July 26, 2016
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 GERALD J. BUCHWALD

Department 10

 

400 County Center, Redwood City

Courtroom 8D

 

Wednesday, July 20, 2016

 

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.  

 

 

    Case                  Title / Nature of Case

 

9:00

 

LINE 1

CIV 534857

SIMONE STANZER VS. MENLO MEDICAL CLINIC, INC.,

   ET AL.

 

SIMONE STANZER

JORDAN S. STANZLER

MENLO MEDICA CLINIC, INC.

BARRY C. MARSH

 

 

MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION OF ISSUES BY MENLO MEDICA CLINIC, INC, ET AL.

TENTATIVE RULING:

 

  • DENIED. Defendants MENLO MEDICAL CLINIC and ROBERTA L. WONG, M.D.’s Motion for Summary Judgment is DENIED. The Court finds that there are triable issues of material fact on which Plaintiff is entitled to proceed to trial of her case. Calif. Code Civ. Proc. Section 437c(g).

 

  • This is a medical malpractice claim arising out of alleged mistreatment of Plaintiff’s injury to her wrist in a fall at her home. The basic gist of the claim is that, based on an allegedly negligent misreading of x-rays, Plaintiff was initially told that she had a wrist sprain when she actually had a fractured wrist. As a result, the treatment that she should have had by application of a cast to the wrist was not done, her bones further separated, and by the time the fracture was properly noted on the x-rays and Plaintiff advised of the fracture her ligaments tore and she had to have corrective surgery.

 

  • The Court is of the opinion that this is one of those rare medical negligence cases in which liability can potentially be established without expert testimony as to the standard of care because the exacerbation of injury between the initial mis-diagnosis and later corrective surgery is an injury that arguably would not occur in the absence of negligence.

 

  • Here, the law & motion papers before me show a sharp factual dispute as whether or not Ms. Stanzler’s fracture was visible on the first set of x-rays. If it was, a jury can potentially reasonably infer that the Defendant radiologist Dr. Roberta Wong simply missed it, and was negligent in doing so. In this regard, Dr. Chen states in his declaration that he was able to observe a non-displaced distal radius fracture on the August 13, 2014 x-rays. As an Orthopedic Surgeon, Dr. Chen is qualified to read x-rays and his interpretation of the August 13th x-rays raises a triable issue here.

 

  • See Mann v. Cracchiolo (1985)38 Cal.3d 18, at 36-37, reversing summary judgment on the basis of a surgeon’s declaration that a neck fracture was visible on x-rays. These facts were held to be such that if accepted by a jury would permit a finding of negligence entirely apart from any of the surgeon’s statements on the standard of care.    

 

  • Plaintiff, by her own deposition, has also submitted facts that when Dr. Wexler later read the August 13th x-rays, and this was on September 5, 2014, new X-rays were also taken.  Dr. Lewis Wexler read the original X-rays and the new X-rays, and showed both sets to Plaintiff. Plaintiff recounts that Dr. Wexler pointed out the fracture on the original X-rays taken on August 13, 2014, which was clearly visible to Plaintiff. These additional facts are corroborative of Dr. Chen’s later interpretation of the August 13th x-rays to the same effect.

 

  • Defendant’s Objections that the Court should disregard this part of Plaintiff’s declaration on hearsay grounds is misplaced. A patient is entitled to testify about his or her own medical condition, including within the patient’s direct knowledge as shown on x-rays and by means of the medical diagnosis and advice given by treating doctors. See Calif. Evidence Code, Section 1251; 1 Witkin, California Evidence [4th Edition 2000] Hearsay §§ 195-196, pointing out the high reliability of such evidence given by a patient who consults a doctor for treatment is likely to tell the truth about the condition.    

 

·         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 2

CIV 538307

BOHMAN AGGREGATES LLC VS. STEVE L. GILBERT, ET AL

 

BOHMAN AGGREGATES

DAVID W. TUFTS

STEVE L. GILBERT

 

 

MOTION TO COMPEL RESPONSES TO SUBPOENAS AND REQUEST FOR ORDER AWARDING MONETARY SANCTIONS BY STEVE L. GILBERT, ET AL. 

TENTATIVE RULING:

 

  • OFF-CALENDAR. For lack of effective service of motion papers. Motion papers to be served with indication of “Hearing Date TBA”, and following such service a new Hearing date to be obtained and Notice of Hearing to then be served and filed.

 

  • It appears that this Motion was brought for the purpose of enforcing discovery requests made to obtain evidence here in California that is alleged to be potentially relevant to the subject matter of an action pending in Utah. That action appears to be based on claims arising out of an equipment rental contract for use of heavy equipment in operations in a gravel or stone quarry at a location called Powder Mountain and another location called Bohman Ranch.

 

  • This is the second time that the Moving party has requested a continuance – once purportedly to settle the discovery issue without troubling the Court, and now because the motion papers have never been served.

 

  • Accordingly, the matter is Ordered Off-Calendar without prejudice to restoring it to the Calendar once the motion papers are properly served. Movant’s Counsel’s request for a continuance to a newly calendared date of October 7,2016,  received by the Court on July 19th, is Denied.

