July 22, 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

 

JULY 16, 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 511486       WAYNE T. KENNEDY, ET AL. VS. LEONARD BIALER, ET AL.

 

 

WAYNE T. KENNEDY                      HELENE A. SIMVOULAKIS

LEONARD BIALER                        CHRISTOPHER LAVORATO

 

 

MOTION TO BE RELIEVED AS COUNSEL FOR LEONARD BIALER BY CHRISTOPHER LAVORATO

 

 

·         Christopher Lavorato’s Motion to be Relieved as Counsel for Defendant Leonard Bialer 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, 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

2

CIV 520181       ERIC DIESEL VS. PENINSULA MEDICAL CENTER, ET AL.

 

 

ERIC DIESEL                           PRO/PER

PENINSULA MEDICAL CENTER              MICHAEL J. GARVIN

 

 

MOTION TO STRIKE PORTIONS OF COMPLAINT FOR DAMAGES BY MILLS-PENINSULA HEALTH SERVICES AND BRIAN H. JOHNSON

 

 

·         Defendants Mills-Peninsula Health Services [erroneously sued as Peninsula Medical Center] and Brian H. Johnson’s unopposed Motion to Strike is GRANTED without leave to amend.  Attorney’s fees are not recoverable in tort actions, absent an express statutory provision or contractual obligation.  Viner v. Untrecht (1945) 26 Cal.2d 261. There are no statutory or contractual provisions which would allow for the recovery of attorney’s fees in this action.

·         The attachments to the Complaint are irrelevant and improper because they are offered to bolster the truthfulness and veracity of Plaintiff’s claims but are not relevant or probative sources of information.  Both contain irrelevant, unsubstantiated hearsay.

·         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.

 

 

DEMURRER TO COMPLAINT of DIESEL BY BRIAN H. JOHNSON

 

 

·         Brian H. Johnson’s unopposed Demurrer to the Complaint is SUSTAINED with leave to amend.  The Complaint fails to state any facts or allege any conduct by Defendant Brian H. Johnson that would constitute a cause of action for negligence. Plaintiff shall have 10 days to file an amended pleading from the date of service of the order sustaining the demurrer.

·         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.

 

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9:00

3

CIV 520904       IVAN JEROME VAN PERRE, JR. VS. STATE OF CALIFORNIA

 

 

IVAN JEROME VAN PERRE, JR.            JUDY GRAZIANO

STATE OF CALIFORNIA                   RONALD W. BEALS

 

 

MOTION FOR ISSUE AND MONETARY SANCTIONS; OR IN THE ALTERNATIVE, FOR FURTHER RESPONSES FROM DEFENDANT BY IVAN JEROME VAN PERRE, JR.

 

 

·         Plaintiff’s Motion for Issue Sanctions is DENIED, and the Motion for Further Responses is GRANTED as to Interrogatory Nos. 3, 7, 9, 11 and 13.  Defendant is ordered to provide a further response without objections and without reference to any other documents; § 2030.230 has been waived.  Any relevant responsive information shall be written into the further response by Defendant.

 

·         Plaintiff’s Motion for Issue Sanctions is DENIED, and the Motion for Further Responses is GRANTED as to Interrogatory Nos. 4, 8, 10, 12, 14, 20 and 22 to the extent that Defendant shall provide a verified further response including all responsive names (including those disclosed in subsequent meet and confer if applicable).

 

·         Plaintiff’s Motion for Issue Sanctions is DENIED, and the Motion for Further Responses is GRANTED as to Interrogatory Nos. 19 and 21. Defendant is ordered to provide a further response without objections and without reference to any other documents; § 2030.230 has been waived.  These interrogatories call for an identification of inspections and not a general description of the activities of maintenance crews.

 

·         Plaintiff’s Motion for Issue Sanctions is DENIED, and the Motion for Further Responses is GRANTED as to Interrogatory No. 30 so that Defendant can provide a full and complete response to the interrogatory.

 

·         Defendant, State of California, shall pay monetary sanctions to Plaintiff in the amount of $5,310.00 for having to bring this motion.  This amount does not include the $860.00 referenced in this motion.  The amount of $5,310.00 shall be due within 10 days after service of Notice of Entry of Order.

