September 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, September 20, 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

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16-CIV-02957     246 ATHERTON AVENUE LLC vs. TRAIS FLUORS LLC, et al.

 

 

246 ATHERTON AVENUE LLC                H. MICHAEL CLYDE

TRAIS FLOURS LLC                       LAWRENCE E. BUTLER

 

 

1. TRAIS FLUORS LLC’S MOTION TO COMPEL MOHAMMAD MORTAZAVI TO SERVE FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE AND FOR SANCTIONS

TENTATIVE RULING:

 

This matter is dropped from calendar at the request of the moving party.

 

 

2. TRAIS FLUORS LLC’S MOTION TO COMPEL JAWAD KAMEL TO SERVE FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE AND FOR SANCTIONS

TENTATIVE RULING:

 

This matter is dropped from calendar at the request of the moving party.

 

 

 

3. TRAIS FLUORS LLC’S MOTION TO COMPEL RENEWED MOTION TO COMPEL 246 ATHERTON AVENUE LLC TO SERVE FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE AND FOR SANCTIONS AGAINST PERKINS COIE

TENTATIVE RULING:

 

This matter is dropped from calendar at the request of the moving party.

 

 

 

4. JAWAD KAMEL’S MOTION TO STAY ENFORCEMENT OF JUDGMENT PENDING APPEAL PURSUANT TO C.C.P SECTION 918

TENTATIVE RULING:

 

Defendant / Cross-Defendant JAWAD KAMEL’s Motion to Stay Enforcement of Judgment is GRANTED pursuant to Code Civ. Proc. § 918.  The stay shall remain in place until ten days past the period during which he is permitted to appeal, unless earlier terminated by order of the court.  Defendant is not required to post an undertaking. 

 

 

 

Code Civ. Proc. § 918 provides an interim measure to protect the status quo while a party is still within the time to file an appeal; such a stay is supplemental to a party’s ability to seek a stay pending appeal under Sections 916 and 917.  City of Hollister v. Monterey Ins. Co. (2008) 165 Cal. App. 4th 455, 482.  On August 4, 2017, the Court granted Trais’ motions to strike the interpleader action and to enter judgment in Trais’ favor, but acknowledged that “[t]he dispute over who controls Trais Fluors is a dispute to be resolved in some other proceeding.”  (See Reporter’s Transcript of August 4, 2017 hearing, Decl. Callaway Exhibit A, at p. 37:22-24.)  Defendant / Cross-Defendant JAWAD KAMEL states that he intends to appeal this decision, and asks the Court to maintain the status quo regarding the funds that are already safely deposited with the Court as part of the interpleader action.

 

 

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, moving 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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17-CIV-00642     MARK WUOTILA vs. VERONICA GENDRO PERTIWI, et al.

 

 

MARK WUOTILA                           Sean P. Riley

VERONICA GENDRO                        YENNY TENG-LEE

 

 

PLAINTIFF’S MOTION TO COMPEL DEPOSITION AND PRODUCTION OF DOCUMENTS

TENTATIVE RULING:

 

On August 22, 2017, the court agreed to treat Plaintiff’s motion entitled “Motion to Compel Production” as a Motion to Compel Further Responses to Request for Production.  The court continued hearing on that motion to September 20, 2017 so that the court could review the motion and issue a tentative ruling.  That tentative ruling is as follows:

 

Plaintiff’s motion to compel further responses to Request for Production of Documents is DENIED. Although it is questionable whether Defendant’s written responses are sufficient, the motion is deficient.

 

A motion to compel further responses must include a declaration showing that the moving party met and conferred in an effort to resolve all matters informally. (Code of Civ. Proc. Sect. 2031.310, subd. (b)(2).) Plaintiff’s motion fails to comply with this requirement. The moving papers do not include any supporting declaration. The motion consists of a document titled “Verified Statement of Facts and Memorandum of Points and Authorities in Support,” but the document fails to meet the requirements of section 2031.310(b)(2).)

