February 19, 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, February 15, 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

 

 

 

 

 

 

 

 

9:00

Line: 1

16-CIV-00073     DONNA D. SITU vs. J. HAINES ENTERPRISES, INC., et al.

 

 

JAMES HANLEY HAINES                   MICHAEL R. REYNOLDS

DONNA D. SITU                         WILLIAM C. LAST, JR.

 

 

MOTION FOR LEAVE TO FILE CROSS COMPLAINT

TENTATIVE RULING:

 

The Motion is granted.  The proposed cross-complaint arises from the same transaction as the complaint and plaintiff has stipulated to the requested relief.

 

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

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16-CIV-00229     ELEONOR HILARIO vs. JERRY AARON JENKINS, et al.

 

 

JERRY AARON JENKINS                   TIMOTHY P. MCDONALD

ELEONOR HILARIO                       JONATHAN BRAND

 

 

MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT

TENTATIVE RULING:

 

 

Defendant’s Motion to Strike the punitive damages claim in the Complaint is DENIED.  Defendant is correct that Plaintiff’s form Complaint includes conclusory allegations that Defendant acted with intent, malice, and a “conscious disregard of the rights or safety of others.” Civ. Code Sect. 3294.  However, a complaint is not insufficient simply because ultimate facts are intermingled with conclusions of law. Perkins v. Sup. Ct. (1981) 117 Cal.App.3d 1, 6-7.  The Complaint also alleges Plaintiff was standing three feet from his vehicle, that Defendant saw Plaintiff and exchanged words with her, and that Defendant then got into the vehicle, moved forward, and “immediately” backed into the same spot in which he knew Plaintiff had just been standing.  The Complaint also alleges Plaintiff never moved until she was hit, which suggests she was hit while standing in the same spot Defendant had just seen her standing.  (Complaint, PLD-PI-001(2)-(3).  Read as a whole, the Complaint’s factual allegations are enough at the pleading stage to support the contention that Defendant acted either with intent, or with a conscious disregard of Plaintiff’s safety. 

 

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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CIV534696     RYKER EDISCOVERY LLC VS. FREITAS ANGELL, ET AL.

 

 

RYKER EDISCOVERY LLC                  JAMES KIM

FREITAS ANGELL & WEINBERG LLP         Jason S. Angell

 

 

MOTION FOR SUMMARY ADJUDICATION OF ISSUES

TENTATIVE RULING:

 

The Motion of Defendant Freitas Angell & Weinberg LLP fka Freitas Tseng Baik & Kauffman LLP (“Defendant”) for Summary Judgment, or in the alternative, Summary Adjudication, is ruled on as follows:

 

(1) Defendant moves for summary judgment to Plaintiff Ryker eDiscovery LLC’s (“Plaintiff”) breach of contract claim in the First Amended Complaint, or alternatively, summary adjudication on Defendant’s first affirmative defense (statute of limitations) and Defendant’s seventh affirmative defense (failure to state a claim).

 

(2) Defendant’s motion for summary judgment is DENIED.    An action is on a written contract, even though it is based on a promise implied from the writing.   (Amen v. Merced County Title Co. (1962) 58 Cal.2d 528, 532.)  A triable issue of material fact exists as to whether there was a written contract between Plaintiff and Defendant, even though Plaintiff admitted that the contract was not signed by Defendant. (See Plaintiff’s Response to Defendant’s Undisputed Material Facts nos. 15, 17, 19; An Decl. ¶¶ 4-10.) 

 

Further, Plaintiff’s response to Defendant’s request for production no. 2 is not an admission that there was no contract between the parties.  (See Plaintiff’s Response to Defendant’s Undisputed Material Facts no. 18.)  Plaintiff points out that request no. 1 asks for a copy of the contract referenced in the First Amended Complaint, to which Plaintiff agreed to produce it.  Thus, both of these requests, when read as a whole, do not support that Plaintiff admitted there was no written contract between the parties.  (See Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1524-1525 [While a trial court is permitted to disregard evidence from a party opposing a summary judgment that contradicts his or her own discovery responses (absent a reasonable explanation for the discrepancy), it does not countenance ignoring other credible evidence that contradicts or explains that party’s answers or otherwise demonstrates there are genuine issues of factual dispute].)

 

(3) Defendant’s motion for summary adjudication to Defendant’s seventh affirmative defense of failure to state a claim, is DENIED.   Defendant contends that the First Amended Complaint fails to allege whether the contract is written, oral or implied by conduct.  However, the First Amended Complaint expressly alleges that “on or about April 5, 2011, Plaintiff entered into that certain contract "Database Hosting Agreement" (the "Contract") with Defendant, whereby Plaintiff agreed to perform the Services for Defendant in exchange for fees and charges as more fully set forth in the Contract.”  (First Amended Complaint ¶ 8(c).)  Thus, the allegations support that Plaintiff is claiming a written agreement existed between the parties. 