 

·         All further responses noted above shall be served upon Plaintiff within 10 days after service of Notice of Entry of Order.

 

·         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.

 

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9:00

4

CIV 522176       APPLIED UNDERWRITERS, INC., ET AL. VS. ARTISAN

                   BUILDERS, ET AL.

 

 

APPLIED UNDERWRITERS, INC.            MICHAEL K. PERKINS

ARTISAN BUILDERS                      BETTY J. LEVINE

 

 

MOTION FOR LEAVE TO FILE CROSS-COMPLAINT AGAINST PLAINTIFF CALIFORNIA INSURANCE COMPANY BY JULIO SILVA

 

 

·         Defendant Julio Silva’s Motion for Leave to File Cross-Complaint Against California Insurance Company is GRANTED.  Plaintiff will not be prejudiced by the filing of the Cross-Complaint given that a trial date has not been set and full discovery will be allowed for these new claims. 

 

·         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.

 

 

MOTION FOR LEAVE TO FILE FIRST AMENDED CROSS-COMPLAINT BY ARTISAN BUILDERS AND RICHARD POWELL

 

 

·         Defendants Artisan Builders and Richard Powell’s Motion for Leave to File First Amended Cross-Complaint is DENIED WITHOUT PREJUDICE. California Rule of Court § 3.1324(a) requires that a motion to amend a pleading before trial must “(1) [i]nclude a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments…(3) State what allegations are proposed to be added to the previous pleading…and where, by page, paragraph, and line number, the additional allegations are located.”  Artisan Builders and Richard Powell included a proposed First Amended Cross-Complaint with their motion that is serially numbered.  The motion itself discusses what allegations are to be added to their original Cross-Complaint, but does not say by page, paragraph and line number where the additional allegations are located on that proposed amendment.  The statute requires a level of specificity in the pleadings that is not contained within. 

 

·         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.

 

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9:00

5

CIV 523065       RAEL & LETSON VS. MICHAEL CLARK, ET AL.

 

 

RAEL & LETSON                         MICHAEL S. DORSI

MICHAEL CLARK                         PAUL J. BARULICH

 

 

MOTION TO STRIKE BY RAEL & LETSON

 

 

·         The Motion to Strike is GRANTED.  Rescission is a contract remedy and both contract claims have no merit (see ruling on Demurrer). Cross-Complainant cites no authority in support of his argument that rescission is an appropriate remedy for his fraud causes of action (which seek damages).

 

·         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.

 

 

DEMURRER TO SECOnd Amended CROSS-COMPLAINT of CLARK BY RAEL & LETSON

 

 

·         Demurrers to the 3rd and 4th Causes of Action (Breach of Implied Contract and Breach of Oral Contract) are SUSTAINED without leave to amend.  The pleading fails to allege any oral or implied contract. The allegation that Cross-Defendant Rael & Letson would allow Cross-Complainant Michael Clark to “operate the company in the same or similar manner as he had prior to the ESOP transaction” is too vague to describe any enforceable promise.  (See SACC ¶¶ 50 & 56.)  The Cross-Complaint alleges various breaches in the form of “accusing Cross-Complainant of violating policies that did not exist, removing Cross-Complainant as a director, suspending him of his duties as CEO, and terminating his employment, without having a replacement to fill the CEO position.”  (Id ¶¶ 50 & 56.)  Nowhere, however, does the Cross-Complaint identify any contractual obligation of Cross-Defendant Rael & Letson against any of those acts.

 

·         Demurrer to the 5th Cause of Action is OVERRULED.  The Cross-Complaint does not allege that the IRS is investigating Cross-Complainant Michael Clark for any omissions on his personal tax return.  Thus, the 5th Cause of Action does not seek indemnity for any attorney’s fees relating to an audit of Cross-Complainant Michael Clark personally.  The Cross-Complaint also does not allege that Cross-Complainant Michael Clark is seeking indemnity for attorney’s fees he incurred in defense of a lawsuit against him by Cross-Defendant Rael & Letson.