 

The moving papers set forth seven pages of purported facts, followed by a statement that “I declare under the penalty of perjury under the laws of the State of California based upon my knowledge or upon information and belief that the foregoing facts in Section Two ‘Discovery’ above are true and correct.” (Moving P&A at 7:24-26.) A declaration based on information and belief is hearsay and must be disregarded. It is “unavailing for any purpose.” Court rulings must be based on facts, and “not upon the belief of the affiant. ... Such allegations on ‘information and belief’ furnish no proof of the facts stated.” (Thiebaut v. Blue Cross of Indiana (1986) 178 Cal.App.3d 1157, 1161.)

 

Further, when a declaration is on information and belief, “specific facts” supporting such information and belief must also be alleged. (See Grannis v. Board of Medical Examiners (1971) 19 Cal.App.3d 551, 564.) Attorney Riley’s verification is solely on information and belief, with no facts. It carries no value.

 

Even if the Court were to overlook the above, the moving papers fail to show that the parties met and conferred regarding Defendant’s written responses. The moving papers state only that “Mark has met and conferred with Pertiwi and has made a reasonable and good faith attempt at an informal resolution of the issues presented by this motion . . . .” (Moving P&A at 7:9-11.) This is a conclusion not supported by any facts.

 

The communications attached as Exhibit 8 to the motion are unauthenticated. Even so, they address only the scheduling of depositions. Nothing in the emails addresses Defendant’s written responses to the Request for Production of Documents.

 

Failure to meet and confer before filing a motion to compel further responses justifies imposition of sanctions against the moving party. (Code of Civ. Proc. Sect. 2023.010, subd. (i).) The Court declines to impose sanctions because Defendant’s counsel does not set forth sufficient facts for the Court to determine what amount of attorney’s fees should be awarded. (See Declaration of Teng-Lee, para. 27 (no clear indication of how many hours were incurred by attorney or assistant regarding this portion of the four motions. (See Code of Civ. Proc. § 2023.040 (request for sanction must include “facts supporting the amount” of monetary sanction sought).)

 

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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17-UDL-00509     DEUTSCHE BANK NATIONAL TRUST COMPANY vs. WALTER

                    HARRELL, et al.

 

 

DEUTSCHE BANK NATIONAL TRUST COMPANY    PARNAZ PARTO

WALTER HARRELL                         PRO/PER

 

 

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE FOR SUMMARY ADJUDICATION

TENTATIVE RULING:

 

The parties are to APPEAR (in person or by court-call) to inform the court of the status of the proceedings in federal court and to set a date for further status or hearing on the motion.

 

 



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CIV537659     SFPP, LP VS. CITY OF BRISBANE

 

 

L.P. SFPP                              JOHN LYNN SMITH

CITY OF BRISBANE                       JUNE S. AILIN

 

 

7. DENFENDANT’S MOTION FOR ORDER COMPELLING THE DEPOSITION OF NANCY VAN BURGEL, PRODUCTION OF DOCUMENTS AT DEPOSITION, AND FOR MONETARY SANCTIONS

TENTATIVE RULING:

 

The Motion of Defendant City of Brisbane (“City”) to Compel the Deposition of Nancy Van Burgel and for Sanctions, is DENIED. 

The City seeks to take the deposition of opposing counsel Nancy Van Burgel (“Ms. Van Burgel”), who is in-house counsel for Plaintiff SFPP, L.P. (“Plaintiff”).  In order to take Ms. Van Burgel’s deposition, the City must establish: (1) no other means exist to obtain the information than to depose opposing counsel; (2) the information sought is relevant and not privileged; and (3) the information is crucial to the preparation of the case. (Spectra-Physics, Inc. v. Superior Court (1988) 198 Cal.App.3d 1487, 1496.) 

(1) No other means exist to obtain the information?  Here, the City has not established no other means exist to obtain the information, and that the information is crucial to the preparation of the case.  First, the City does not identify any statements in Ms. Van Burgel’s letter that it claims are untrue or are disputed by the City’s representatives that were present at the meeting.  Second, the City wants to inquire from Ms. Van Burgel concerns and issues with the tax that were not raised in Plaintiff’s correspondence to the City (see Ailin Decl. para. 19), but the City has not established that it cannot obtain this information from the City’s own representatives. 

Additionally, the City’s evidence is insufficient to establish that information regarding the related City of Rialto case cannot be obtained by other means, and that this information is crucial to preparation of this action.  (See Ailin Decl., para. 20.)

