December 21, 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

 

DECEMBER 17, 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 508888       CINDY K. HUNG, ET AL. VS. TRIBAL TECHNOLOGIES, ET AL.

 

 

CINDY K. HUNG                         LYNDA HUNG

TRIBAL TECHNOLOGIES                   KASEY C. TOWNSEND

 

 

MOTION TO COMPEL PLAINTIFF ROBERT CHING LIANG HUNG TO PROVIDE FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET TWO; REQUEST FOR PRODUCTION OF DOCUMENTS, SET THREE AND FOR SANCTIONS BY VICTORIA DINOVICH  AND JOSEPH PETER VIERRA

 

 

·         The Motion to Compel Further Responses is granted as to Defendant Victoria Dinovich’s Document Demand (Set two), Categories 19 through 33, and Defendant Joseph Peter Vierra’s Document Demand (Set Three), Categories 31 through 44.  Plaintiff’s responses that (1) documents are in storage and that (2) Plaintiff will not respond until he returns to Canada from Taiwan are deficient for failure to comply with the requirements of Code of Civil Procedure §§ 2031.210, 2031.220 and 2031.230.

 

·         Plaintiff Robert Ching Liang Hung shall respond further to all categories in a manner compliant with §§ 2031.210 through 2031.230.  Plaintiff shall serve verified supplemental responses no later than January 9, 2015.

 

·         Defendants’ Motion for Sanctions is granted in the amount of $800.00 in total.  Plaintiff shall pay a sanction of $400.00 each to Defendant Victoria Dinovich and Joseph Peter Vierra no later than January 9, 2015. 

 

·         If the tentative ruling is uncontested, it shall become the order of the Court.  Thereafter, counsel for Defendants shall 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 written notice of the ruling to all parties who have appeared in the action as required by law and the California Rules of Court. 

 

 

MOTION FOR AN ORDER TO DEEM VICTORIA DINOVICH'S REQUEST FOR ADMISSIONS, SET ONE TO LI CHING CHU ADMITTED BY VICTORIA DINOVICH

 

 

·         The Motion to Deem Matters Admitted is denied, expressly conditioned on Plaintiff’s serving verified responses as set forth below.

 

·         Plaintiff contends that responses were served on September 17, 2014. In an October 8, 2014 e-mail Plaintiff offered to re-send the responses as a way to resolve this dispute.  The record does not reflect Defendant’s response to the e-mail.  However, because the responses are not verified (Declaration of Lynda Hung, Exhibit A), they do not constitute responses.  (See Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636 (“unsworn responses are tantamount to no responses at all”).

 

·         Plaintiff Li Ching Chu shall serve verified further responses no later than December 29, 2014 or other date agreed upon by the parties in writing.  If Plaintiff fails to serve responses in compliance with this order, then Defendant may apply ex parte and the Court will enter an order granting the present Motion to Deem Matters Admitted and granting Defendant’s Motion for Sanctions in the amount of $1,000.00 against Plaintiff Li Ching Chu.  Defendant’s ex parte application shall comply with the notice requirements of CRC Rule 3.1203.

 

·         If the tentative ruling is uncontested, it shall become the order of the Court.  Thereafter, counsel for Defendant shall 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 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

2

CIV 524828       RALPH DAYAN, ET AL. VS. LINDA MARIE LEMBI, ET AL.

 

 

RALPH DAYAN                           EDWARD C. SINGER

LINDA MARIE LEMBI                     COBLENTZ, PATCH, DUFFY & BASS

 

 

MOTION FOR SUMMARY JUDGMENT AS TO COMPLAINT of DAYAN BY LINDA MARIE LEMBI AND LINDA MARIE LEMBI AS TRUSTEE OF THE LINDA LEMBI REVOCABLE TRUST U/A/D APRIL 14, 2009

 

 

·         Defendants LINDA MARIE LEMBI and LINDA MARIE LEMBI as Trustee of the LINDA LEMBI REVOCABLE TRUST’s Motion for Summary Judgment is GRANTED.

 

·         Plaintiffs allege a sole cause of action for fraudulent conveyance.  As to Plaintiffs RALPH DAYAN and RALPH DAYAN as Trustee of the AMENDED AND RESTATED DAYAN FAMILY REVOCABLE TRUST, it is undisputed that their claim is barred by a General Release of All Claims and Covenant Not to Sue, executed by DAYAN on May 16, 2011.  (UMF Nos. 13-21.)

 

·         As to Plaintiff RMSV EQUITIES, INC., its fraudulent conveyance claim is barred by the four-year statute of limitations set forth in Civil Code § 3439.09.  It is undisputed that the deed transferring Walter Lembi’s interest in the Lembi family home to Linda Lembi personally was recorded on October 22, 2009.  (UMF No. 7.)  This action was filed on October 21, 2013.  (UMF No. 39.)  However, at the time of filing, RMSV’s “powers, rights, and privileges” were suspended (UMF No. 37) and in fact remained suspended until December 3, 2014.  (See Supplemental Declaration of Mark J. Romeo, ¶ 2.) 

