October 24, 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

 

OCTOBER 22, 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 515331       S.J. AMOROSO CONSTRUCTION CO., INC. VS. D J K

                   CONSTRUCTION, INC., ET AL.

 

 

S.J. AMOROSO CONSTRUCTION CO., INC.   JANETTE G. LEONIDOU

D J K CONSTRUCTION, INC.              RODNEY A. MARIANI

 

 

MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT BY S.J. AMOROSO CONSTRUCTION CO., INC.

 

 

·         The motion is granted.  There is a policy in favor of permitting the amendment of pleadings and defendant has not offered evidence sufficient to show that any prejudice will result from the proposed amendment.  Plaintiff shall file the proposed First Amended Complaint no later than October 24, 2014. 

 

·         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

2

CIV 519467       UNIFUND CCR, LLC VS. ANDREW A. DIOLI

 

 

UNIFUND CCR, LLC                      MATTHEW W. QUALL

ANDREW A. DIOLI                       DENNIS R. WHEELER

 

 

MOTION TO QUASH SERVICE OF SUMMONS BY ANDREW A. DIOLI

 

 

·         Defendant's unopposed motion to quash service of summons is 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.

 

 

_____________________________________________________________________

 

9:00

3

CIV 521606       JOSE ALBERTO DURAN VS. NICHOLAS A. CRISAFI

 

 

JOSE ALBERTO DURAN                    CHRISTOPHER WIMMER

THE CRISAFI FAMILY LIMITED PARTNERSHIP ISAAC DELEON GOODMAN

 

 

MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT OF PLAINTIFF BY LUCAS SORENSEN AND MICHELLE CRISAFI AS TRUSTEES OF THE NICHOLAS A. CRISAFI REVOCABLE TRUST

 

 

·         Given the proximity of the trial date, the court has decided to consider both the insufficiently noticed motion and the untimely opposition. 

 

·         Defendants' request for judicial notice is granted.

 

·         Defendants' motion to strike portions of the 1st amended complaint is denied.  Plaintiff has sufficiently alleged facts to support a claim for punitive damages.

 

·         Defendants seek to strike the request for punitive damages from the 2nd C/A for forcible entry (¶24), the 3rd C/A for forcible detainer (¶30), the 4th C/A for ejectment (¶36), the 6th C/A for intentional interference with prospective economic advantage (¶46) and the prayer.

 

·         Paragraphs 24, 30, 36 and 46 allege: "Crisafi’s conduct was characterized by oppression (because it was despicable and subjected Duran to unjust hardship in conscious disregard of his rights) and malice (because it was carried out with intent to cause injury to Duran) sufficient to support an award of punitive damages."  While this language is conclusory, the court must look at the rest of the complaint to determine whether sufficient facts were alleged to support the conclusory allegations.  Pleading in the language of the statute is not objectionable when sufficient facts are alleged to support the allegation.”  [Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6-7.]

 

·         The First Amended Complaint asserts that in June of 2011, plaintiff informed Michelle Crisafi, Nicholas’ daughter and agent, that he would be absent from his shop for few months but the shop would continue in his absence and Michelle stated she saw no problem with the arrangement (¶3).  From 6/11-8/11, plaintiff was absent from the shop but ensured a friend continued to pay rent on the property (¶4).  In early September, plaintiff received word Crisafi had changed the locks and removed all of plaintiff's equipment, machinery and stock (totaling $150,000) without seeking/receiving judicial approval for the ejection (¶4).  When plaintiff returned to his shop, he found the reports were true.  (¶5) In early November, plaintiff called Crisafi, who stated he had heard plaintiff was an undocumented immigrant (which was untrue) and decided to close the shop and take back the premises in order to lease it to someone else (¶6).  When plaintiff made a report to the Burlingame Police Department, explaining he'd been locked out and his property removed, the police contacted Crisafi, who called plaintiff and asked what he wanted.  Plaintiff explained he wanted to have his equipment returned and shop reopened so he could return to business, but Crisafi refused (¶6).  Plaintiff learned from nearby business owners that Crisafi’s employees had spent several days emptying the shop and carting away every piece of equipment, machinery and stock (¶7).  These paragraphs are incorporated by reference into every cause of action.

 

·         Defendants cite to Cyrus v. Haveson (1976) 65 Cal.App.3d 306, 316-17, where the court explained that a cause of action for forcible entry and detainer supports punitive damages in an amount not in excess of three times actual damage in lieu of actual damage where malice is shown. CCP §1174(b).  The Cyrus court found that the plaintiff before it had pled malice only in conclusory terms and there were no general or specific allegations of wrongful motive, intent, or purpose. 

