September 1, 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

 

AUGUST 27, 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 515902       MELINA MARTINEZ VS. MIGUEL LEON

 

 

MELINA MARTINEZ                       ARNE J. NELSON

ESTATE OF MIGUEL LEON                 LANCE BURROW

 

 

MOTION FOR SUMMARY JUDGMENT BY ESTATE OF MIGUEL LEON AGAINST MELINA MARTINEZ

 

 

·         Defendant ESTATE OF MIGUEL LEON’s Motion for Summary Judgment is DENIED.  There is a triable issue of material fact as to the size of the defect in the subject sidewalk.  Defendant asserts in his UMF No. 4 that the height differential is only ½” or the height of six 25-cent pieces stacked on top of each other and that, therefore, the trivial defect defense should apply.  Defendant cites to a number of cases in which a height differential between ½” – ¾” was considered a trivial defect in the absence of other contributing factors.  Dunn v. Wagner (1937) 22 Cal.App.2d 51; Ursino v. Big Boy Restaurants of America (1987) 192 Cal.App.3d 394; Caloroso v. Hathaway (2004) 122 Cal.App.4th 922.    

 

·         Plaintiff submits additional photographs of the stack of quarters and the sidewalk, which were all part of the same set of photographs produced at Plaintiff’s deposition, demonstrating that the height differential is higher than six stacked quarters.  Thus, UMF No. 4 is a triable issue of material fact and summary judgment pursuant to CCP § 437c is not warranted, particularly when Plaintiff has alleged other contributing factors, i.e., the knee-high shrubbery and an illegally parked motorcycle blocking a good portion of the sidewalk. 

 

·         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

2

CIV 520914       CEM BUILDERS, INC. VS. S.J. AMOROSO CONSTRUCTION CO.,

                   INC., ET AL.

 

 

CEM BUILDERS, INC.                    DAWNA J. CILLUFFO

S.J. AMOROSO CONSTRUCTION CO., INC.   JANETTE G. LEONIDOU

 

 

MOTION FOR ORDER COMPELLING FURTHER RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS AND THINGS PROPOUNDED TO CEM BUILDERS, INC. DBA TUCKER ENGINEERING AND REQUEST FOR MONETARY SANCTIONS BY S.J. AMOROSO CONSTRUCTION CO., INC., FEDERAL INSURANCE COMPANY AND SAFECO INSURANCE COMPANY OF AMERICA

 

 

·         Defendants S.J. Amoroso Construction Co., Inc., Federal Insurance Company and Safeco Insurance Company of America’s objection to the opposition papers filed by Plaintiff CEM Builders, Inc. dba Tucker Engineering is OVERRULED.  Although the opposition papers were filed one day short of the required nine (9) court days prior to the hearing as required under CCP § 1005(b), they were received by moving party defendants with sufficient time to file a 9-page reply brief on the merits.  Defendants suffered no prejudice by this one (1) day delay.

 

·         Defendants S.J. Amoroso Construction Co., Inc., Federal Insurance Company and Safeco Insurance Company of America’s Motion to Compel Further Responses to Request for Production [Set 1], Requests 63, 64 and 65, is GRANTED.

 

·         The subject documents requested [Request 63 - all documents, such as job cost reports concerning cause for the project; Request 64 - all documents such as labor reports concerning labor costs for any work performed on the project and Request 65 - all documents generated and maintained by Plaintiff to track all costs on the project] appear relevant to the breach of contract claim as well as the claim for reasonable value of services provided.  They also appear likely to lead to the discovery of relevant evidence.  CCP § 2070.010.  Further, Plaintiff has not controverted the fact that job cost reports are required to be maintained and disclosed by Plaintiff under sections 44 and 1115.C.4 of the general provisions governing the project.

 

·         Plaintiff’s claims that the subject requests violate their privacy and trade secret rights can be addressed by a protective order.  Plaintiff does not dispute that Defendants have previously offered to stipulate to a protective order to address these concerns.  The objections based on vagueness, ambiguity, overly broad, not reasonably particularized are nuisance objections that courts generally do not sustain.  Standon Co., Inc. v. Superior Court (1990) 225 Cal.App.3rd 898, 903.

 

·         Defendants’ Request for Sanctions is GRANTED in the amount of $1,825.00.

 

·         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.

 

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9:00

3

CIV 522716       MELISSA LUAULU, ET AL. VS. CHARLES H. BYRNE, ET AL.

