November 27, 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

 

NOVEMBER 26, 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 512187       CONNIE MINNITI VS. BANK OF AMERICA, N.A., ET AL.

 

 

CONNIE MINNITI                        MARC D. BENDER

BANK OF AMERICA, N.A.                 JASON M. RICHARDSON

 

 

MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION OF ISSUES BY

BANK OF AMERICA, N.A. AND RECONTRUST COMPANY, N.A. AGAINST CONNIE

MINNITI

 

 

·         Defendant Bank of America, N.A. and Recontrust N.A.’s unopposed Motion for Summary Judgment is GRANTED.  Defendants have met their initial burden pursuant to CCP § 437c(p)(2) by showing that the cause of action for wrongful foreclosure asserted by Plaintiff has no merit or that the Defendants have a complete defense to that cause of action. 

 

·         The burden shifted to Plaintiff under CCP § 437c(p)(2) to show that a triable issue of one or more material facts exists as to the cause of action for wrongful foreclosure. The Plaintiff may not rely upon the mere allegations of her pleading to show that a triable issue of material fact exists but instead must set forth the specific facts showing that a triable issue of material fact exists as to that cause of action.  Plaintiff has not met that burden, indeed Plaintiff has not filed any opposition to the Motion.  The effect of a party’s failure to oppose a Motion is to deem the moving papers meritorious and to grant the Motion. Sexton v. Superior Court, 58 Cal. App. 4th 1403 (1997).

 

·         Judgment is awarded to Defendants.

 

·         Defendants’ request for judicial notice is GRANTED.

 

·         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 to 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 514158       DIANE HOLBROOK, ET AL. VS. LOUIS CIAPPONI, ET AL.

 

 

DIANE HOLBROOK                        MARK HOOSHMAND

LOUIS CIAPPONI                        JANE L. TRIGERO

 

 

MOTION TO QUASH THE DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE AND PRODUCTION OF DOCUMENTS OF SHANTHANA GANESH AND SANCTIONS BY LOUIS CIAPPONI, ANTOINETTE A CIAPPONI, as Trustees of the Ciapponi Revocable Trust, dated October 27, 1982, ANTHONY C. LERTORA and JANET LERTORA, as Trustees of the Lertora Family Trust, dated August 10, 1984; ELIZABETII B. PINELLI, as Trustee of the Pinelli Survivor' s Trust, dated April 26, 1994, and ANTHONY C LERTORA, as Trustee of the James D Lee-Lertora Trust, Dated December 15, 1993

 

 

·         This matter is moot.  According to the Declaration of Tyson Redenbarger, Ms. Ganesh appeared for her deposition on October 30, 2014 and Mr. Cassata was present. 

 

·         The Court declines to award Sanctions.

_____________________________________________________________________


9:00

3

CIV 519076       ROBERT MCNAMARA, ET AL. VS. EMBASSY SUITES                            

                   MANAGEMENT, LLC, ET AL.

 

 

ROBERT MCNAMARA                       RICHARD H. SCHOENBERGER

EMBASSY SUITES MANAGEMENT, LLC        JOSEPH A. AGUILAR

 

 

MOTION FOR LEAVE TO FILE FIRST AMENDED ANSWER TO PLAINTIFFS' COMPLAINT BY CITY MECHANICAL INC.

 

 

MOTION FOR LEAVE TO FILE FIRST AMENDED ANSWER TO CROSS COMPLAINT OF EMBASSY SUITES MANAGEMENT, LLC, FELCOR/CSS HOLDINGS, L.P. AND DJONT OPERATIONS, LLC BY CITY MECHANICAL INC.

 

·         The Motion for leave to file Amended Answer to Plaintiff Complaint and Defendant Embassy Suite’s Cross Complaint is denied. Neither the Complaint nor the Cross-Complaint alleges a contract cause of action. The issue of contract that Plaintiffs and Embassy Suites asserted in their respective oppositions to City Mechanical’s Summary Judgment Motion was for the purpose of raising a triable issue of fact about whether a duty of care existed. Nothing in any pleadings seek any affirmative relief based on a breach of contract. For that reason, none of the proposed new affirmative defenses apply to the Complaint or Cross-Complaint.

 

·         If the tentative ruling is uncontested, it shall become the Order of the Court. Thereafter, counsel for moving party City Mechanical 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

4

CIV 525673       JOSE GARCIA VS. GARY KASSINOV, ET AL.

 

 

JOSE GARCIA                           CARY KLETTER

GARY KASSINOV                         PRO/PER

 

 

MOTION FOR AN ORDER STRIKING DEFDENDANTS’ ANSWER AND ENTERING DEFAULT; REQUEST FOR MONETARY SANCTIONS BY JOSE GARCIA

 

 

·         Plaintiff Jose Garcia’s unopposed Motion to Strike Defendants’ answer and Enter Default Judgment was continued from October 31, 2014 pursuant to CLD Const., Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141.  Although a corporation cannot act in propria persona, and must be represented by an attorney in a Court proceeding, the Defendant corporation must also be given a reasonable amount of time to obtain counsel. 

