May 27, 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, May 24, 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

LineS: 1 & 2

16-CIV-02941     CHERIF MEDAWAR, et al. vs. NYLE MAMEESH, et al.

 

 

CHERIF MEDAWAR                         NIALL P. MCCARTHY

NYLE MAMEESH                           MICHAEL D. LIBERTY

 

 

1. MOTION TO STRIKE PUNITIVE DAMAGES

TENTATIVE RULING:

 

Motions to strike are covered by CCP sec. 436, which states that a Court may strike out any irrelevant, false or improper matter in any pleading. As with a demurrer, the grounds for a motion to strike are extremely limited and must appear from the face of the Complaint or judicially noticeable matters. CCP sec. 437. For purposes of a motion to strike, the allegations of the Complaint are deemed true. Blakemore v. Superior Court (2005) 129 Cal. App. 4th 36, 53.

 

Defendants Ravi Anand and Anand & Associates’ Motion to Strike Portions of the First Amended Complaint is DENIED.

 

The First Amended Complaint contains sufficient allegations to state a claim for punitive damages, as the breach of fiduciary duty, aiding and abetting breach of fiduciary duty and intentional fraud causes of action could be fraudulent or malicious within the meaning of Civil Code sec. 3294, which requires a showing of oppression, fraud, or malice.

 

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.

 

 

2. HEARING ON DEMURRER TO FIRST AMENDED COMPLAINT

TENTATIVE RULING:

 

The Demurrer to First Amended Complaint by Defendant Ravi Anand and Anand & Associates is OVERRULED.

 

On demurrer, the factual allegations in the complaint, together with all reasonable inferences, must be accepted as true. Wolfe v. State Farm Fire & Cas. Ins. Co. (1996) 46 Cal. App. 4th 554, 559-560. A demurrer may be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. Blank v. Kirwan (1985) 39 Cal. 3d 311, 318. All facts are to be construed in the light most favorable to the plaintiff. Purdue v. Crocker Natl. Bank (1985) 38 Cal. 3d 913, 922.

 

As for the 4th cause of action, aiding and abetting, during the meet and confer process, Moving Parties agreed to withdraw their demurrer to this claim.

 

As for the 5th cause of action, negligent misrepresentation, the FAC alleges enough facts to state a claim. The FAC cites to the specific misstatements that Plaintiffs claim were material to Plaintiffs’ decision to enter into the contracts. Plaintiffs allege that they relied on the pro forma budgets for the properties and that the projects would be completed within 12 to 18 months from purchase and within the pro forma budgets. (FAC ¶¶ 2, 22, 23.) Plaintiffs alleged that the quick turn-around of the projects was a key component of the Plaintiffs’ investment strategy. (FAC ¶ 23.)

 

Reasonable reliance is generally a question of fact. “Except in the rare case where the undisputed facts leave no room for a reasonable difference of opinion, the question of whether a Plaintiff’s reliance is reasonable is a question of fact.” Blankenheim v. E. F. Hutton & Co. (1990) 217 Cal. App. 3d 1463, 1475. Plaintiffs alleged that they relied on the statements made in the budget about the price and with regard to how long the projects would take. Whether that reliance was real or “reasonable” are questions for the trier of fact. 

 

As for the 7th cause of action, intentional fraud, the cause of action was properly pled. “Fraudulent intent must often be inferred from underlying circumstances as direct evidence is rarely available. As direct proof of fraudulent intent is often an impossibility, fraud may be established by the circumstances surrounding the transaction.” Wilke v. Coinway, Inc. (1967) 257 Cal. App. 2d 126, 138.

 

The FAC adequately alleges that Defendants fraudulently induced Plaintiffs to enter into the contracts by providing intentionally false estimates that were half or less than half of the actual costs. (FAC ¶ 129.) The FAC alleges that Defendants were aware of the material nature of these misrepresentations. (FAC ¶ 23.) Again, whether the reliance by Plaintiffs was “reasonable” or “justifiable” cannot be decided at the demurrer stage.

 

Defendants argue (without legal support) that one cannot simultaneously plead intentional and negligent fraud, however that is incorrect. Plaintiffs may allege alternative theories of recovery based on both intentional and negligent fraud. County Sanitation Dist. v. Superior Court (1990) 218 Cal. App. 3d 98, 109 (nothing as an example that “negligent or intentional misrepresentation” may be alleged as “alternative theories of recovery).

 

Defendants shall file answers to the complaint within 21 days of this order.