 

(4) Defendant’s motion for summary adjudication to Defendant’s first affirmative defense based on statute of limitations is DENIED, except as to Invoice no. 5846 to which summary adjudication is GRANTED based on the statute of limitations.  (See Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1854–1855 [Under Code of Civil Procedure section 437c(f), a party may present a motion for summary adjudication challenging a separate and distinct wrongful act even though combined with other wrongful acts alleged in the same cause of action.].)

Triable issues of material fact exist as to whether a written contract exists between the parties and therefore whether the four year statute of limitations applies to Plaintiff’s breach of contract claim.  (See Amen v. Merced Cty. Title Co. (1962) 58 Cal.2d 528, 532-533; see Plaintiff’s Response to Defendant’s Undisputed Material Facts nos. 15, 17, 19; An Decl. ¶¶ 4-10.)  The unpaid invoices that are the subject of Plaintiff’s breach of contract claim are for services performed by Plaintiff between May 2011 through February 2014.  (See Angell Decl., Exhs. 2 and 3.)  As such, Defendant has only established that Invoice no. 5846 is barred if the four year statute of limitations applies.  Invoice no. 5846 is for services performed by Plaintiff in May 2011 and has a payment due date of June 30, 2011.  (See Angell Decl., Exh. 3.)  The Complaint in this action was filed on July 28, 2015, which is more than four years after Defendant’s alleged breach by failing to pay Invoice no. 5846. 

 

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 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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Line: 4

CIV535720     KENNETH MARKS VS. WATERFRONT TOWER PARTNERS, ET AL.

 

 

KENNETH MARKS                         ROBERT DE VRIES

ACUMEN, LLC                           STEVEN B. HALEY

 

 

MOTION RE: JUDGMENT ON THE PLEADINGS

TENTATIVE RULING:

 

This matter is continued for hearing to March 1, 2017 at 9:00 a.m. in the Law and Motion department.

 



9:00

Line: 5

CIV537870     ELIJAH BIGGS, ET AL. VS. ESTATE OF JOHN LEE PREYER, JR.

 

 

ELIJAH BIGGS                          ROBERT G. HOWIE

ESTATE OF JOHN LEEPREYER JR.          PAUL YEE

 

 

MOTION FOR SUMMARY JUDGMENT/ADJUDICATION OF ISSUES

TENTATIVE RULING:

 

Defendant Rahul Patel’s unopposed motion for summary judgment is GRANTED.

 

The second cause of action alleges that Defendant Patel violated Health & Safety Code section 103900 by failing to notify the Department of Motor Vehicles that Decedent John Lee Preyer had been diagnosed with conditions that would impair his ability to operate a motor vehicle. (Complaint para. 20.) The second cause of action alleges that Decedent Preyer was showing signs of early dementia and was frequently confused. (Complaint paragraph 18.) It alleges that Defendant Patel, as Mr. Preyer’s doctor, “was aware and had knowledge of signs of early dementia and confusion” in Mr. Preyer. (Id. para. 19.)

 

Mr. Preyer’s medical charts contain no information relating to dementia, confusion, lapses of consciousness, inability to perform daily living activities, or impairment of sensory motor functions. The absence of any information on these conditions supports the conclusion that Defendant Patel had no knowledge that Mr. Preyer might have suffered from any of these conditions. Therefore, the only reasonable inference is that Defendant Patel was under no obligation to report to the Department of Motor Vehicles that Mr. Preyer suffered from any of these conditions.

 

The third cause of action alleges that Defendant Patel breached his duty of care in treating Mr. Preyer. Plaintiffs allege no duty of care owed to them by Defendant Patel in his treatment of Mr. Preyer. The only potential duty owed by Defendant Patel to third persons such as Plaintiffs is the duty to “report signs of dementia and confusion” in Mr. Preyer. (Complaint para. 29.) As set forth above, the undisputed facts demonstrate that Defendant Patel had no knowledge that Mr. Preyer was suffering from early stages of dementia, confusion, or any other impairment of his ability to operate a motor vehicle.

 

Defendant’s having established a prima facie case that he did not breach any duty, the burden shifts to Plaintiffs to raise a triable issue of material fact as to the question of breach. (Code of Civ. Proc. Para.  437c, subd. (p)(2).)  Having filed no opposition, Plaintiffs fail to meet this burden. 

 

The only causes of action against Defendant Patel are the second and third causes of action, which have no merit. The motion for summary judgment is granted.

 

The Court relies on Undisputed Material Facts 1 through 9 of Issues One and Two. The Court relies on the medical charts of John Lee Preyer (Exhibit A to Declaration of Kanter), and the Declaration of Steven Fugaro, paragraphs 1 through 15.

 

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 Richard H. DuBois, Department 16.

 



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LineS: 6 & 7  

CIV538867     MACK A MCCALLUM VS. FACEBOOK, INC.

