April 24, 2014
Law & Motions Tentative Rulings
  • Law and Motion Department Tentative Ruling Line:  (650) 363-1882
  • Other Judges' tentatives: please reference the appropriate Case Number and Case Caption below and contact the appropriate department.

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In the Superior Court of the State of California

In and for the County of San Mateo

 

Law and Motion Calendar

Judge: Honorable LISA A. NOVAK

Department 13

 

400 County Center, Redwood City

Courtroom 2C

 

APRIL 23, 2014

 

IF YOU INTEND TO APPEAR ON ANY CASE ON THIS CALENDAR YOU MUST DO THE FOLLOWING:

1.      YOU MUST CALL (650) 363-1882 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

1

CIV 514059    LORENZO SALHI, ET AL. VS. PNY TECHNOLOGIES, INC., ET AL.

 

 

LORENZO SALHI                         BRYAN M. PAYNE

PNY TECHNOLOGIES, INC.                GILBERT J. TSAI

 

 

MOTION FOR SUMMARY ADJUDICATION OF ISSUES BY LORENZO SALHI, SILICON VALLEY SOLUTIONS, INC.

 

  • Plaintiffs’ objection to the entire Declaration of Mayer (Objection #1) is overruled.

 

  • Plaintiff’s Objection No. 2 is OVERRULED. 

 

  • Plaintiff’s Objections 3 and 4 are sustained (Lack of foundation, personal knowledge. )

 

  • The motion is unopposed and granted as to PNY’s 1st, 6th, 7th, 11th, 12th, 15th, and 16th affirmative defenses, and Berkowitz’s 5th, 6th, 9th, 10th, 13th, and 14th affirmative defenses, none of which constitute new matter.

  • The motion is granted as to the 2nd affirmative defense (waiver).

 

  • Waiver is the intentional relinquishment of a known right. Plaintiffs have met their moving burden. Form Interrogatory 15.1 asked for “all” facts on which the waiver defense is based. Defendant’s response states only that waiver occurred by Plaintiffs’ “failing to perform his job duties with PNY by making virtually no progress in obtaining new customers . . . .” The response is a vague conclusion, consisting of no facts. At most, the response describes a breach of contract, not an “intentional relinquishment” of a contractual right. Defendant provided no further information in response to the supplemental interrogatory.

 

  • Defendants also referenced unspecified documents: “See Invoice Agreement, documents relating to Salhi' s performance, and other documents produced by PNY.” (Response to Form Interrog. 15.1.)  The Invoice Agreement contains no information regarding a waiver of Plaintiffs’ rights in the contracts, and “documents relating to Salhi’s performance” and “other documents produced by PNY” is not a response.

 

  • Finally, Defendants refer to their response to Material Facts 8, 9, and 19. As with response to Interrogatory 15.1, those statements and evidence describe only (at most) a failure to perform (breach). A contract breach is not a waiver of contractual rights.

 

  • The motion is denied as to the 3rd, 4th, and 9th affirmative defenses (estoppel, unclean hands, assent through misrepresentation, respectively) . 

 

·       Defendants’ Opposition references their contention that Salhi fraudulently represented that he made loans to SVS, citing their response to Material Fact 2, which describes Salhi’s representations about the loan, and then the failure of documentation to support that contention. The evidence is not enough to prove fraud, but it is sufficient to raise a reasonable inference that the representation might not have been true and whether Salhi acted fraudulently or in bad faith when inducing PNY to enter into the Invoice agreement with Plaintiffs.

 

  • The motion is granted as to the 5th affirmative defense (excuse by Plaintiff’s nonperformance).

 

·       To assert that Plaintiff has not performed is to assert that Plaintiff has failed to prove an element of the contract claim. It is not new matter; it is a denial. The cases relied on by Defendants (Jacobs v. Tenneco West, Inc. (1986) 186 Cal.App.3d 1413) concerns excuse “for” nonperformance (of a defendant), not excuse “by” nonperformance of the plaintiff. It is not the defense that is asserted in Defendant’s Answer. 