 

 

 

 

 

 

 

 

9:00

 

LINE 3

CIV 538366

COUNTY OF SAN MATEO SHERIFF GREG MUNK VS.

    NATHAN TROY SEATON

 

COUNTY OF SAN MATEO SHERIFF GREG MUNKS

DAVID A. SILBERMAN

NATHAN TROY SEATON

 

 

 

MOTION TO SEAL RECORDS BY COUNTY OF SAN MATEO SHERIFF GREG MUNKS

TENTATIVE RULING:

 

·    GRANTED.  Petitioner County of San Mateo Sheriff Greg Munks’ unopposed Motion To Seal Records is Granted. The filed Declarations of Chief Deputy County Counsel David Silberman and accompanying Exhbits A to each of those Declarations, being Officer Pettit’s Report and Officer Sanchez’s Report, shall be maintained under seal, and to the extent not earlier sealed are hereby sealed, until and unless upon further Order of the Court.

 

·    This is one in a series of Motions brought to seal supporting papers filed on Petitions for the Court’s Order that certain confiscated firearms be retained by the Sheriff. The firearms were confiscated from Respondent Nathan Troy Seaton in connection with his Welfare & Institutions Code § 5150 mental health hold.

 

·    Exhibit A to each of Mr. Silberman’s Declarations contain sensitive information, including mental health information related to the placement of respondent on a hold pursuant to Welfare & Institutions Code §5150.  Due to the personal details contained in Exhibit A, an overriding interest exists that overcomes the right of public access to these records.

 

·    Petitioner brings this Motion under Rule 2.551, Calif. Rules of Court. The Petitioner has demonstrated facts that establish that there is not only an overriding interest which supports sealing the record and overcomes the weighty right of public access to the records, but also that there is a substantial probability that the overriding interest will be prejudiced if the record is not sealed, that the proposed sealing is narrowly tailored and that there are no less restrictive means to achieve the overriding interest. See Rule 2.550(d).

 

·    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 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 Gerald J. Buchwald, Department 10.

 

 

 

 

 

 

 

9:00

 

LINE 4

CIV 534062

BRENDA DAVIS VS. FIDELITY NATIONAL FINANCIAL,

   ET AL.

 

 

BRENDA DAVIS

PIETER BOGAARDS

FIDELITY NATIONAL FINANCIAL

KAI-CHING CHA

 

 

Motion for Leave to File Amended Complaint/Answer

TENTATIVE RULING:

 

·    HEARING REQUIRED. Counsel to personally appear. No telephonic appearances. No local “covering” counsel. Counsel to be prepared to address the following issues:

 

·    Regarding the addition of two new causes of action under Bus. & Prof. Code, Section 17200, is Plaintiff’s application for leave to amend opening up an entirely new field of inquiry without any reasonable explanation as to why this major change in the pleading has not been made long ago? See Magpali v. Farmers Group, Inc. (1996) 48 Cal. App.4th 486, 488.

 

·    Plaintiff alleges injury to fair competition by failure to provide the referenced meal & rest breaks, accurate wage statements, and overtime pay. However, to make out such a claim, Plaintiff would have to show how the alleged unfair business practices actually adversely impact business competition in a defined relevant commercial market. Usually that cannot be done without expert testimony, that would require substantial lead time to develop by way of expert disclosure, expert reports and depositions, etc. Even with trial seven months away, that is arguably not enough time. And this case has already been continued once before.

 

·    Also, the addition of the proposed two Section 17200 causes of action seek restitutionary relief. In the reply papers, Plaintiff relies on Nestle v. Santa Monica (1972) 6 Cal.3d 920,939, for the proposition that leave to amend should not be denied where the refusal results in depriving a party’s right to assert a meritorious cause of action [emphasis added].

 

·    Are the Section 17200 claims that Plaintiff seeks to now add into the case likely “meritorious”?  Section 17200 does not provide for recovery of damages; it affords primarily injunctive relief consistent with its purpose as a State antitrust law and its requirement that the claimant be acting as a private attorney general and have the standing to do so by virtue of having injury-in-fact.

 

·    And Section 17200 is designed not to protect individual private party consumers or disgruntled employees or individual business competitors, but to protect the integrity of business competition itself. Accordingly, in recent cases the California Supreme Court has frowned upon the use of restitution under Section 17200 to circumvent that Section’s prohibition on recovery of damages. Are Plaintiff’s proposed Section 17200 claims contrary to those recent decisions?  See, e.g., Cortez v. Purolator (2000) 23 Cal.4th 163, at 172, “[t]he trial court may not make an order for disgorgement of all benefits defendant may have received from ailing to pay overtime wages. It may only order restitution to persons from whom money or property has been unfairly or unlawfully obtained.”         