 

 

FACEBOOK, INC.                        JULIE E. SCHWARTZ

MACK A. MCCALLUM                      Pro/PER

 

 

6. SPECIAL MOTION TO STRIKE AND FOR ATTORNEY'S FEES AND COSTS PURSUANT TO C.C.P. 425.16

TENTATIVE RULING:

 

Defendant Facebook, Inc.’s Special Motion to Strike and For Attorney’s Fees and Costs Pursuant to CCP sec. 425.16 is GRANTED.

 

Code of Civil Procedure § 425.16(b)(1) provides: “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”

 

Section 425.16(b)(2) further states, “In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.”

 

A defendant specially moving to strike has the burden to show that the conduct underlying a cause of action arises from protected activity. City of Cotati v. Cashman, 29 Cal. 4th 69, 79 (2002). Defendant has done that by demonstrating that its exercise of editorial discretion in suspending his account is an act of free speech on a matter of public concern that is protected by the First Amendment. Furthermore, Defendant has a First Amendment right in choosing not to speak by refusing to publish Plaintiff’s Facebook page.

 

Once this has been established, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the claim. Zamos v. Stroud, 32 Cal. 4th 958, 965 (2004). To do so, the plaintiff must show that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence is credited. Id.

 

Plaintiff has not demonstrated a probability of prevailing on the claims in his complaint, nor has he produced any evidence at all, let alone evidence establishing a prima facie case which, if believed by a trier of fact, will result in a judgment for the Plaintiff. Mattel, Inc. v. Luce, Forward, Hamilton & Scripps, 99 Cal. App. 4th 1179, 1188-1189 (2002). 

 

Therefore, the motion is GRANTED.

 

As the prevailing party, FACEBOOD is entitled to recover its attorney’s fees and cost.  CCP Section 425.16 (C)(1).  However, defendant included no mention of the fees and costs incurred and, therefore, none are awarded.

 

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 Richard H. DuBois, Department 16.

 

 

 

7. FACEBOOK, INC.’S NOTICE OF HEARING ON DEMURRER

TENTATIVE RULING:

 

Defendant Facebook, Inc.’s Demurrer is OFF-CALENDAR as moot, due to the ruling above.

 



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CLJ538036     RINEHART OIL, INC. VS. HUGO CENTENO, ET AL.

 

 

 

RINEHART OIL, INC.                    LORNA WALKER

HUGO A. CENTENO

 

 

MOTION FOR ORDER TO COMPEL RESPONSES TO DEMAND FOR INSPECTION OF DOCUMENTS AND FOR SANCTIONS

TENTATIVE RULING:

 

The motion is DENIED WITHOUT PREJUDICE for lack of sufficient proof of service.  The proof of service for the discovery and this motion indicates def was served by mail at an address in Daly City.  Defendant’s address of record, as stated on his answer is 8618 B Street Oakland, CA. 94621.  This is also the address of service of the Summons and Complaint. 

 



 

 

 

 

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, February 15, 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

9:00

Line: 1

16-CIV-00138     JOSE PALOMINO vs. FACEBOOK, INC.

 

 

JOSE PALOMINO                         TODD D. CARPENTER

FACEBOOK, INC.

 

 

Complex Case Status Conference

Tentative Ruling:

 

This matter having been removed to Federal Court on July 27, 2016, the Complex Case Status Conference is continued for 90 days to May 17, 2017 at 9:00 a.m. on the Presiding Judge’s Law and Motion Calendar.

 



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Line: 2

16-CIV-01521     KEANA FISHER vs. ENTERPRISE RENT-A-CAR COMPANY OF

                    LOS ANGELES, LLC

 

ENTERPRISE RENT-A-CAR COMPANY         BENJAMIN JUHYEOK KIM

OF LOS ANGELES, LLC                  

FISHER, KEANA                         MARK S. GREENTSTONE

 

 

Complex Case Status Conference

Tentative Ruling:

 

This matter having been removed to Federal Court on October 11, 2016, the Complex Case Status Conference is continued for 90 days to May 17, 2017 at 9:00 a.m. on the Presiding Judge’s Law and Motion Calendar.

 



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Line: 3

CIV536725     JAMES HAGGARTY, ET AL. VS. CHARLES HAGGARTY, ET AL.

 

 

MARY E. HAGGARTY-ROBERTS              SHAUNA N. CORREIA

CHARLES HAGGARTY                      WALTER TRAVER, J.R.

 

 

Motion to Continue Trial Date

Tentative Ruling:

 

Plaintiff’s Motion to Continue Trial is MOOT. The Court received from Plaintiff both a Notice of Settlement of Entire Case filed with the court on February 6, 2017 as well as a Request for Dismissal with prejudice also filed with the Court on February 6, 2017.

 

 


 

 

 

 

 

 


POSTED:  3:00 PM

 

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