July 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.

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 ELIZABETH K. LEE

Department 17

 

400 County Center, Redwood City

Courtroom 2M

 

JULY 23, 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 525559       MASKAY INC. VS. AUTOBAHN MOTORS, INC., ET AL.

 

 

MASKAY INC.                           HERMAN FRANCK

AUTOBAHN MOTORS, INC.                 BRUCE NYE

 

 

DEMURRER TO second Amended COMPLAINT of MASKAY, INC. BY MERCEDES BENZ USA

 

 

·         Defendant Mercedes Benz USA's Demurrer on the ground of uncertainty is OVERRULED.

 

·         Defendant Mercedes Benz USA's general Demurrer to the 1st Cause of Action for violation of Business & Professions Code § 17045 is SUSTAINED with leave to amend.  Plaintiff has failed to sufficiently allege “payment or allowance of rebates, refunds, commissions, or unearned discounts.”  The general Demurrer to the 2nd Cause of Action for violation of Business & Professions Code § 17200 is sustained with leave to amend as well, as this cause of action is based upon the violation of § 17045.

 

·         Defendant Mercedes Benz USA's general and special Demurrers to the 3rd Cause of Action for Intentional Interference with Prospective Economic Advantage are OVERRULED based upon Plaintiff's representation that this cause of action has not been brought against this defendant.

 

·         Defendant Mercedes Benz USA's general Demurrer to the 4th Cause of Action for Breach of Contract is SUSTAINED with leave to amend based upon Plaintiff's request for leave to amend to add additional facts.

 

·         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 Elizabeth K. Lee, Department 17.

 

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9:00

2

CIV 525641       BERNARD LABADAN VS. AZIZ AHMAD, M.D.

 

 

BERNARD LABADAN                       PRO/PER

AZIZ AHMAD, M.D.                      JOSEPH C. GHARRITY

 

 

MOTION TO COMPEL DISCOVERY WITH REQUEST FOR MONETARY SANCTIONS AGAINST PLAINTIFF BY AZIZ AHMAD, M.D.

 

 

·         Defendant’s unopposed Motion to Compel Responses to Request for Statement of Damages; Form Interrogatories [Set 1]; Special Interrogatories [Set 1] and Request for Production of Documents [Set 1] is GRANTED pursuant to CCP §§ 2030.290 and 2031.300.  Plaintiff has not provided any responses to Defendant’s discovery requests as required by CCP §§ 2030.260 and 2031.260.  Plaintiff is ORDERED to provide verified responses without objection to Defendant’s Request for Statement of Damages; Form Interrogatories [Set 1]; Special Interrogatories [Set 1] and Request for Production of Documents [Set 1] within 15 days of service of notice of this order.

 

·         Defendant’s Request for Sanctions is GRANTED.  Defendant shall be awarded $420.00 in attorney’s fees and costs under CCP §§ CCP §2030.290(c) and 2031.300(c).  Plaintiff is ORDERED to pay $420.00 in sanctions within 15 days of service of notice 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 Elizabeth K. Lee, Department 17.

 

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9:00

3

CIV 525782       EDMUNDO GAMERO VS. TRUX TRANSPORT, ET AL.

 

 

EDMUNDO GAMERO                        PARVIZ DARABI

TRUX TRANSPORT                        EDWARD W. SUMAN

 

 

MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT BY EDMUNDO GAMERO

 

 

·         Plaintiff’s Motion for Leave to File a First Amended Complaint is GRANTED pursuant to CCP §§ 473(a) and 576.

 

·         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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9:00

4

CIV 526877       JUNE NOKES, ET AL. VS. COASTSIDE LAND TRUST

 

 

JUNE NOKES                            PRO/PER

COASTSIDE LAND TRUST                  MICHAEL J. KRYSTON

 

 

MOTION TO STRIKE PLAINTIFFS’ OPPOSITION BRIEF TO DEFENDANT’S DEMURRER FILED BY COASTSIDE LAND TRUST

 

 

·         This matter is moot.  Defendant’s Motion to Strike filed on June 20, 2014 was directed towards Plaintiffs’ late filed “Answer to Demurrer.”  On June 23, 2014, Judge Lisa A. Novak adopted her tentative ruling sustaining Defendant’s demurrer without leave to amend.  The order sustaining the demurrer was entered into the court’s record on July 14, 2014.

 

·         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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9:00

5

CIV 527064       ROXANNE PEDRO VS. BELMONT-REDWOOD SHORES SCHOOL

                   DISTRICT, ET AL.