 

  • The motion as to the 8th affirmative defense (lack of consideration) is granted as against Defendant Cohen. The defense applies to contract claims, none of which are asserted against Defendant Cohen. The motion is denied as against Defendant PNY.

    

  • The motion is unopposed and granted as to PNY’s 6th and Berkowitz’s 5th affirmative defense (fault of others).

 

  • The motion is unopposed and granted as to PNY”s and Cohen’s 11th and Berkowitz’s 9th affirmative defense (failure to plead facts supporting punitive damages). The defense argues against sufficiency of pleadings; it is not new matter. Defendants’ Opposition defends the Tenth affirmative defense (punitive damages violate constitutional rights), which is not at issue for this motion.

 

  • The motion is denied as to PNY’s and Cohen’s 13th and Berkowitz’s 11th affirmative defense (mitigation of damages).

 

·       Plaintiffs contend that Defendants’ suggested method of mitigation is not viable, because the entire SVS team became PNY employees, and “it was not reasonable nor practicable” for Plaintiffs to quit PNY and re -start SVS, which effectively was  shut -down.”  (Reply at 9:20 – 10:8.)  The reasonableness of the alleged mitigation is a triable issue that cannot be determined as a matter of law.

 

  • The motion is granted as to the 14th affirmative defense (unjust enrichment). The defense is a legal argument that raises no new matter.  

 

  • If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiffs 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 SANCTIONS BASED ON PLAINTIFFS' SPOLIATION OF EVIDENCE BY PNY TECHNOLOGIES, INC., GADI COHEN, PHILIP BERKOWITZ

 

  • Defendants’ motion is denied. The evidence does not suggest that any email existed on the Network Solutions servers, which were not produced in other forms already, or which would have been material either to disproving elements of Plaintiffs’ case or supporting elements of Defendants’ defenses. The deletion occurred long after SVS ceased its everyday functions, at a time when the key SVS personnel were working under PNY or otherwise not for SVS. There is no evidence contradicting or suggesting that SVS emails were deleted automatically after download (Declaration of Henkin ¶¶ 4-6).

 

  • The case of Williams v. Russ (2008) 167 Cal.App.4th 1215, though similar to the present situation in some respects, is dissimilar in material respects such that it does not compel a finding of spoliation. In Williams, the offending litigant Plaintiff removed evidence from Defendant’s possession under color of authority (Rules of Professional Conduct, Rule 3-700(D)). Plaintiff client, in the words of the Court, “cherry-picked” (Williams, supra, at 1224) favorable evidence and then allowed the rest to be destroyed. No copies of the file existed except for what Plaintiff picked out.

 

  • In contrast, here, the data on Network Solutions’ servers was not placed there by Plaintiffs. It was automatically created every time a third person corresponded with SVS by email, or vice versa. Also, a copy of every email presumably resided elsewhere, either on the sender’s or recipient’s computer, or both. Further, just as SVS’s email resided on Network Solutions’ servers, it is equally likely that another copy resides on the server that provided email service to persons with whom Plaintiffs corresponded. Although seeking evidence from third parties is more difficult, Defendants do not demonstrate, as in Williams, that obtaining other copies was impossible.

 

  • Plaintiffs’ opposing request for sanctions is denied. Although the present motion lacks merit, the Court concludes that imposition of sanctions against Defendants would be unjust.

 

  • If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiffs 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 SUMMARY JUDGMENT AS TO 1st Amended COMPLAINT of SALHI FILED BY PNY TECHNOLOGIES, INC., GADI COHEN, PHILIP BERKOWITZ

 

  • The Court has reconsidered Plaintiff’s objections since the matter was last on calendar on April 11, 2014, and has changed certain rulings as seen below:

 

  • Plaintiffs’ Objection Number 1 is overruled.

 

  • Plaintiffs’ Objections 2 -5, 7 – 17, through 19 are sustained for not being listed in the separate statement; if so listed, lack of authentication and personal knowledge. If a document was authenticated during deposition, the proponent of the evidence must cite to the testimony authenticating the document. If a document is a business record, Defendants must meet the foundational requirements of Evidence Code section 1271.

