August 23, 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

 

AUGUST 20, 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 515674       CHRISTINA ABELLERA, ET AL. VS. STEVE HUNG CHIU, ET

                   AL.

 

 

CHRISTINA ABELLERA                    MARK W. SWANSON

STEVE HUNG CHIU                       G. KELLEY REID

 

 

MOTION TO REOPEN DISCOVERY BY EBAY, INC.

 

 

·         Defendant eBAY, INC.’s Motion to Reopen Discovery is DENIED.  Defendant’s moving papers do not satisfactorily demonstrate the necessity and reasons for reopening discovery nor Defendant’s diligence in completing its discovery earlier.  The Court finds that reopening discovery at this late date will likely prevent the case from going to trial on the date set and result in prejudice to Plaintiffs and Defendant STEVE CHIU.  Accordingly, the motion is denied pursuant to Code of Civil Procedure § 2024.050. 

 

·         Plaintiffs’ evidentiary objection is SUSTAINED as to Objection No. 1 to the Declaration of Michael A. Wahlander. 

 

·         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 517052       JAMES STUCKY, ET AL. VS. EDWARD LAMANTIA, ET AL.

 

 

JAMES STUCKY                          P. KURT PETERSON

EDWARD LAMANTIA                       CHARLES H. RIBLE

 

 

DEMURRER TO first Amended CROSS-COMPLAINT of LAMANTIA BY ROBERT J. RITZ AND BARBARA RITZ

 

 

·         This matter is moot.  The Court has been advised that there has been a settlement conference and all parties agree to have this taken off calendar.

 

_____________________________________________________________________

9:00

3

CIV 520683       SUE FINNEGAN-DAHLZ VS. METLIFE HOME LOANS, LLC, ET

                   AL.

 

 

SUE FINNEGAN-DAHLZ                    SARAH ADELAARS

METLIFE BANK, N.A.                    P. BRUCE CONVERSE

 

 

MOTION FOR SUMMARY JUDGMENT AS TO COMPLAINT of FINNEGAN-DAHLZ BY METLIFE HOME LOANS, LLC

 

 

·         This matter is moot.  A dismissal with prejudice was entered on July 16, 2014.

 

_____________________________________________________________________

9:00

4

CIV 521052       JEFFREY HARE, ET AL. VS. AMERIGAS PROPANE, L.P., ET

                   AL.

 

 

JEFFREY HARE                          JEREMY CLOYD

AMERIGAS PROPANE LP                   JENNIFER R. FEARNOW

 

 

MOTION TO COMPEL DEPOSITION TESTIMONY OF STEPHANIE HARE BY AMERIGAS PROPANE, L.P.; AMERIGAS PARTNERS, L.P.; AMERIGAS PROPANE, INC. AND KRISTIAN P. VEGA

 

 

·         This matter is moot.  In a letter received on August 14, 2014, defendant AmeriGas Propane, L.P. requested that the matter be taken off calendar due to the settlement of the case at mediation.

 

_____________________________________________________________________

9:00

5

CIV 528718       JAMES JOSEPH BERTOLDI VS. GARY ROYCE, ET AL.

 

 

JAMES JOSEPH BERTOLDI                 JOHN ROBERT UNRUH

GARY ROYCE                            ALBERT K. MARTIN

 

 

DEMURRER TO COMPLAINT of BERTOLDI BY GARY ROYCE AND LAW OFFICES OF MODENA & ROYCE

 

 

·         Defendants Gary Royce and Law Offices of Modena & Royce’s general Demurrer to the Plaintiff’s Complaint is OVERRULED.  The Complaint sufficiently states facts supporting a cause of action for legal malpractice.  See Paragraphs 13, 17, 18 and 21.  An attorney, under contract with a testator, owes a duty to the intended third party beneficiaries.  Lucas v. Hamm (1961) 56 Cal.2d 583, 591.  Plaintiff has alleged that he was an intended beneficiary of the trust amendment drafted by Defendant.  He has sufficiently pleaded facts that Defendant owed him a duty of care, breached that duty and was the proximate cause of his damage.

 

·         Defendants’ special Demurrer for uncertainty is OVERRULED. Defendants drafted the subject trust amendment.  As the drafters and as attorneys, they presumably are in possession or control of facts enabling them to respond to this claim.  See Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.

 

·         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

CIV 529640       IN RE: R. SEAGRAVES

 

 

NOVATION FUNDING, LLC                 MATTHEW R. EASON

 

 

PETITION FOR APPROVAL OF TRANSFER OF STRUCTURED SETTLEMENT PAYMENT RIGHTS BY NOVATION FUNDING, LLC DBA NOVATION SETTLEMENT SOLUTIONS

 

 

·         While Petitioner has complied with Insurance Code § 10139.5(c)(2) and there is proper notice, Petitioner’s unopposed Petition for Approval of Structured Settlement Payment Rights is DENIED.  The transfer of the structured settlement payment rights does not appear to be fair or reasonable under the circumstances.  The amount she is receiving [$16,238.00] is too small a percentage of the amount being transferred [$306,565.36].