 

 

ROXANNE PEDRO                         PAUL T. LLEWELLYN

BELMONT-REDWOOD SHORES SCHOOL DISTRICT JOHN A. SHUPE

 

 

DEMURRER TO FIRst Amended COMPLAINT of PEDRO BY BELMONT-REDWOOD SHORES SCHOOL DISTRICT, ANNE CAMPBELL, JEFFREY KEUSCHER, JAYNE CHELBERG AND

DANIEL LYTTLE

 

 

·         Defendants Belmont-Redwood Shores School District, Anne Campbell, Jeffrey Keuscher, Jayne Chelberg and Daniel Lyttle’s  Request for Judicial Notice is GRANTED as to the original Summons and Complaint, the previous demurrer, Plaintiff’s claim for damages, the defendants’ returning the claim as untimely and that Plaintiff never applied for permission to present a late claim.  The request is DENIED as to Judge Joseph C. Scott’s tentative ruling of May 5, 2014 as irrelevant and DENIED as to copies of news media reports published in March and April 2011 regarding a criminal prosecution of Andre Edwards for his 2001 molestation of Plaintiff.  Media and press reports are not a proper subject for judicial notice.  See e.g. Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1141.  The truth of the content of the articles is not a proper matter for judicial notice.  See Mangini v. R.J. Reynolds Tobacco Company (1994) 7 Cal.4th 1057, 1064.

 

·         Defendants Belmont-Redwood Shores School District, Anne Campbell, Jeffrey Keuscher, Jayne Chelberg and Daniel Lyttle’s Demurrer to the negligence causes of action in the Complaint [Causes of Action 1-5] is SUSTAINED without leave to amend.  The accrual of negligence claims arising from child molestation occurs when either the parent or the child is subjectively aware of the wrongful nature of the perpetrator’s misconduct.  S.M. v. Los Angeles Unified School District (2010) 184 Cal.App.4th 712, 720-21.  Here, the Amended Complaint shows [¶¶2, 30, 31, 32, 34 and 35] that both the plaintiff and her mother were aware of the wrongful nature of Edwards’ molestation on the day it occurred and for that reason, her claims for negligence arising out of the molestation occurred at the time of the molestation in May 2001.  See e.g. V.C. v. Los Angeles Unified School District (2006) 139 Cal.App.4th 499, 515.  She did not timely file a claim so these causes of action are time barred.  Accrual for molestation-based negligent claims against the school district occurs when the child molestation occurs.  Shirk v. Vista Unified School District (2007) 42 Cal.4th 201, 210.

 

·         Defendants Belmont-Redwood Shores School District, Anne Campbell, Jeffrey Keuscher, Jayne Chelberg and Daniel Lyttle’s Demurrer to the causes of action for fraudulent concealment, negligent and intentional misrepresentation and conspiracy is OVERRULED.  The Amended Complaint alleges sufficient factual allegations as to these causes of action to withstand demurrer.

 

·         Defendants Belmont-Redwood Shores School District, Anne Campbell, Jeffrey Keuscher, Jayne Chelberg and Daniel Lyttle’s Demurrer to the cause of action for intentional infliction of emotion distress is SUSTAINED with leave to amend.  The cause of action does not adequately plead that the target defendant[s] engaged in extreme and outrageous conduct which was directed at Plaintiff with the intention of injuring Plaintiff who as a result suffered severe emotional distress.  Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1.

 

·         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 Elizabeth K. Lee, Department 17.

 

_____________________________________________________________________

9:00

6

CLJ 208880       MOAB INVESTMENT GROUP LLC VS. DAVID G. ARELLA, ET AL.

 

 

MOAB INVESTMENT GROUP LLC             BRENDA CRUZ KEITH

DAVID G. ARELLA                       KEVIN S. EIKENBERRY

 

 

MOTION TO STRIKE OR IN THE ALTERNATIVE TAX DEFENDANT RYAN MORAN’S MEMORANDUM OF COSTS BY MOAB INVESTMENT GROUP LLC

 

 

·         Plaintiff Moab Investment Group LLC’s Motion to Strike/Tax Costs is DENIED.  A defendant is entitled to costs when a dismissal is entered in their favor whether the plaintiff voluntarily dismisses or the trial court orders an involuntary dismissal.  Cano v. Glover (2006) 143 Cal.App.4th 326, 331.  Plaintiff voluntarily dismissed Defendant Ryan Moran from this action without prejudice on April 7, 2014.  Accordingly, Defendant is a prevailing party entitled to court costs.

·         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. 

 

MOTION FOR ATTORNEY FEES BY RYAN MORAN

 

 

·         Defendant Ryan Moran’s Motion for Attorney Fees is DENIED.