 

 

 

 

 

 

 

9:00

 

LINE 5

 

CIV 535494

HETTY KAN TULLOSS VS. MILLS-PENISULA HEALTH

   SERVICES

 

 

HETTY KAN TULLOSS

WILLIAM B. TULLOSS, JR

MILLS-PENINSULA HEALTH SERVICES

JAHMAL T. DAVIS,

 

 

HEAring on Demurrer

TENTATIVE RULING:

 

  • HEARING REQUIRED. Counsel to be prepared to address the following issues:

 

  • This is a wrongful termination case arising out of Plaintiff’s employment as the Chief Technical Manager of Defendant Mills-Peninsula’s laboratory operations. The claim is focused in large part on Plaintiff’s management at a critical time in 2014 when the laboratory was to have an unannounced inspection by the College of American Pathologists, an organization that periodically performs such audits. Plaintiff alleges her wrongful constructive discharge during that period.

 

  • The basic gist of the Plaintiff’s claim here appears to be that the Defendant left the laboratory understaffed and without current up-to-date documentation of regular safety checks of lab equipment, with the result that Plaintiff was unfairly forced into a situation where she could not properly perform her job tasks.

 

  • Leaving aside the label on the first cause of action for Termination In Violation of Public Policy, and focusing on the facts alleged in the current Second Amended Complaint, why is it that Plaintiff has not at least stated a claim of negligence per se based on the regulatory administrative standards that she invokes? See, e.g., Daum v. SpineCare Medical Group, Inc. (1st Dist. 1997) 52 Cal. App.4th 1285, at 1306-1312, holding that it was reversible error for trial court to refuse negligence per se instructions based on State and Federal statutes and regulations governing clinical trials on experimental medical devices.

 

  • Also, again focusing on the factual allegations themselves, why is it that Plaintiff has not at least stated a claim of bad faith termination of her employment agreement based upon Defendant’s failure to reinstate her in the same or other comparable management position? See 3 Witkin, Summary of California Law (10th Edition 2005), Agency and Employment § 239, pp 307-308, noting that Bad Faith includes, among other things, “…evasion of the spirit of the bargain…” and “…willful rendering of imperfect performance…”.       

 

 

 

9:00

 

 

LINE 6

 

 

16-UD-00025

STEVE MICHELSON VS. VICTORIA HUGHOT

 

 

 

 

STEVE MICHELSON

MICHAEL BITONDO

 

VICTORIA HUGHOT

 

 

 

 

 

HEAring on Demurrer

 

TENTATIVE RULING:

 

·     OFF-CALENDAR AS MOOT. The Court notes that a Request for Dismissal Without Prejudice of this Unlawful Detainer case was filed as to the entire action on July 7, 2016. Filing was by an attorney who appears to have taken over the handling of the matter for Plaintiff who previously filed the action in pro per. Accordingly, the matter is Moot at this time and Ordered Off-Calendar.         

 

 

9:01    

 

LINE 7

 

16-UDL-00016

HCP, INC. vs. LABORATORY SKIN CARE, INC., et al

 

 

HCP, INC.

JUSTIN BERNSTEIN

LABORATORY SKIN CARE, INC.

RICHARD A. LAPPING

 

 

Motion for Summary Judgment

TENTATIVE RULING:

 

This Matter was set over from the L & M Calendar on Monday, July 18, 2016 at the joint request of Counsel. The Court carries forward its previously posted Tentative Ruling,  as follows:

 

  • HEARING REQUIRED. Plaintiff’s Counsel to clarify exactly how service of the motion papers was effected. 

 

  • This is an unlawful detainer case arising out of a long-term, three-year, commercial lease of office and laboratory space in the Edgewater Business Park in South San Francisco. Suit is brought on the basis of non-payment of rents.

 

  • The Court believes that this matter may need to go Off-Calendar for lack of a filing of a proper proof of service.

 

  • The proof of service on file shows that a staff person in the offices of Plaintiff’s Counsel located in Costa Mesa, California, “…caused to be delivered by hand to the offices of…“ Defense Counsel in San Francisco, California.  If this was done by a messenger service or process server in the San Francisco Bay Area, there is no accompanying record of delivery or proof of service signed by the person who actually effected service.  See Weil & Brown § 9:85.1 and § 9:85.2

 

  • Absent a showing of proper service, the Court is without jurisdiction to heard and determine the Motion.  The Court notes that it is not reasonably likely that Defense Counsel of record who timely filed the Answer to the Complaint herein would ignore a completely dispositive Motion such as this.  

 

 

 

 

 

 

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 JOHN L. GRANDSAERT

Department 11

 

400 County Center, Redwood City

Courtroom 2D

 

Wednesday, July 20, 2016

 

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

 you must call (650) 261-5111 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

 

LINE 1

CLJ 518962

CAPITAL ONE BANK N.A. VS. KEITH W. MCELROY

 

 

CAPITAL ONE BANK N.A.

MICHAEL S. HUNT

KEITH W. MCELROY

Pro Se

 

 

MOTION TO SET CIVIL LIMITED CASE FOR TRIAL BY CAPITAL ONE BANK N.A.

TENTATIVE RULING: 

 

Plaintiff is to file an at issue memo on or before July 26, 2016 and will notify the clerk’s office at that time not to set a pre-arbitration conference/case management conference as one has already been scheduled. The parties are to attend a pre-arbitration conference/case management conference on September 23, 2016 at 9:00 a.m. and file their case management conference statements on or before September 9, 2016.

 

 


POSTED:  3:00 PM

© 2016 Superior Court of San Mateo County