 

·         Here, plaintiff has alleged he informed Crisafi’s daughter/agent he would be absent from the shop for a while and insured that rent would continue to be paid.  Without taking any legal steps to evict plaintiff, Crisafi changed the locks and removed plaintiff's equipment, machinery and stock.  Crisfafi did so not because plaintiff owed rent, but upon his mistaken belief that plaintiff was an illegal immigrant.  These allegations are sufficient to support a claim for punitive damages.

 

·         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 524733       GUADALUPE SEGURA, JR., et al.  VS. BANK OF AMERICA,

                   N.A., ET AL.

 

 

GUADALUPE SEGURA, JR.                 JOHN HOLMAN

BANK OF AMERCA, N.A.                  MARGARET K. THIES

 

 

MOTION TO RECONSIDER THE COURT'S WAIVING PLAINTIFFS’ RIGHT TO A JURY TRIAL FOR FAILURE TO POST JURY FEES BY GUADALUPE SEGURA, JR. AND MARIA SEGURA

 

 

·         This motion seeks reconsideration of a ruling issued by Judge Dylina.  The parties are directed to contact the courtroom clerk in Department 7 at (650) 261-5107 to specially set a hearing before Judge Dylina.

 

 

_____________________________________________________________________

 

9:00

5

CIV 525175       GRACE B. PANGILINAN VS. WILBERT ALVAREZ, ET AL.

 

 

GRACE B. PANGILINAN                   ANANT N. PRADHAN

WILBERT ALVAREZ                       CHARNEL JAMES

 

 

MOTION FOR SANCTIONS AND TO COMPEL FURTHER DISCOVERY BY GRACE B. PANGILINAN

 

 

·         Plaintiff’s Motion to Compel Further Responses to Special Interrogatories No. 8 is GRANTED pursuant to CCP § 2030.300. 

 

·         Plaintiff’s request for sanctions is DENIED.  Defendants did comply with the May 1, 2014 Order Compelling Discovery Responses by providing responses to Plaintiff’s First Set of Requests for Production of Documents on May 20, 2014.  If Plaintiff finds these responses unsatisfactory, she should file a Motion to Compel Further Responses to these document requests.  See CCP § 2031.310.  If at that time no further responses are forthcoming, Plaintiff may be able to seek appropriate evidence sanctions. 

 

·         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

6

CIV 525758       N.A. SALES COMPANY, INC. VS. HAE-SUK LEE, ET AL.

 

 

N.A. SALES COMPANY, INC.              BRIAN H. SONG

HAE-SUK LEE

 

 

MOTION TO VACATE ORDER ON PLAINTIFF N.A. SALES COMPANY, INC.'S AND THRID PARTIES' JOINT EX PARTE APPLICATION UNDER C.C.P. SECTION 491.17(C); MOTION TO DISQUALIFY COUNSEL AND MOTION FOR SANCTIONS BY HYEONG GEON LEE

 

 

·         The Court notes that Defendant’s counsel David Henshaw and the Henshaw Law Office failed to abide by CRC Rule 3.1110(f) (requiring hard tabs between exhibits) regarding the Declaration of David Henshaw, making it more difficult for the Court to locate supporting evidence among non-separated exhibits.  The Court directs Counsel to comply with Rule 3.1110(f) in all subsequent motions in all matters before the court.

 

·         The motion to vacate order is denied.  The facts do not support the conclusion that Mr. Song lied to the court to obtain the ex parte order restraining enforcement of judgment.  Mr. Henshaw informed Mr. Song, by email dated August 19, 2014, that Mr. Henshaw’s clients had assigned him “the sanctions award” against Mr. Song and Mr. Im.  The purported assignment was legally impossible, since the judgment was not signed until August 26, 2014, and not entered until September 2, 2014.  Further, a statement by an attorney is unpersuasive evidence of the actual assignment.  Under these facts, the Court concludes that Mr. Song was not ethically obligated to inform this Court about the August 19, 2014 email from Mr. Henshaw.  The facts to not justify vacating the order issued by Judge Grandsaert on September 15, 2014.

 

·         The motion for sanctions is also denied.  In addition to lacking a factual basis, the motion fails to comply with the waiting period mandated by Code of Civil Procedure section 128.7.

 

·         The motion to disqualify is denied.  

 

·         If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiff shall prepare for the Court’s signature a written order consistent with the above ruling, 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

7

CIV 529715       BARRY LEE BRYAN VS. SCOTT DAY, ET AL.