 

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

Line: 3

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 

 

 

MOTION TO COMPEL 246 ATHERTON AVENUE LLC TO SERVE FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE AND AWARD SANCTIONS AGAINST PERKINS COLE

TENTATIVE RULING:

 

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

 

 



9:00

Line: 4

17-CIV-00057     JIM NICKERSON vs. MILLBRAE SCHOOL DISTRICT, et al.

 

 

JIM NICKERSON                          BRYAN D. CORYELL

MILBRAE SCHOOL DISTRICT                PRO/PER

 

 

PETITION FOR RELIEF JIM NICKERSON FOR THE FILING REQUIREMENT OF GOVERNMENT CODE SECTION 945.4          

TENTATIVE RULING:

 

By stipulation of the parties, the Petition for Order Relieving Petitioners from Provisions of Government Code Section 945.4 is CONTINUED to 9:00 a.m. on June 7, 2017 in the Law and Motion Department.

 



9:00

LineS: 5 & 6

17-CIV-00906     ADORIA KANTE, et al. vs. JON EDWARD QUIGLEY, et al.

 

 

ADORIA KANTE                           Pro/PER

JON EDWARD QUIGLEY                     JOHN H. ROLLINS

 

 

5. HEARING ON DEMURRER TO VERIFIED COMPLAINT

TENTATIVE RULING:

 

Defendants Jon Quigley and John Rollins’ Demurrer to the Complaint is SUSTAINED WITH LEAVE TO AMEND. The Complaint fails to allege any facts showing that any Plaintiff has standing to sue. The Complaint fails to allege any facts supporting a recognizable cause of action.

 

The demurrer for lack of jurisdiction has no merit, since the supporting argument addresses only venue (location of property) and not jurisdiction.

 

The demurrer for another action pending is overruled without prejudice to be raised again if an amended complaint is filed with more specificity as to the facts underlying the causes of action.

 

Plaintiffs are granted leave of court until June 9, 2017, to file and serve a First Amended Complaint.  

 

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 Richard H. DuBois, Department 16. 

 

 

6. MOTION TO STRIKE VERIFIED COMPLAINT, ETC.

TENTATIVE RULING:

 

Demurrer having been sustained, the motion to strike is moot.

 

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.

 



9:01

Line: 7

17-UDL-00418     MANANA KOZLOVA vs. RENE A. GAINES, et al.

 

 

MANANA KOZLOVA                         MARC D. BENDER

RENE A. GAINES                         ALEX LEMIEUX

 

 

MOTION TO QUASH

TENTATIVE RULING:

 

The motion to quash is DENIED.

 

The requirements that a 3-Day Notice to Quit must set forth the amount of unpaid rent and the specific manner in which the rent can be paid in order to cure default does not apply to the alleged lease violations set forth in the Notice to Quit. The motion fails to demonstrate that the 3-Day Notice was deficient in any manner.

 

The requirement of stating an amount due applies only to situations in which the tenant is delinquent on rent. (Code of Civ. Proc. § 1161(2) & 1161.1) Here, the alleged lease violations did not include nonpayment of rent. The alleged violations were for allowing a subtenant, allowing alterations to property, and nonpayment of utilities. No statute requires any more specific notice than what Plaintiff gave.

 

Defendant’s motion argues only that the 3-Day Notice fails to state the amount of unpaid utilities. Since this is not a claim for unpaid rent, the Notice is not required to state the amount that must be paid.

 

Defendant shall file an answer to the complaint within 5 days of this order.

 

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.

 



9:01

Line: 8

CLJ531806     FEDEX TECHCONNECT, INC. VS RUGSTAN, INC, ET AL.

 

 

FEDEX TECHCONNECT, INC.            JOHN D. GUERRINI

RUGSTAN, INC.                     VINCENT J. DEMARTINI

 

 

MOTION TO STRIKE

TENTATIVE RULING:

 

Plaintiff’s motion to strike Defendant’s answer and enter judgment in favor of plaintiff and against defendant is GRANTED. 

 

Defendant corporation has been given several chances to obtain counsel.  It obtained counsel who specially appeared on May 3, 2017 to request one additional continuance but said counsel did not make a subsequent general appearance.  Therefore, Defendant’s answer is stricken and Plaintiff is entitled to judgment as prayed.

 

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, plaintiff 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 and a proposed Judgment is to be submitted directly to Judge Richard H. DuBois, Department 16.

 

 


 

 

 

 

 


POSTED:  3:00 PM

 

© 2017 Superior Court of San Mateo County