 

  • Plaintiff’s objections No. 6, and 18 are OVERRULED

    

  • Plaintiffs’ Objections 20  through 34 are overruled. Statements in a Memorandum of Points and Authorities are not evidence.

 

  • Defendants’ Objections 1 through 33 are overruled. Defendants have objected to Plaintiff’s additional Undisputed Facts, which are not evidence. The Court cannot rule on objections to the evidence supporting those facts, because Defendants do not identify which portions of evidence or testimony are objectionable. (See CRC Rule 3.1354(b)(3) [objection to evidence must “[q]uote or set forth the objectionable statement”].)

 

  • The motion for summary judgment is denied. The motion fails to demonstrate that the entire action has no merit. As to the alternative motion for summary adjudication, the Court rules as follows.

 

  • The motion is denied as to “Point I” of the first cause of action for Breach of Contract. 

 

·       A triable issue exists about whether Salhi’s statement about his loan to SVS was false. Material Facts 4 through 9 are disputed and in some cases not supported by the evidence cited. [i.e. evidence cited by Defendant does not support latter portion of UMF 4 that Salhi agreed to provide the documentation before he was hired and before the invoice was signed.] Also, Material Facts 10 through 12, concerning discrepancies between SVS’s Profit and Loss Statement and tax returns, are disputed or not supported by the evidence cited.

·       In addition, the motion fails to establish the “reasonable reliance” element of fraudulent inducement. The motion is devoid of any Material Facts addressing reliance. Defendants offer only a one-sentence argument that is not supported by any citation to evidence. (Moving P&A at 8:19-21.) Again, the attempt to cure the defect in the Reply papers is untimely. (Reply P&A at 3:16-18.)

 

  • The motion is denied as to “Point II” of the first cause of action for Breach of Contract.

 

  • The issue of “no consideration” is not identified in the Notice of Motion. (See Notice of Motion at 2:8-15 [identifying only fraudulent inducement and at-will status as bases for attacking the first cause of action].)  Also, the Separate Statement of Undisputed Facts does not address the issue of “no consideration.” The moving Points and Authorities argues a lack of consideration (Moving  P&A at 10:4-8.) None of those contentions is reflected in the Separate Statement concerning the Breach of Contract claim. (See Sep. Stmt Facts 1 through 16.)

 

  • The motion is denied as to “Point III” of the first cause of action for Breach of Contract

 

  • An at-will provision in an express written agreement, signed by the employee, cannot be overcome by proof of an implied contrary understanding. (Camp v. Jeffer, Mangels, Butler & Marmaro (1995) 35 Cal.App.4th 620, 630.)  The letter of employment states that employment is at-will, but it also states that employment is “subject to PNY’s employment policies,” which required PNY to document or inform of the reasons for termination. Plaintiff alleges that the written employment policies were “implied-in-fact” into the express agreement.  To the extent that Defendant relies upon UMF 16, Plaintiff does not contest that Salhi does not recall receiving copies of policies from PNY setting forth procedures for terminating an employee.  As such, it is inappropriate for Defendant to submit additional evidence in its Reply, and as such the Court has not considered it.

 

In Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, the employment was at-will. However, the employer had company policies and guidelines in writing guaranteed fair layoff protections. The Court held that, under these facts, there were triable issues as to whether those provisions became part of plaintiff's employment contract, and whether defendant breached that implied contract, notwithstanding the at-will nature of the employment. Plaintiff Salhi’s situation is similar. The employment was at-will, but the express written contract incorporated other written policies concerning termination. Therefore, as in Guz, a question of fact exists about whether those termination policies became part of Salhi’s employment contract.  Unlike Halvorsen v. Aramark Uniform Services (1998) 65 Cal.App.4th 1383, cited by Defendants, the termination policies at issue were express, not merely implied by conduct. 

 

  • The motion is denied as to “Point IV” second cause of action for breach of Implied Covenant. 

 

  • This cause of action does not merely repeat the same claims as breach of contract. (See, e.g., FAC ¶¶ 107 & 108 [non-contractual provisions].) Defendants’ second argument that Salhi’s termination is not actionable as a breach of implied covenant does not address the allegations in paragraphs 107 or 108.