 

 

BARRY LEE BRYAN                       JACKSON A. MORRIS

SCOTT DAY                             GEOFFREY MURRY

 

 

PETITION FOR ORDER COMPELLING ARBITRATION BY SCOTT DAY, AMY DAY AND CAMERON ST. CLAIR

 

 

MOTION TO STAY PROCEEDINGS PENDING HEARING ON PETITION FOR ORDER COMPELLING ARBITRATION BY SCOTT DAY, AMY DAY AND CAMERON ST. CLAIR

 

 

·         The Petition to Compel Arbitration brought by Defendants Scott & Amy Day and Cameron St. Clair is GRANTED pursuant to CCP §1281.2 and the parties’ agreement to arbitrate pursuant to Paragraph 13 and Exhibit “A” to the Master Vendor Agreement.

 

·         California law favors enforcement of arbitration provisions and doubts regarding the scope of the issue should be resolved in favor of enforcement.  Erickson, Arbuthnot et al. v. 100 Oak St. (1983) 35 Cal 3d 312, 322.  CCP 1281.1 provides that a written agreement to arbitrate is valid, enforceable and your revocable, save upon such grounds as exists for the revocation of any contract. Grounds for revocation of the contract containing the arbitration provision include mistake, lack of capacity, undue influence, material failure of consideration, duress, illegality and fraud.

 

·         Defendants have provided a copy of the Master Vendor Agreement executed by plaintiff Barry Bryan on January 13, 2014.  That agreement was executed on behalf of the owners by their agent Cameron St. Clair.  That agreement contains an arbitration provision in paragraph 13 and in Exhibit A to that agreement.  Plaintiff’s opposition sets forth the allegation that defendant Tyson Snyder, the Day defendants’ project manager at the jobsite, did not provide him with the entirety of the agreement.  A party’s failure to read the arbitration provision in the offered contract is not a basis for rescission.  See Bolanos v. Khalatian (1991) 231 Cal App 3d 1586, 1590.

 

·         Here defendants have presented a signed copy of the agreement and plaintiff has not provided any evidence that it is not his signature on the agreement.

 

·         The motion to stay the proceedings pending the hearing on the petition to compel arbitration is moot in light of the court’s ruling granting the motion to compel arbitration.

 

·         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

CIV 530275       ALONDRA MERAZ VS. INTERMUNE, INC., ET AL.

 

 

ALONDRA MERAZ                         DAVID E. BOWER

INTERMUNE, INC.                       KAI PETERS

 

 

MOTION TO DISMISS BASED UPON EXCLUSIVE FORUM SELECTION PROVISION BY INTERMUNE, INC., DANIEL WELCH, LARS EKMAN, JEAN-JACQUES BIENAIME, LOUIS DRAPEAU, JAMES HEALY, DAVID KABAKOFF, ANGUS RUSSELL AND FRANK VERWIEL

 

 

·         This matter is moot.  The case was dismissed without prejudice by Judge Buchwald on October 21, 2014.

 

 

_____________________________________________________________________

 

9:00

9

CIV 530290       SAMUEL A. CORABI, ET AL. VS. INTERMUNE, INC., ET AL.

 

 

SAMUEL A. CORABI                      DAVID T. WISSBROECKER

INTERMUNE, INC.                       KAI PETERS

 

 

MOTION TO DISMISS BASED UPON EXCLUSIVE FORUM SELECTION PROVISION BY INTERMUNE, INC., DANIEL WELCH, LARS EKMAN, JEAN-JACQUES BIENAIME, LOUIS DRAPEAU, JAMES HEALY, DAVID KABAKOFF, ANGUS RUSSELL AND FRANK VERWIEL

 

 

·         Plaintiff’s unopposed Motion to Dismiss without Prejudice is GRANTED.

 

 

_____________________________________________________________________

 

 

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 GEORGE A. MIRAM

Department 28

 

400 County Center, Redwood City

Courtroom 2F

 

OCTOBER 22, 2014

 

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

 you must call (650) 261-5128 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 530103       JENNY OLVERA VS. PETER DONIGAN

 

 

JENNY OLVERA                          THOMAS J. GUNDLACH

PETER DONIGAN                         THOMAS J. FEENEY

 

 

MOTION FOR ORDER GRANTING PREFERENCE ON THE TRIAL SETTING CALENDAR AND ASSIGNING TRIAL DATE BY JENNY OLVERA

 

 

·         APPEAR. 

 

 

______________________________________________________________________

 

 

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