 

 

MELISSA LUAULU                        JOSEPH S. TOBENER

ESTATE OF CHARLES H. BYRNE            COLIN H. JEWELL

 

 

MOTION TO STRIKE PLAINTIFFS' PUNITIVE DAMAGE ALLEGATIONS BY ESTATE OF CHARLES H. BYRNE AND KEN BYRNE

 

 

·         CCP § 436 authorizes the Court to strike improper matter from a complaint or cross-complaint.

 

·         Plaintiffs’ original Complaint asserted claims against Charles Byrne in his capacity as an owner of the property.  Mr. Byrne died prior to trial.  The claim for punitive damages against Mr. Byrne cannot be asserted against his estate or the representatives of his estate.  However, an estate representative/trustee who acts with oppression, fraud or malice can be held liable for punitive damages.  Vale v. Union Bank (1979) 88 Cal.App.3d 330, 339.

 

·         Defendants’ Motion to Strike Punitive Damages from Plaintiffs’ Complaint is GRANTED as to the Estate of Charles Byrne.  Punitive damages may not be asserted against the decedent or the decedent’s estate.  See CCP § 377.42.  Defendants’ Motion to Strike Punitive Damages from Plaintiffs’ Complaint is DENIED as to Ken Byrne individually.  An estate representative/trustee who acts with oppression, fraud or malice can be held liable for punitive damages.  Vale v. Union Bank (1979) 88 Cal.App.3d 330, 339.

 

·         The moving parties are directed to prepare a written order consistent with the Court's tentative ruling for the Court's signature, pursuant to CRC 3.1312, and provide notice thereof to all counsel as required by law and the California Rules of Court.  A copy of the order is to be delivered directly to Judge Elizabeth K. Lee in Department 17.

 

_____________________________________________________________________

9:00

4

CIV 523730       COUNSEL RB CAPITAL, LLC VS. SILICON VALLEY

                   DISPOSITION, INC., ET AL.

 

 

HERITAGE GLOBAL, LLC                  DAVID S. BLAU

SILICON VALLEY DISPOSITION, INC.      RYAN T. DUNN

 

 

DEMURRER TO SECOnd Amended COMPLAINT of HERITAGE GLOBAL, LLC BY SILICON VALLEY DISPOSITION, INC. AND JOHN CARROLL

 

 

·         Defendants Silicon Valley Disposition, Inc. and John Carroll’s Request for Judicial Notice is GRANTED pursuant to Evidence Code §§ 452(b) and 453.

 

·         Defendants Silicon Valley Disposition, Inc. and John Carroll’s Demurrer to Plaintiff's Second Amended Complaint is OVERRULED as to Defendants’ argument that the Plaintiff lacks capacity to maintain this lawsuit.  Plaintiff has sufficiently demonstrated that they are registered to do business in California and, thus, have standing to pursue this action.  Plaintiff has provided a Certificate of Registration from the California Secretary of State showing that RB Capital, LLC was duly registered to conduct business in the State of California and that they remain in good standing.  Plaintiff has also provided a Certificate of Amendment from the State of Delaware showing that RB Capital, LLC changed its name to Heritage Global, LLC.

 

·         Defendants Silicon Valley Disposition, Inc. and John Carroll’s Demurrer to Plaintiff's Second Amended Complaint is OVERRULED as to the 1st Cause of Action for Breach of Oral Contract.  The cause of action sufficiently alleges a cause of action for breach of oral contract.  (See ¶¶ 21 through 29.)

 

·         Defendants Silicon Valley Disposition, Inc. and John Carroll’s Demurrer to Plaintiff's Second Amended Complaint is SUSTAINED with leave to amend as to the 2nd Cause of Action for Breach of Implied Contract.  The cause of action fails to state sufficient facts alleging Defendants’ conduct manifesting an assent to enter into a contract and to the specific terms of that agreement.

 

·         Defendants Silicon Valley Disposition, Inc. and John Carroll’s Demurrer to Plaintiff's Second Amended Complaint is SUSTAINED with leave to amend as to the alter ego allegations.  Plaintiff’s allegations regarding individual defendant John Carroll do not establish him as a party to the contract nor as an individual to be held personally liable for a corporate entity.  Plaintiff’s alter ego allegations fail to allege sufficient facts establishing a valid alter ego claim.  See Vasey v. California Dance Co., Inc. (1977) 70 Cal.App.3d 742, 749.  There is a lack of specific allegation that Mr. Carroll is a shareholder and exerts sole control over the corporation.