 

  • As to “Point V,”  attacking the 3rd cause of action for Fraud and the 4th cause of action for Negligent Misrepresentation,  court rules as follows:

 

  • Denied as to “bait and switch.” There is no evidentiary basis to Defendants  motion on this issue, merely an argument. The Separate Statement contains no designated Undisputed Facts addressing the bait-and-switch allegations (Complaint ¶¶ 29-43.)

 

  • Denied as to the PNY-Cisco relationship. It is undisputed that Salhi knew of PNY’s prior relationship with Cisco, but disputed as to the extent to which Salhi was aware of the strained relationship between the companies.  Defendants rely upon Exhibit 12 to the Meyer declaration, but the Court has sustained Plaintiff’s objection thereto.  As such a dispute establishing a triable issue of material fact exists as evidenced by  UMF 17.   “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.” (Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1239.)  Despite Plaintiffs’ awareness of the Cisco inventory problems with PNY, it is a triable issue of whether Plaintiffs' reliance on Cohen’s representation was reasonable or justified.  The evidence does not necessarily compel a conclusion that reliance was not justified.

 

  • Granted as to the Manufacturing Plant.

 

  • Statements of future events generally cannot form the basis of fraud unless the speaker has reason to know that the statement is false. The statement concerning the completion date of the manufacturing plant was a statement about a future event, which on its face cannot be determined to be true or false.  Plaintiffs contend that Cohen “was reckless in making this representation because he knew that the facility was still far from being complete.” Plaintiffs cite no evidence to support this contention. Plaintiffs fail to raise any triable issue of fact about whether Cohen knew his prediction about the completion date was false (or based on information he knew to the contrary)

 

     Granted as to Berkowitz’s promises.

 

  • Defendants argue that Berkowitz never made any such promises “without intent to perform.” Berkowitz testified that he arranged a meeting between the SVS team and one of his most important customers. (Deposition of Berkowitz at 100: 2- 14.) Also, the letter offer to Salhi excluded the Quadro business from the revenue targets. (Complaint, Exhibit B; also attached as Exhibit 4 to Declaration of Mayer.)  Defendants’ evidence supports an inference that Berkowitz’s promise was true. Plaintiffs’ opposition states only that “Berkowitz prevented the OEM Group from participating in sales to Berkowitz' s accounts and failed to include the OEM Group in Berkowitz' s sales structure.”  (Opposing P&A at 18:4-6.) Plaintiffs cite no evidence in support of this contention. Plaintiffs also argue that “it took until January to get the list of Berkowitz' s accounts and Haidari could only vividly remember one time that he was allowed to participate in sales efforts to Berkowitz' s accounts.” (Opposing P&A at 18:6-8.)  Again, there is no citation to evidence.  Under the undisputed material facts, the allegation that Berkowitz’s promises were made without intent to perform lacks merit.

 

  • As to “Point VI”, the 5th cause of action for Labor Code section 200:

 

  • Denied as to reimbursement for expenses.

 

  • Material Fact 26 is supported solely by Exhibit 20 to the Declaration of Mayer. The exhibit is unauthenticated and inadmissible even as a business record, for lack of foundation under Evid. Code §1271. To the extent the document were admitted, it appears to be merely a check stub, not a “copy of a check,” as stated in the declaration. The document would reflect only that payment was made, but not that it constituted full reimbursement for claimed expenses.

 

  • Granted as to Unpaid Bonus.

 

  • The bonus was discretionary, and it is undisputed that the SVS team did not deliver any sales revenue to PNY. (UMF 28.) Plaintiffs’ opposing argument is unsupported by citation to any evidence. (Oppos. At 18:21-26) Under the undisputed facts, no bonus was unpaid.

 

  • Denied as to the $500,000 Owed under the Invoice.

 

  • PNY argues only that the Invoice was procured by fraud. As set forth above, PNY fails to demonstrate fraudulent inducement or justifiable reliance

 

    

  • Denied as to unused vacation.