·         Defendant is not entitled to recover attorney’s fees.  Attorney’s fees can only be collected when they are authorized by contract, statute or law. CCP § 1033.5. There is no statutory or legal authority which would give Defendant Moran the right to recover attorney’s fees.  The subject lease agreement includes a clause providing for attorney’s fees.  The attorney’s fees provision of that agreement is conditioned on a legal action or proceeding being brought by one of the parties to the contract.  (Ex. 1, ¶ 13.)   However, this action was not based on that contract and Plaintiff was not a party to that contract.  Civil Code § 1717 does not apply. The Unlawful Detainer was not initiated to enforce a contract.  It was initiated to enforce Plaintiff’s possessory rights stemming from the non-judicial, trustee’s foreclosure sale and Trustee’s Deed.  It was initiated solely against Defendant David G. Arella.  Plaintiff did not sue Defendant Moran who became a party when he filed a pre-judgment claim of right to possession.

·         Defendant relies primarily upon Santisas v. Goodin (1998) 17 Cal.4th 599 and Todd Daybread v. Chipain Chiropractic Corporation (2007) 151 Cal.App.4th 1063.  Both cases are distinguishable.  Santisas is not a UD action.  It was an action for breach of contract and tort.  It involved breach of a contract for sale of real property.  The plaintiff and defendant were both parties to the agreement.  Todd Daybread is a UD action but it involved a plaintiff and defendant who were both parties to a commercial sub-lease.  The Court ultimately determined that Defendant was entitled to attorney’s fees, not based on Civil Code § 1717, but rather based on Civil Code § 1032(a)(4), holding that the subject attorney’s fee provision in the sub-lease was broad enough to encompass non-contract claims and that holding over after expiration of the sub-lease was a non-contract claim.  Again, in this case, the plaintiff did not file an action against Defendant Moran.  They sought only to evict the former owner Arella.  It was Defendant Moran who insinuated himself into the case by filing a prejudgment claim of right to possession.  Plaintiff did not sue on the contact [lease] and the lease provision here was not broad but specifically limited to “any legal action or proceeding be brought by either party to the agreement.”  The only parties to the agreement were Arella and Moran, not Plaintiff.  There is no contractual or statutory cause to impose attorney’s fees on Plaintiff.

·         It also appears that the motion is untimely. CRC 3.1702 provides that any motion for attorney’s fees has to be made within the time allowed for filing a notice of appeal. See CRC 8.104, 8.108. Plaintiff dismissed Defendant Moran on April 7, 2014, and this motion was not filed until June 17, 2014.  Defendant’s argument that he should be given relief under CCP § 473 is unsupported by any declaration demonstrating mistake, inadvertence, surprise or excusable neglect.

·         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 209501       U.S. BANK NATIONAL ASSOCIATION vs. ROLANDO PEJI, et

                   al.

 

 

EQUITY GROWTH ASSET MANAGEMENT        ERIC G. FERNANDEZ

ROLANDO PEJI                          REUBEN L. NOCOS

 

 

MOTION FOR SUMMARY JUDGMENT AS TO COMPLAINT (UNLAWFUL DETAINER)

of U.S. BANK NATIONAL ASSOCIATION BY EQUITY GROWTH ASSET

MANAGEMENT 401K PROFIT SHARING PLAN

 

 

·         Plaintiff’s Request For Judicial Notice is GRANTED pursuant to Evidence Code § 452(b), (d), (h).

 

·         Plaintiff's unopposed Motion for Summary Judgment is GRANTED.  Plaintiff has established the required elements of unlawful detainer under Code of Civil Procedure § 1161a:  Plaintiff’s ownership and right to possession through the trustee’s private sale and recordation of the trustee’s deed upon sale; termination of the defendants’ right to possession pursuant to a 3-day notice to quit [CCP § 1161a] and the defendants’ continuing possession.  The burden then shifts to Defendants under CCP § 437c(p)(1) to establish a triable issue of material fact.  No opposition has been forthcoming.  Plaintiff is awarded a judgment for possession only.

 

·         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 Elizabeth K. Lee, Department 17.

 

_____________________________________________________________________

9:00

8

CLJ 523384       BUREAUS INVESTMENT GROUP PORTFOLIO NO. 15, LLC VS.

                   FELILA ESIKIA

 

 

BUREAUS INVESTMENT GROUP              MICHAEL D. KAHN

FELILA ESIKIA                         FRED W. SCHWINN

 

 

MOTION TO COMPEL DEPOSITION OF BUREAUS INVESTMENT GROUP PORTFOLIO NO. 15, LLC’S PERSON MOST KNOWLEDGEABLE AND FOR PRODUCTION OF DOCUMENTS AND MONETARY SANCTIONS BY FELILA ESIKIA

 

 

·         On June 18, 2014, Plaintiff Bureaus Investment Group Portfolio No. 15, LLC filed a Motion for Protective Order regarding Defendant’s deposition of Plaintiff’s Person Most Knowledgeable; the hearing date for that Motion is July 29, 2014.  This Motion to Compel Deposition of Plaintiff’s Person Most Knowledgeable was filed on June 24, 2014 with a hearing date of July 23, 2014.  The two motions are cross-motions and will be dealt with together in this motion. The two motions are GRANTED in part and DENIIED in part as set forth below.