 

·         Demurring 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

5

CIV 527347       KEALAONAPUA O'SULLIVAN LUM VS. MIDPEN HOUSING

                   CORPORATION, ET AL.

 

 

KEALAONAPUA O'SULLIVAN LUM            LAWRENCE D. MURRAY

MIDPEN HOUSING CORPORATION            DAVID M. MCLAUGHLIN

 

 

MOTION FOR PROTECTIVE ORDER BY KEALAONAPUA O'SULLIVAN LUM

 

 

·         The Motion for Protective Order is denied.

 

·         The evidence supporting the motion does not indicate that any witness other than Plaintiff, and possibly her immediate family, perceives any threat from Defendant Anthony Johnson or alleged associates.  Their names are already known in this action.  An order permitting the concealment of witness identities, or any other similar matter sought by the proposed protective order, is not warranted based on the record.

 

·         The evidence also does not support an advance order precluding Defendant Johnson from attending any deposition.  The proper remedy is a motion for protective order in the event that Defendant Johnson or any other person engages in conduct that interferes with a deposition.

 

·         If the tentative ruling is uncontested, it shall become the order of the Court.  Thereafter, Defendant Johnson’s counsel shall prepare for the Court’s signature a written order consistent with the above ruling, 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 528465       NILO VENTURA VS. MENLO COLLEGE, ET AL.

 

 

NILO VENTURA                          JOHN C. BEIERS

MENLO COLLEGE                         KATHERINE S. CATLOS

 

 

DEMURRER TO FIRST Amended COMPLAINT of VENTURA BY MENLO COLLEGE, JAMES KELLY, JULIE FILIZETTI, DAVID CHIEN, HOWARD DALLMAR, DAVID IRMER, MICAH KANE, CHARLES KEENAN, HARRY KELLOGG, SUZANNE DWORAK-PECK, THOR GEIR RAMLETH, JAMES REA, TOM SCANNELL, JOHN SHENK AND KRISTINE THAGARD

 

 

·         At the request of the moving parties, MENLO COLLEGE, JAMES KELLY, JULIE FILIZETTI, DAVID CHIEN, HOWARD DALLMAR, DAVID IRMER, MICAH KANE, CHARLES KEENAN, HARRY KELLOGG, SUZANNE DWORAK-PECK, THOR GEIR RAMLETH, JAMES REA, TOM SCANNELL, JOHN SHENK AND KRISTINE THAGARD, this matter has been taken off calendar.

 

_____________________________________________________________________

9:00

7

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

                   AL.

 

 

JOHN K. BLAKE, JR.                    PRO/PER

NELSON TRIM CO.

 

 

MOTION TO SET ASIDE ENTRY OF DEFAULT BY NAVIGATORS INSURANCE COMPANY

 

 

·         Defendant Navigators Insurance Company’s Motion to Set Aside the Default is GRANTED.  Defendant has established by a preponderance of the evidence that the default entered against Navigators Insurance Company was a result of the mistake, inadvertence, surprise or excusable neglect of counsel for Navigators Insurance Company.  Defendant Navigators Insurance Company has filed a timely motion to set aside the default pursuant to CCP § 473 (b).  Navigators Insurance Company shall serve an Answer to Plaintiffs’ Complaint within ten (10) days after service of notice of entry of the order setting aside the default against Navigators Insurance Company.

 

·         The moving party is directed to prepare a written order consistent with the Court's tentative ruling for the Court's signature, pursuant to CRC 3.1312, and provide notice thereof to all counsel as required by law and the California Rules of Court.  A copy of the order is to be delivered directly to Judge Elizabeth K. Lee in Department 17.

 

_____________________________________________________________________

9:00

8

CLJ 528158       DISCOVER BANK VS. MARILYN P. PUNO

 

 

DISCOVER BANK                         MARTIN HOFFMAN

MARILYN P. PUNI                       PRO/PER

 

 

MOTION FOR JUDGMENT ON THE PLEADINGS BY DISCOVER BANK

 

 

·         Plaintiff Discover Bank’s unopposed Motion for Judgment on the Pleadings is GRANTED WITH LEAVE TO AMEND so that Defendant can file an Amended Answer which properly sets forth a defense to the Complaint.  Said Amended Answer shall be filed within thirty (30) days after service of Notice of Entry of 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. 

 


 

 

 

 


POSTED:  3:00 PM

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