 

·         “A corporation which has been suspended pursuant to section 23301 is without capacity to prosecute a civil action while suspended.”  V&P Trading Co., Inc. v. United Charter, LLC (2012) 212 Cal.App.4th 126, 132.  The statute of limitations on RMSV’s fraudulent conveyance claim continued to run during its suspension.  “While procedural acts in the prosecution…of a lawsuit may be validated retroactively by the corporate revival, the statute of limitations is not a procedural right but is a substantive defense.”  Id. at 132.  “Thus, a corporation’s filing of a complaint at a time when the corporation’s powers, rights, and privileges have been suspended does not operate to toll the running of the statute of limitations.”  Id.; see also Center for Self-Improvement and Community Development v. Lennar Corp. (2009) 173 Cal.App.4th 1543, 1443 (“If the statute runs prior to revival, the action is time barred.”).  Accordingly, Defendants’ Motion for Summary Judgment is GRANTED in its entirety.

 

·         Defendants’ evidentiary objections are SUSTAINED as to Objection Nos. 3, 4, 5 and 6 and OVERRULED as to the remainder.

 

·         Moving parties are 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

3

CIV 525185       TANIA CANNEL VS. GARY ANDERSON, ET AL.

 

 

TANIA CANNEL                          ANDREW M. OLDHAM

GARY ANDERSON                         STANLEY E. POND

 

 

DEMURRER TO FIRst Amended COMPLAINT of CANNEL BY GARY ANDERSON AND KMA PROPERTIES

 

 

·         This matter is moot.  This case was dismissed on December 11, 2014.

 

_____________________________________________________________________

9:00

4

CIV 525991       KHALFANI JAMA VS. OFFICE DEPOT, INC., ET AL.

 

 

KHALFANI JAMA                         JOONG Y. IM

OFFICE DEPOT, INC.                    MICHAEL E. BREWER

 

 

MOTION TO BE RELIEVED AS COUNSEL FOR KHALFANI JAMA BY TANYA GOMERMAN

 

 

·         Counsel Tanya Gomerman’s unopposed Motion to be Relieved as Counsel for Plaintiff Khalfani Jama is GRANTED pursuant to Code of Civil Procedure §284(2).  The Court will sign the proposed order [MC-053] submitted by Counsel absent a properly noticed appearance to contest the tentative ruling.

 

·         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

5

CIV 528655       JOHN K. BLAKE, JR., ET AL. VS. NELSON TRIM CO., ET

                   AL.

 

 

JOHN K. BLAKE, JR.                    PRO/PER

NELSON TRIM CO.

 

 

MOTION FOR SUMMARY JUDGMENT AS TO COMPLAINT of BLAKE BY NAVIGATORS INSURANCE COMPANY

 

 

·         This matter is moot.  This action was dismissed as to the moving party on October 16, 2014.

 

_____________________________________________________________________
9:00

6

CIV 530969       JOSEPHINE SALVADOR LEBRON VS. CENTRAL MORTGAGE

                   COMPANY

 

 

JOSEPHINE SALVADOR LEBRON             DAVID L. SMART

CENTRAL MORTGAGE COMPANY              CHARLES W. NUNLEY

 

 

DEMURRER TO COMPLAINT of LEBRON BY CENTRAL MORTGAGE COMPANY

 

 

·         This matter has been continued to January 20, 2015 at 9:00 a.m. in the Law and Motion department.

 

_____________________________________________________________________
9:00

7

CLJ 210327       NATHAN SCHMIDT, ET AL. VS. TIM ZIELINSKI, ET AL.

 

 

NATHAN SCHMIDT                        MARC D. BENDER

TIM ZIELINSKI                         MARY CATHERINE WIEDERHOLD

 

 

DEMURRER TO COMPLAINT (UNLAWFUL DETAINER) of SCHMIDT BY TIM ZIELINSKI AND THE ICE GROUP

 

 

·         The Demurrer is overruled.  The terms of the addendum are in the nature of requests rather than affirmative statements.  As Plaintiffs contend, they do not clearly indicate the lease was renewed nor that written permission to sublease the premises was granted.  With respect to service of the 30-day notice, ¶ 34 of the lease gives the lessee an option to renew the lease by giving the lessor written notice.  It does not concern notices, generally, nor does it require personal delivery as Defendant contends.  Defendants’ reliance on Culver Center Partners is also misplaced as the lease in that case provided that all notices required under the lease would be deemed delivered when deposited in the mail, transmitted by electronic means or delivered in person to a specified address.  Defendants cite no similar provision in the lease at issue here.

 

·         Moving parties are 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

CLJ 528969       RESURGENCE CAPITAL, LLC VS. DAWN MARIE SEVY

 

 

RESURGENCE CAPITAL, LLC               NANCY Q. SU

DAWN MARIE SEVY                       PRO/PER

 

 

MOTION FOR ORDER COMPELLING RESPONSES TO FORM INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS; AND FOR AN ORDER THAT THE GENUINENESS OF DOCUMENTS AND TRUTH OF MATTERS SPECIFIED IN PLAINTIFF'S REQUEST FOR ADMISSIONS BE DEEMED ADMITTED AND REQUEST FOR SANCTIONS BY RESURGENCE CAPITAL, LLC

 

 

·         Plaintiff's Motion for Order Compelling Responses to Form Interrogatories and Request for Production of Documents and for an Order that the Genuineness of Documents and Truth of Matters Specified in Plaintiff's Request for Admissions Be Deemed Admitted and Request for Sanctions is granted.  Defendant is to provide complete, verified responses, without objections, to the form interrogatories and Request for Production of Documents within fifteen (15) days.  The genuineness of documents and truth of matters specified in Plaintiff's Request for Admissions are deemed admitted.  Plaintiff is awarded sanctions in the amount of $290.00.

 

·         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.  The order is to be submitted directly to Judge Elizabeth K. Lee, Department 17.

 

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POSTED:  3:00 PM

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