 

·         The issues are direct and clear:  Defendant wants an order compelling the deposition of Plaintiff’s Person Most Knowledgeable and Plaintiff wants a Protective Order precluding such deposition. The Court is considering both of these motions together and will render one order. It is noted that the Reply by Defendant in support of Defendant’s Motion to Compel was filed on July 18th.  It was due on July 16th and will not be considered.  Defendant did not file an Opposition to Plaintiff’s Motion for a Protective Order.

 

·         Plaintiff argues that the Complaint herein seeks damages of only $1,699.48 and that Plaintiff’s Person Most Knowledgeable will have to fly from Illinois and spend one night in the Bay Area.  The Court acknowledges the cost/benefit argument, but also is aware that Defendant only gets one deposition in a limited jurisdiction case and has properly noticed this deposition.

 

·         The Court’s order is that the deposition of Plaintiff’s Person Most Knowledgeable shall go forward on a mutually convenient date in San Jose, California; however, the cost of airfare (round trip) and hotel charges (one night) will be split equally between Plaintiff and Defendant.  Before the deposition commences, the parties shall meet and confer over the costs.  Defendant shall tender her half of the costs before the deposition commences.

 

·         As for the production of documents at the deposition, Plaintiff cited to CCP § 2025.450(b)(1) requiring that the moving party show fact specific good cause justifying the production of documents set forth in the notice of deposition.  Defendant did not show fact specific good cause justifying the production of documents, and therefore the Request for Documents is DENIED.

 

·         The Requests for Sanctions by Defendant and Plaintiff are DENIED. The hearing date for Plaintiff’s Motion for a Protective Order (July 29, 2014) is vacated.

 

·         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 Elizabeth K. Lee, Department 17.

 

_____________________________________________________________________

9:00

9

CLJ 526169       MIDLAND FUNDING LLC VS. KARIM ZARRINNAM

 

 

MIDLAND FUNDING LLC                   SARAH A. ROBINSON-MCELROY

KARIM ZARRINNAM                       PRO/PER

 

 

MOTION FOR ORDER ESTABLISHING ADMISSIONS BY MIDLAND FUNDING LLC

 

 

·         Plaintiff Midland Funding LLC’s unopposed Motion to Deem Matters Admitted is GRANTED pursuant to CCP § 2033.280.  The Request for Admissions [Set No. 1] was served on Defendant and no responses have ever been filed.  All those matters contained in Plaintiff’s Request for Admissions [Set No.1] dated March 21, 2014 are hereby deemed admitted.  Defendant shall also pay sanctions in the amount of $90.00 pursuant to CCP § 2033.280.

 

·         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. 

 


 

 

In the Superior Court of the State of California

In and for the County of San Mateo

 

Special Set Law and Motion Calendar

Judge: Honorable V. RAYMOND swope

Department 23

 

400 County Center, Redwood City

Courtroom 7D

 

JULY 23, 2014

 

IF YOU INTEND TO APPEAR ON ANY CASE ON THIS CALENDAR YOU MUST DO THE FOLLOWING:

3.  YOU MUST CALL (650) 261-5123 BEFORE 4:00 P.M. TO INFORM THE COURT OF YOUR INTENT TO APPEAR.

4.  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.  

 

Case                   Title / Nature of Case

9:00

1

CLJ 503898    CHRISTOS PARISIS VS. ROYAL MORTGAGE REAL ESTATE AND

                INVESTMENT CORPORATION, ET AL.

 

 

CHRISTOS PARISIS                      KEVIN A. TAHENY

ROYAL MORTGAGE REAL ESTATE            CHRISTOPHER K. JAFARI

 

 

MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT BY HELEN SOTIRIADIS AND JOHN SOTIRIADIS

 

 

·         MATTER CONTINUED TO SEPTEMBER 17, 2014 AT 9:00 A.M. IN DEPARTMENT 23.

 

_____________________________________________________________________

9:00

2

CLJ 503899    CHRISTOS PARISIS VS. ROYAL MORTGAGE REAL ESTATE AND

                INVESTMENT CORPORATION, ET AL.

 

 

CHRISTOS PARISIS                      KEVIN A. TAHENY

ROYAL MORTGAGE REAL ESTATE            CHRISTOPHER K. JAFARI

 

 

MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT BY HELEN SOTIRIADIS AND JOHN SOTIRIADIS

 

 

·         MATTER CONTINUED TO SEPTEMBER 17, 2014 AT 9:00 A.M. IN DEPARTMENT 

  23.

 

_____________________________________________________________________

 

 

 

 


POSTED:  3:00 PM

 

© 2014 Superior Court of San Mateo County