 

  • The material fact is that “Salhi’s final paycheck shows that he was paid $7,007.66 for unused PTO.” (UMF 30.) It is supported solely by “Exhibit 23” to Declaration of Mayer, which is described as Salhi’s final paycheck. The Court cannot view Exhibit 23 because it is lodged under seal. Thus, it is not part of the record. The Protective Order in this case permits a party to move for an order allowing certain matters to be filed under seal. (Protective Order ¶¶ 14-16.)  No party has made any such motion regarding the confidential exhibits to the Mayer Declaration. Since Exhibit 23 is not filed, the only supporting evidence for Fact 30 is not part of the record, UMF 30 is unsupported.

 

  • The motion is granted as to “Point VII”, sixth cause of action – Wrongful Termination.

 

  • The claim is based on (1) PNY’s motive to avoid paying $500,000 on the Invoice and (2) unpaid wages. (FAC ¶¶ 135-139.) A claim for wrongful termination in violation of public policy "must be predicated on a fundamental, well-established, substantial policy that concerns society at large rather than the individual interests of the employer or employee ...." (Hunter v. Up -Right, Inc. (1983) 6 Cal.4th 1174, 1186.)  To the extent that Defendants terminated Salhi in order to avoid making the $500,000 payment, breach of contract is a private matter that does not invoke concerns to “society at large.” Terminating Salhi for this reason was a private economic decision. Unpaid wages due at termination cannot constitute a violation of public policy. To do so would turn every claim for unpaid wages into a claim for wrongful termination.

 

  • The motion is granted as to the seventh cause of action for unjust enrichment.

 

  • Plaintiffs do not contest that “unjust enrichment” is not a primary right, but argue only that “unjust enrichment” is another way of asserting the common count of money had and received.  Plaintiffs offer no evidence that Defendants received any money that rightfully belongs to Plaintiffs. Plaintiffs describe products and services that they provided to Defendants. Plaintiffs offer no evidence suggesting that Plaintiffs received nothing in exchange. Plaintiffs fail to raise a triable issue of fact about whether Defendants were unjustly enriched at Plaintiffs’ expense.

 

 

  • If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiffs 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 521283    MAHENDRA K. LAL, ET AL. VS. WACHTER INVESTMENTS, ET AL.

 

 

MAHENDRA K. LAL                       MANDIP S. PUREWALL

WACHTER INVESTMENTS, INC.             BENJAMIN R. LEVINSON

 

 

MOTION TO DECLARE DEFENDANTS WACHTER INVESTMENTS AS PREVAILING PARTIES BY WACHTER INVESTMENTS, INC., RICHARD B. WACHTER

 

 

  • Defendants’ motion is granted.  Defendants are the prevailing party in this action as they obtained a judgment of dismissal in their favor.  CCP §1032(a)(4).  They are entitled to recover fees in the total amount of $14,000. 

 

_____________________________________________________________________


9:00

3

CIV 521896    UNITED RENTALS (NORTH AMERICA)

              VS.

              DISNEY CONSTRUCTION, ET AL.

 

 

UNITED RENTALS (NORTH AMERICA)        J. BRIAN URTNOWSKI

DISNEY CONSTRUCTION, INC.             CATHERINE W. DELOREY

 

 

DEMURRER TO 2nd Amended COMPLAINT of UNITED RENTALS (NORTH AMERICA) BY DISNEY CONSTRUCTION, INC., SAFECO INSURANCE COMPANY OF AMERICA, LIBERTY MUTUAL GROUP, INC., LIBERTY MUTUAL INSURANCE COMPANY, INTERNATIONAL FIDELITY INSURANCE COMPANY

 

 

  • In consideration of Plaintiff’s dismissal of Liberty Mutual Insurance Company, Liberty Mutual Group, Inc. and the 7th Cause of Action of the Second Amended Complaint,  the pending Demurrers by Defendants are now moot.

 

_____________________________________________________________________


9:00

4

CIV 524027    CORNERSTONE TITLE COMPANY VS. HC HOUSING, LLC, ET AL.