 

·         The 5th Cause of Action alleges that the IRS is investigating Cross-Defendant Rael & Letson for tax liability resulting from actions that were taken by Cross-Complainant Michael Clark.  (SACC ¶ 63.)  It also alleges that Cross-Complainant Michael Clark took those actions in the course and scope of his employment.  (Id.)  It further alleges that Cross-Complainant Michael Clark incurred “costs . . . with respect to the ongoing IRS investigation.”  (Id. ¶ 64.)  Thus, the pleading alleges that Cross-Complainant Michael Clark incurred “costs” in the performance of his job.  If the allegations in the 5th Cause of Action are true, Cross-Defendant Rael & Letson could owe indemnification to Cross-Complainant Michael Clark under Labor Code § 2802.  Cross-Defendant Rael & Letson asserts several arguments that Cross-Complainant Michael Clark may not recover attorney’s fees, but the Cross-Complaint alleges “costs,” without limiting them to attorney’s fees.

 

·         Cross-Defendant shall file and serve an Answer to the Cross-Complaint no later than July 30, 2014.

 

·         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

6

CIV 526696       LINDA SABEH, ET AL. VS. ERIC WEINTZ, M.D., ET AL.

 

 

LINDA SABEH                           STEVEN A. FABBRO

ERIC WEINTZ, M.D.                     JENNIFER A. WAGSTER

 

 

MOTION TO STRIKE PLAINTIFFS’ REQUEST FOR PUNITIVE DAMAGES AND ATTORNEY FEES AND COSTS BY ERIC WEINTZ, M.D.

 

 

·         Defendant’s Motion to Strike is DENIED.  Plaintiffs’ elder abuse cause of action is sufficiently stated.  Further, Code of Civil Procedure § 425.13 does not apply to an elder abuse claim.

 

·         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. 

 

 

DEMURRER TO FIRST Amended COMPLAINT of SABEH BY ERIC WEINTZ, M.D.

 

 

·         Defendant ERIC WEINTZ, M.D.’s Demurrer to First Amended Complaint is OVERRULED as to Plaintiffs’ 2nd Cause of Action for elder abuse and 3rd Cause of Action for negligent infliction of emotional distress.  Both causes of action sufficiently allege a cause of action.

 

·         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

7

CLJ 208879       AKTOTA KAKAN JANABILOVA VS. VLADIMIR KRAVTCHENKO, ET

                   AL.

 

 

AKTOTA KAKAN JANABILOVA               D. BRAD JONES

VLADIMIR KRAVTCHENKO                  TIMOTHY S. O'HARA

 

 

MOTION TO COMPEL APPEARANCE FOR ORAL DISCOVERY AND FOR SANCTIONS BY AKTOTA KAKAN JANABILOVA

 

 

·         Plaintiff’s Motion to Compel Appearance for Oral Discovery and for Sanctions is granted and denied in part.  That portion of the motion to compel seeking production of the requested documents is denied as Plaintiff failed to file the required separate statement.  (CRC § 3.1345(a)(5).)  That portion of the motion seeking to compel Mrs. Kravtchenko’s appearance at deposition is granted.  However, given that Mrs. Kravtchenko has presented a general note from a doctor that she is unable to be deposed prior to September 10, 2014, Mrs. Kravtchenko is ordered to appear for deposition on September 11, 2014.

 

·         Both parties’ requests for sanctions are denied.

 

·         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.

 

 

MOTION FOR PROTECTIVE ORDER BY GALINA KRAVTCHENKO

 

 

·         Defendant/Cross-Complainant Galina Kravtchenko’s motion to dismiss the 2nd Cause of Action of the Cross-Complaint is moot.  Defendants’/Cross-Complainants’ request for dismissal of that cause of action, without prejudice, was filed and entered on June 19, 2014.

 

·         Galina Kravtchenko’s Motion for a Protective Order is granted and denied in part.  That portion of the motion seeking an order that a Russian translator be provided by Plaintiff 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.

 

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POSTED:  3:00 PM

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