new burden on the servient tenement, it is not a necessary condition.  Incompatibility “necessitat[es]  a permanent interference or an act of a nature such that thereafter exercise of the easement cannot be made without severe burden upon the servient tenement.”   Buechner v. Jonas, 228 Cal.App.2d 127, 132 (1964) (emphasis added).

 

There is also a triable issue of material fact whether the easement has been abandoned.  As the cases that Defendants cites make plain, “ ‘[a]bandonment hinges upon the intent of the owner to forego all future conforming uses of the property, and there must be conduct demonstrating that intent . . . .’ ”  Defendants’ Reply in Support of Motion for Summary Judgment at 7:5-8 (quoting Tract Dev. Services, Inc. v. Kepler, 199 Cal. App. 3d (1988) 1374, 1385.  Defendants have not plead as part of their separate statement what conduct the current or former property owners took with respect to the easement in question. 

 

Although Defendants submitted declarations attesting that they had no intention to abandon the easement, absent facts corroborating their intent, this court will not adjudicate the issue as a summary matter.  See Cal. Code Civ. Proc. section 437c(e)

 

Prevailing party is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order is to be submitted directly to Judge Jonathan E. Karesh, Department 20.



9:00

LINE: 9  

CIV536193     DAMON BECNEL VS. THE COLLINGS FOUNDATION, ETAL 

 

 

DAMON BECNEL                          ARA JABAGCHOURIAN

THE COLLINGS FOUNDATION               JOHN F. DOMINGUE

 

 

ORDER TO SHOW CAUSE RE: SANCTIONS

TENTATIVE RULING:

 

 

The unopposed Motion of Plaintiff Damon Bechnel (“Plaintiff”) Regarding Order to Show Cause and Sanctions, is ruled on as follows: 

 

 

The Motion for an Order to Show Cause is DENIED without prejudice.  Plaintiff appears to be asking the court to issue an Order to Show Cause re: Contempt based on Defendant Dunkle Machinery Moving’s (“Defendant”) failure to comply with the court’s order dated April 27, 2016.  Disobeying a court order to provide discovery constitutes a misuse of the discovery process, for which the court may impose a contempt sanction.  (See C.C.P. §§ 2023.010(g), 2023.030(e).)  Contempt sanctions are reserved for only the most flagrant abuses though, and further the court must find the present ability to perform by the party that is claimed to have failed to comply with the court’s order.  (In re de la Parra (1986) 184 Cal.App.3d 139, 143-144.)  Indeed, lesser sanctions such as issue, evidence or terminating sanctions are usually considered for failure to comply with a court order, as opposed to contempt sanctions.  (Id. at 144.) 

 

 

Plaintiff’s Motion lacks evidence from which the court may conclude that an Order to Show Cause re: Contempt is warranted at this time.  Plaintiff fails to set forth facts to support a willful disobedience by Defendant and that Defendant has the ability to comply with the order.  This denial is without prejudice though, to Plaintiff bringing a properly noticed motion for other discovery sanctions such as issue, evidence or terminating sanctions, or a subsequent motion for contempt sanctions, if warranted.

 

 

Plaintiff’s Motion for Monetary Sanctions is GRANTED in part.  Sanctions are awarded against Defendant in the amount of $577.50, payable by Defendant to Plaintiff within 20 days of service of notice of entry of the order.

 

 

Defendant Dunkle Machinery Moving is advised that failure to comply with the court’s April 27, 2016 order and this court order, or further discovery misuse, may result in the imposition of future sanctions, including evidentiary, monetary, contempt or terminating sanctions.

 

 

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, plaintiff is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order is to be submitted directly to Judge Jonathan E. Karesh, Department 20.

 

 



9:00

LINE: 10  

CIV536355     PACIFIC BELL TELEPHONE COMPANY VS. COUNTY OF SAN MATEO, ET AL  

 

 

PACIFIC BELL TELEPHONE COMPANY        STEVEN D. RATHFON

COUNTY OF SAN MATEO                   JOHN C. BEIRES

 

 

MOTION TO COMPEL

TENTATIVE RULING: 

 

 

Off calendar at the request of the parties.

 

 

 



9:00

LINE: 11

CIV536572     KIYOMI ISHII VS NATIONSTAR MORTGAGE, LLC, ET AL.

 

 

KIYOMI ISHII                          MARK W. LAPHAM

NATIONSTAR MORTGAGE, LLC              AUSTIN B. KENNEY

 

 

HEARING ON DEMURRER

TENTATIVE RULING:

 

 

The First Amended Complaint was filed on August 18, 2016.  As a result, this demurrer is ordered off calendar.

 

 



9:00

LINE: 12

CLJ212668     JESUS CANCHARI VS. JANET TAPIA   

 

 

JESUS CANCHARI                        PRO/PER

JANET TAPIA                           PRO/PER

 

 

HEARING ON DEMURRER

TENTATIVE RULING:

 

 

Defendant’s Demurrer to the First Amended Complaint is SUSTAINED WITH LEAVE TO AMEND.  Plaintiff must amend to allege the date the Notice of Termination was served on Defendant with consistency throughout the complaint.

 

 

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

 

 


 

 

 

 

 


POSTED:  3:00 PM

 

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