 

·         Defendant Gary’s Guaranteed Rooster, Inc. was directed to retain counsel and the case was continued to November 26, 2014 for that purpose. The Court’s Order stated that if Defendant corporation had not retained a licensed attorney by the next court date, the Court would grant the Plaintiff’s Motion to strike Defendants’ Answer and enter default judgment against corporate Defendant Gary’s Guaranteed Rooter, Inc. 

 

·         There is nothing in the Court’s records showing that an attorney has been retained for Defendant Gary’s Guaranteed Rooster. 

 

·         Plaintiff’s Motion to Strike Defendants’ Answer and enter default judgment against corporate Defendant Gary’s Guaranteed Rooter, Inc. is GRANTED.

 

·         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 526872       BRIAN HUCKINS VS. ROBERT J. BREUNING, ET AL.

 

 

BRIAN HUCKINS                         DAVID M. HELBRAUN

ROBERT J. BREUNING                    WILLIAM A. MUNOZ

 

 

MOTION TO COMPEL RESPONSES TO SPECIAL INTERROGATORIES SET ONE AND FOR SANCTIONS BY BRIAN HUCKINS

 

 

·         Plaintiff’s unopposed Motion to Compel Responses to Special Interrogatories Set One is granted.  Defendant shall provide verified responses to the interrogatories within 10 days. 

 

·         Plaintiff’s unopposed request for sanctions is also granted.  Defendant shall pay Plaintiff $460 within 10 days. 

 

·         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 to 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 529036       NATERA, INC. VS. PROGENITY, INC.

 

 

NATERA, INC.                          GARET O'KEEFE

PROGENITY, INC.                       ETHAN D. DETTMER

 

 

MOTION FOR JUDGMENT ON THE PLEADINGS AS TO THE FIFTH CAUSE OF ACTION OF PROGENITY, INC.'S FIRST AMENDED CROSS-COMPLAINT BY NATERA, INC.

 

 

·         Plaintiff / Cross-Defendant NATERA, INC.’s Motion for Judgment on the Pleadings is DENIED.  Defendant / Cross-Complainant PROGENITY, INC.’s Fifth Cause of Action for misappropriation of trade secrets is sufficiently pled pursuant to Civil Code § 3426.1. 

 

·         Here, the First Amended Cross Complaint (FACC) describes at length the measures Progenity took to create and safeguard the confidentiality of its customer lists.  (FACC ¶¶ 30-40.)  Progenity alleges it expends a tremendous amount of resources in Order to create customer relationships, and that its employees are strictly bound by confidentiality agreements with respect to the customer lists.  Progenity made a reasonable effort to protect the confidentiality of the customer lists when dealing with Natera, both in the TSA itself and in the emails sent to Natera containing customer information.  The FACC sufficiently alleges that the customer lists were a trade secret.

 

·         The FACC further sufficiently alleges a misappropriation of that trade secret.  While Natera argues at length that it is entitled, by Section 2.1 of the TSA, to sell its product to any “Customer” and that the non-solicitation clause in Amendment Number One cannot be read to restrain trade, the FACC is not alleging that Natera is restrained from selling its product to customers.  What it is alleging is that Natera improperly used the highly valued, curated customer lists in Order to bypass Progenity and sell to Progenity’s clients directly. 

 

·         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 to 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.

 

MOTION TO COMPEL DISCOVERY RESPONSES FROM NATERA, INC. FOR DEEMED ADMISSIONS, AND FOR SANCTIONS; OR, IN THE ALTERNATIVE, TO COMPEL FURTHER DISCOVERY RESPONSES AND FOR SANCTIONS BY PROGENITY, INC.

 

 

·         Defendant / Cross-Complainant PROGENITY, INC.’s Motion to Compel is GRANTED in part and DENIED in part. 

 

·         Plaintiff / Cross-Defendant NATERA, INC. is Ordered to produce all non-privileged documents responsive to Request for Production of Documents (Set One), Request Nos. 1-10; 12-14; 16-24; 26; 29-30 no later than December 19, 2014. 

 

·         NATERA is further Ordered to produce all non-privileged documents responsive to Special Interrogatories (Set One), Nos. 1-9 and 15-17, to which it responded it would produce documents in lieu of compiling information pursuant to Code Civil Procedure § 2030.230, no later than December 19, 2014.

 

·         The Motion is DENIED as to Request for Admissions (Set One), as NATERA has provided responses that comply with Code Civil Procedure § 2033.220(b).

 

·         PROGENITY’s request for Monetary Sanctions is GRANTED in the amount of $5,610.00. 