 

 

CORNERSTONE TITLE COMPANY             CHARLES A. KOSS

HC HOUSING, LLC                       GREG OZHEKIM

 

 

MOTION FOR ORDER OF DISCHARGE AND AWARD OF COSTS AND ATTORNEYS FEES BY CORNERSTONE TITLE COMPANY

 

 

·         Motion for order of discharge and award of costs and attorney’s fees is GRANTED.  Plaintiff shall be discharged from all liability arising out of the rights and obligations of the parties to the sum of $50,000 deposited by plaintiff arising out of plaintiff’s duties as escrow holder.  Code of Civ. Proc. Sec. 386.5.    In addition, plaintiff shall be awarded reasonable attorney’s fees in the amount of $4,207.50 and $1,194.30 in costs.  Code of Civ. Proc Sec 386.6.  Said fees and costs shall be  awarded from the funds deposited with the court.

 

·         The court denies plaintiff’s request for judgment in favor of defendant HC Housing, LLC.  The defendants’ rights to the proceeds deposited with the court must be adjudicated by the court. 

 

_____________________________________________________________________


9:00

5

CIV 524272    GUILLERMO MENESES, ET AL. VS. US BANK, N.A., ET AL.

 

 

GUILLERMO MENESES                     PRO/PER

US BANK, N.A.                         ERIC M. ALDERETE

 

 

DEMURRER TO 1st Amended COMPLAINT of MENESES BY US BANK, N.A., A NATIONAL ASSICIATION

 

  • Defendant US Bank N.A.’s Demurrer to the Plaintiffs’ 1st Amended Complaint is SUSTAINED without leave to amend as to all causes of action.  

 

  • The Court previously sustained Defendant’s demurrer to Plaintiff’s claim for wrongful disclosure without leave to amend. See minute order of January 9, 2014, Judge Bergeron. 

 

  • The First Cause of Action To Set Aside the Trustee’s Sale, the Second Cause of Action for Cancellation of Instrument and the Third Cause of Action for Wrongful Foreclosure fail for lack of tender of the amount owed on the property. Arnolds Management Corp. v. Eischen (1984) 158 Cal.App.3d 575, 578; Karlsen v. American Sav. & Loan Ass’n (1971) 15.Cal.App.3d 112, 117.

 

  • Moreover, the First Cause of Action to Set Aside the Trustee’s Sale also fails as it is rendered moot by the execution of the sale. The only remedy based on Section 2923.5 after foreclosure  is “postponement of the sale before it happens.”  Mabry v. Sup. Ct. (2010) Cal.App.4th 208, 235.

 

  • The Fourth Cause of Action for Unfair Business Practices also fails as the cause of action does not provide sufficient facts with reasonable precision to apprise Defendant of the nature, source, and extent of the alleged wrongdoing.  (Metzenbaum v. Metzenbaum (1948) 86 Cal.App.2d 750, 753.)  Plaintiff cites not legal authority for its claim, although the Court presumes its argument lies on Cal. Bus. & Prof. Code 17200.  Plaintiffs fail to specify the manner in which U.S. Bank violated any law or statute.  Additionally, Plaintiffs fail to plead (i) how U.S. Bank acted unlawfully or unfairly, and (ii) how Plaintiff’s suffered any damages as a result of these actions.  Plaintiffs further fail to plead specific facts when making conclusory allegations that U.S. Bank violated these statutes without bothering to inform U.S. Bank or the court of the specific nature of the violations.

 

  • If the tentative ruling is uncontested, it shall become the order of the Court. The moving party 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

6

CIV 525559    MASKAY, INC. VS. AUTOBAHN MOTORS, INC., ET AL.

 

 

MASKAY, INC.                          HERMAN FRANCK

AUTOBAHN MOTORS, INC.

 

 

DEMURRER TO 1st Amended COMPLAINT of MASKAY, INC. BY MERCEDES-BENZ USA, LLC

 

 

·         Department 13, Judge Lisa Novak, has recused herself from this matter.  The Demurrer is continued until May 30, 2014 at 9:00 a.m. and assigned to Department 04, Judge Joseph Bergeron for purposes of this motion. 