(2) The information sought is relevant and not privileged?

If the City established there is a genuine dispute, the information sought from Van Burgel regarding these meetings, would be relevant.  For instance, if the City contends that it never requested $1 million dollars from Plaintiff as Van Burgel claimed, then this information would be relevant to show that the tax is not arbitrary.  Further, such conversations would not be protected by attorney-client or work product as the meetings occurred between P’s counsel and the City’s representatives.  Thus, there is no confidentiality regarding what was discussed at these meetings.  Furthermore, Plaintiff could still object to specific questions at the deposition if the questions sought information protected by attorney-client or work product privileges. 

 

As to the information sought regarding disclosure of information in the Rialto cases, this information could be relevant, but it seems that the City acknowledges that the information sought is privileged.  The City only seems to be arguing that Plaintiff may have waived any privilege by communicating with other parties and counsel in the Rialto cases.

 

(3) The information is crucial to the preparation of the case? 

Finally, if the City establishes there is a genuine dispute between the City and Plaintiff as to what was said in these meetings, then Van Burgel’s testimony regarding what was discussed at these meetings is crucial if it is contrary to what the City’s representatives contend was said.  If the City first demanded $1 million dollars from Plaintiff or acknowledged that this tax was intended to make up for the City’s budget shortfall, then this could support that the tax imposed was arbitrary.  However, the City has not identified any disputed issue regarding what was said at these meetings such that Van Burgel’s testimony is crucial.

 

As to the information sought regarding the Rialto actions though, this information is not crucial for this case.  The City only seeks this information in the hopes of finding that Van Burgel waived any privileges in communicating with other companies suing the City of Rialto.  Thus, this purpose is more of a fishing expedition rather than a need to prepare for this action. 

 

Conclusion:  The City has not established all of the elements necessary to support permitting opposing counsel’s deposition to be taken.  The City has not presented the deposition transcript of the City’s representatives to show what the dispute is, nor has it identified any genuine dispute between the parties regarding what was said at these meetings.  The City simply has not presented enough to establish all the elements of the Spectra-Physics test to support taking Van Burgel’s deposition.

 

The Motion to Compel Production of Documents is DROPPED as moot. Plaintiff indicates these same document requests are the subject of Requests for Production, and any issues will be resolved in connection with the Requests for Production.

 

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.

 

 

 

8. DEFENDANT’S MOTION FOR PROTECTIVE ORDER TO QUASH DEPOSITION NOTICE OF NANCY VAN BURGEL

TENTATIVE RULING:

 

The Motion of Plaintiff SFPP, L.P. (“Plaintiff”) for Protective Order and Order to Quash Deposition Notice of Nancy Van Burgel, is GRANTED. 

 

The City seeks to take the deposition of opposing counsel Nancy Van Burgel (“Ms. Van Burgel”), who is in-house counsel for Plaintiff SFPP, L.P. (“Plaintiff”).  In order to take Ms. Van Burgel’s deposition, the City must establish: (1) no other means exist to obtain the information than to depose opposing counsel; (2) the information sought is relevant and not privileged; and (3) the information is crucial to the preparation of the case. (Spectra-Physics, Inc. v. Superior Court (1988) 198 Cal.App.3d 1487, 1496.) 

Here, the City has not established no other means exist to obtain the information, and that the information is crucial to the preparation of the case.  First, the City does not identify any statements in Ms. Van Burgel’s letter that it claims are untrue or are disputed by the City’s representatives that were present at the meeting.  Second, the City wants to inquire from Ms. Van Burgel concerns and issues with the tax that were not raised in Plaintiff’s correspondence to the City (see Ailin Decl. para. 19), but the City has not established that it cannot obtain this information from the City’s own representatives. 

Additionally, the City’s evidence is insufficient to establish that information regarding the related City of Rialto case cannot be obtained by other means, and that this information is crucial to preparation of this action.  (See Ailin Decl., para. 20.)  

The Amended Notice of Deposition served on Ms. Van Burgel is hereby QUASHED. 

 

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.

 


 

 

 

 

 


POSTED:  3:00 PM

 

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