 

·         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 to 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

7

CIV 530289       NATHANIEL BASOLA SOBAYO VS. MARIA SOSA, ET AL.

 

 

NATHANIEL BASOLA SOBAYO               PRO/PER

MARIA SOSA                            PRO/PER

 

 

DEMURRER TO COMPLAINT OF SOBAYO BY MARIA SOSA

 

 

·         Defendants’ Demurrer is STAYED pending the outcome of Plaintiff’s Appeal on the Court’s October 24, 2014 Order extending time to serve and file a responsive pleading. CCP § 916(a); Varian Med. Sys., Inc. v. Delfino (2005) 35 Cal. 4th 180, 189.

 

·         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 to 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

CIV 530374       VULCAN WARBIRDS INC. VS. THE COLLINGS FOUNDATION, ET                     

                   AL.

 

 

VULCAN WARBIRDS INC.                  PHILIP L. GREGORY

THE COLLINGS FOUNDATION

 

 

DEMURRER TO COMPLAINT OF VULCAN WARBIRDS INC. BY AUCTIONS AMERICA BY RM, INC. AND RM AUCTIONS, INC.

 

 

·         Defendants RM Auctions, Inc. and Auctions America by RM, Inc.'s Demurrer is sustained in part and overruled in part.

 

·         The Demurrer to the 1st Cause of Action for Breach of Contract is sustained with leave to amend.

 

·         In its Complaint, Plaintiff alleges moving Defendants were parties to the agreement, citing to the paragraphs where “Defendants” are listed as a group and as parties to the Tank Purchase Agreement (¶¶ 4, 6, 66, 67). 

 

·         Plaintiff further alleges that it accepted the offer made by "Defendants" to purchase the tank; thus alleging it entered into an agreement with all Defendants, including RM and Auction America. 

 

·         It also appears from the specific allegations in the Complaint that the moving Defendants were acting only as the agent for the Collings Foundation, the owner of the tank, when they negotiated with Plaintiff and made the offer to sell the tank (¶¶ 27, 39, 40, 43, 49, 58, 59, and 44, Exhibit 5 to the Complaint). 

 

·         Here there are contradictory allegations as to the role that the auction Defendants played when they negotiated the purchase agreement either on behalf of or with the Collings Foundation.  Plaintiff is given leave to amend to make specific allegations regarding the moving Defendants' specific role/liability. 

 

·         Defendants' Demurrer to the 2nd Cause of Action for Replevin and 3rd Cause of Action for Claim and Delivery is sustained with leave to amend so that Plaintiff can allege facts showing that moving Defendants had possession of or the power to deliver the tank.

 

·         Defendants' Demurrer to the 4th Cause of Action for declaratory relief and specific performance is sustained with leave to amend.  It appears from the specific allegations that the moving Defendants were only acting as the agent for the Collings Foundation, the owner of the tank, when they negotiated with Plaintiff and maybe offer to sell the tank.  If Plaintiff can amend the cause of action for breach of contract, then this cause of action would survive as well.

 

·         Defendants’ Demurrer to the 5th Cause of Action for violation of Commercial Code §2403(2) is sustained with leave to amend.  It is unclear to the Court whether a cause of action can be stated for violation of §2403.

 

·         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 to 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

9

CLJ 510001       PERSOLVE, LLC VS. NICOLE E. BREWER

 

 

PERSOLVE, LLC                         ALAINE PATTI-JELSVIK

NICOLE E. BREWER                      PRO/PER

 

 

MOTION FOR JUDGMENT ON THE PLEADINGS BY PERSOLVE, LLC

 

 

·         Plaintiff PERSOLVE, LLC’s unopposed Motion for Judgment on the Pleadings is GRANTED.  The Complaint alleges facts sufficient to state a claim.  The Answer does not contain facts sufficient to constitute a defense. 

 

·         Defendant has admitted the material allegations of the Complaint.

 

·         Judgment is awarded to the Plaintiff.

 

·         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 to 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

10

CLJ 524290       CACH, LLC VS. ABEL CEDILLO

 

 

CACH, LLC                             GLORIA ZARCO

ABEL CEDILLO

 

 

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

 

 

·         This matter is moot. This matter was dismissed on November 4, 2014.

 

 



 

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

 

NOVEMBER 26, 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 524010       RYAN PIERCE VS. SPENCER MICHAEL TOWNSEND

 

 

RYAN PIERCE                           JOHN KEVIN CROWLEY

SPENCER MICHAEL TOWNSEND              DAVID L. BLINN

 

 

MOTION TO CONTINUE TRIAL BY SPENCER MICHAEL TOWNSEND

 

 

·         Motion to Continue is granted. New Trial date is March 16, 2015 at 9:00 a.m. in Department PJ. Mandatory Settlement Conference is reset to February 24, 2015 at 1:30 p.m. in Department 7. 

 


 

 

 

 

 


POSTED:  3:00 PM

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