 

·         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 516721       CACH, LLC VS. JOSEPHINE ALTAMIRANO

 

 

CACH, LLC                             GLORIA ZARCO

JOSEPHINE ALTAMIRANO

 

 

MOTION FOR ENTERING JUDGMENT PURSUANT TO DEFENDANT'S DEFAULT UNDER STIPULATION FOR ENTRY OF JUDGMENT BY CACH, LLC

 

 

·         Plaintiff CACH, LLC’s Motion for Entry of Judgment is DENIED. Defendant has never entered an appearance in this matter. Accordingly, the Court has no jurisdiction over the defendant or the settlement agreement as required by CCP § 664.6.

 

·         Any written settlement agreement outside of court must be signed by the parties to the action.  CCP § 664.6.  This has been interpreted to mean that the settlement must be signed by both the party seeking to enforce the agreement under § 664.6 and the party against whom it is to be enforced.  Harris v. Rudin, Richmond & Appel (1999) 74 Cal.App.4th, 299, 305; Weil & Brown Civil Procedure Before Trial 12:953.

 

·         The term “parties” is used by CCP § 664.6 to mean the litigants themselves, not their attorneys of record or their agents.  Levy v. Superior Court (1995) 10 Cal.App.4th 578, 585.  Weil & Brown Civil Procedure Before Trial 12:956.  While attorneys may act for their clients on other matters, settlement is such a serious matter that it requires the client's knowledge and express consent.  The client’s signature (or oral stipulation before the Court) tends to assure this.  Levy v. Superior Court, supra, 10 Cal.4th at 585; Weil & Brown Civil Procedure Before Trial 12:957.

 

·         According to the moving papers, on October 24, 2012, Defendant entered into a written stipulation for entry of judgment in the above-entitled matter.  However, the stipulation was never filed with the court.  Rather, the stipulation is attached as an exhibit to the declaration of Plaintiff’s counsel in support of the motion for judgment.  Thus, it appears that Defendant has never entered an appearance in this case and the Court does not have jurisdiction over the defendant or the settlement agreement as required by CCP § 664.6.

 

·         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

8

CLJ 516763       CACH, LLC VS. JOSEFINA C. COLINDRES

 

 

CACH, LLC                             GLORIA ZARCO

JOSEFINA C. COLINDRES

 

 

MOTION FOR ENTERING JUDGMENT PURSUANT TO DEFENDANT'S DEFAULT UNDER STIPULATION FOR ENTRY OF JUDGMENT BY CACH, LLC

 

 

·         Plaintiff CACH, LLC’s Motion for Entry of Judgment is DENIED. Defendant has never entered an appearance in this matter. Accordingly, the Court has no jurisdiction over the defendant or the settlement agreement as required by CCP § 664.6.

 

·         Any written settlement agreement outside of court must be signed by the parties to the action.  CCP § 664.6.  This has been interpreted to mean that the settlement must be signed by both the party seeking to enforce the agreement under § 664.6 and the party against whom it is to be enforced.  Harris v. Rudin, Richmond & Appel (1999) 74 Cal.App.4th, 299, 305; Weil & Brown Civil Procedure Before Trial 12:953.

 

·         The term “parties” is used by CCP § 664.6 to mean the litigants themselves, not their attorneys of record or their agents.  Levy v. Superior Court (1995) 10 Cal.App.4th 578, 585.  Weil & Brown Civil Procedure Before Trial 12:956.  While attorneys may act for their clients on other matters, settlement is such a serious matter that it requires the client's knowledge and express consent.  The client’s signature (or oral stipulation before the Court) tends to assure this.  Levy v. Superior Court, supra, 10 Cal.4th at 585; Weil & Brown Civil Procedure Before Trial 12:957.

 

·         According to the moving papers, on October 9, 2012, Defendant entered into a written stipulation for entry of judgment in the above-entitled matter.  However, the stipulation was never filed with the court.  Rather, the stipulation is attached as an exhibit to the declaration of Plaintiff’s counsel in support of the motion for judgment.  Thus, it appears that Defendant has never entered an appearance in this case and the Court does not have jurisdiction over the defendant or the settlement agreement as required by CCP § 664.6.

 

·         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

9

CLJ 523463       UNIFUND CCR, LLC VS. EINAT AMIR

 

 

UNIFUND CCR, LLC                      KENNETH J. MIELE

EINAT AMIR

 

 

MOTION TO TRANSFER CASE TO APPROPRIATE COURT (CHANGE VENUE) BY UNIFUND CCR, LLC

 

 

·         The Motion to Transfer Venue brought by Plaintiff Unifund CCR, LLC is GRANTED pursuant to CCP §§ 396b(a), 397.  The Marin County Superior Court is the proper venue for this action because the named defendant resides in Marin County.

 

·         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 provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court.

 


 

 

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 ROBERT D FOILES

Department 21

 

400 County Center, Redwood City

Courtroom 2J

 

AUGUST 20, 2014

 

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

 you must call (650) 261-5121 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 526302       WILLIAM M. WINDSOR VS. FACEBOOK, INC.

 

 

WILLIAM M. WINDSOR                    PRO/PER

FACEBOOK, INC.                        JULIE E. SCHWARTZ

 

 

MOTION FOR AN ORDER ENFORCING PERMANENT INJUNCTION OR PREFILING ORDER BY FACEBOOK, INC.

 

 

·         APPEAR.  

 


 

 

 

 


POSTED:  3:00 PM

 

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