 

_____________________________________________________________________


9:00

7

CIV 526106    VICTOR ALBAUM VS. DIRK BAUMANN, M.D.

 

 

VICTOR ALBAUM                         PRO/PER

DIRK BAUMANN, M.D.

 

 

MOTION TO STRIKE PORTIONS OF PLAINTIFF’S VERIFIED COMPLAINT BY DIRK BAUMANN, M.D.

 

 

·         Defendant DIRK BAUMANN, M.D.’s unopposed Motion to Strike is GRANTED as to the prayer for punitive damages set forth in the Complaint at ¶ 14(a)(2).  The request for punitive damages fails to comply with Code Civ. Proc. § 425.13(a), since there is no prior Court order permitting the filing of a pleading claiming punitive damages.

 

_____________________________________________________________________


9:00

8

CIV 526107    VICTOR ALBAUM VS. BRUCE H. BERN, M.D., ET AL.

 

 

VICTOR ALBAUM                         PRO/PER

BRUCE H. BERN, M.D.                   BRADFORD J. HINSHAW

 

 

MOTION TO STRIKE PORTIONS OF PLAINTIFF'S VERIFIED COMPLAINT BY RICHARD H. MCDONALD, M.D., ARTHUR D. FU, M.D.

 

 

·         Defendants H. RICHARD McDONALD, M.D. and ARTHUR D. FU, M.D.’s unopposed Motion to Strike is GRANTED as to the prayer for punitive damages set forth in the Complaint at ¶ 14(a)(2).  The request for punitive damages fails to comply with Code Civ. Proc. § 425.13(a), since there is no prior Court order permitting the filing of a pleading claiming punitive damages.

 

 

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

9

CIV 526110    VICTOR ALBAUM VS. CHHAVI METAH, M.D.

 

 

VICTOR ALBAUM                         PRO/PER

CHHAVI METAH, M.D.

 

 

MOTION TO STRIKE PORTIONS OF PLAINTIFF'S VERIFIED COMPLAINT BY CHHAVI METAH, M.D.

 

 

  • Defendant CHHAVI MEHTA, M.D.’s unopposed Motion to Strike is GRANTED as to the prayer for punitive damages set forth in the Complaint at ¶ 14(a)(2).  The request for punitive damages fails to comply with Code Civ. Proc. § 425.13(a), since there is no prior Court order permitting the filing of a pleading claiming punitive damages.

 

 

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

10

CLJ 517151    JUSTIN WHITLEY VS. PEAK CALIFORNIA RESTAURANT GROUP

 

 

JUSTIN WHITLEY                        E. MICHAEL LINSCHEID

PEAK CALIFORNIA RESTAURANT GROUP      DAN C. SCHAAR

 

 

MOTION TO BE RELIEVED AS COUNSEL BY JUSTIN WHITLEY

 

  • Counsel E. Michael Linscheid’s Motion to be Relieved as Counsel for Plaintiff Justin Whitley, is GRANTED pursuant to CCP § 284(2) and CRC § 3.1362. Counsel has filed this motion using the required forms and has provided notice to his client and opposing counsel.

 

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

11

CLJ 523591    DISCOVER BANK VS. JEAN B. DAVID

 

 

DISCOVER BANK                         BRIAN N. WINN

JEAN B. DAVID                         PRO/PER

 

 

MOTION TO DEEM FACTS AS ADMITTED BY DISCOVER BANK

 

 

  • Plaintiff DISCOVER BANK’s Motion to Deem Facts as Admitted and Request for Monetary Sanctions are GRANTED pursuant to CCP § 2033.280.   Plaintiff served Defendant with relevant discovery over two months ago, and Defendant has still not responded. All those matters in Plaintiff’s Request for Admissions [Set One] dated January 27, 2014, are hereby deemed admitted. Defendant is also ordered to pay Plaintiff $260 in sanctions pursuant to CCP §§ 2033.280(c) and 2023.020.

 

 

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

 

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POSTED:  3:05 PM

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