February 22, 2018
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.

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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 GERALD J. BUCHWALD

Department 10

 

400 County Center, Redwood City

Courtroom 8D

 

TENTATIVE RULINGS

 

Wednesday, February 21, 2018

 

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

17-CIV-00642     MARK WUOTILA VS. VERONICA GENDRO PERTIWI, ET AL.

 

 

MARK WUOTILA                             SEAN P. RILEY

VERONICA PERTIWI                         YENNY YENG-LEE

 

 

DEFENDANT AND CROSS-COMPLAINANT’S MOTION FOR LEAVE TO FILE AMENDED CROSS-COMPLAINT

 

·         HEARING REQUIRED. COUNSEL TO PERSONALLY APPEAR. NO TELEPHONIC APPEARANCES. NO “COVERING” COUNSEL. Counsel shall be prepared to address the issues noted below.

 

·         This is a claim for elder abuse, both financial and physical, brought by Plaintiff Mark Wuotila who is 73 years old. Ms. Pertiwi has cross-complained for fraud, breach of contract, and sexual harassment. The case was filed over a year ago, on February 14, 2017. Trial is set for April 2, 2018.

 

·         After pleading amendments by the Defendant Ms. Veronica Pertiwi, and extensive discovery that called for involvement of a discovery referee, Ms. Pertiwi, who acted as a purported employed caregiver to Mr. Wuotila, seeks to drop her wage & hour claims – that she asserted in her Cross-Complaint – so that she can avail herself of administrative proceedings before the California Labor Commissioner.

 

·         In the current Motion papers seeking to file a new pleading deleting her breach of contract and fraud claims, but retaining her sexual harassment claims, Counsel for Ms. Pertiwi rely on statute and case law that permits such withdrawal of claims at any time prior to trial. In Opposition, Counsel for Mr. Wuotila contend that such withdrawal of claims will be extremely unfair to him. He calls upon the Court to exercise its discretion in finding such unfairness and denying the Motion.

 

·         Counsel to Address The Following Issues:

 

(1)    Given the proceedings in this case for over a year, and the fact that the Parties will be on the eve of trial shortly,has primary jurisdiction in the Labor Commissioner been waived?  Or, alternatively,– by virtue of over a year’s proceedings here – does primary jurisdiction, as a matter of law, now reside in the Court?

 

(2)    In her reply papers, Ms. Pertiwi denies that she is forum shopping and says that she merely seeks to preserve the Labor Commissioner’s jurisdiction over wage & hour claims. Is this long-delayed invocation of DLSE’s primary jurisdiction (as an administrative agency with special expertise in the relevant field) unduly prejudicial to Mr. Wuotila?

 

(3)    To the contrary, would not the denial of this Motion result in undue prejudice to Ms. Pertiwi because she would then face a potentially dispositive dismissal of her cross-complaint for failure to exhaust her administrative remedies?

 

(4)    Does DLSE’s Nov. 14, 2017 Notice to Ms. Pertiwi, that the Labor Commissioner will not hold administrative proceedings so long as Ms. Pertiwi has duplicative breach of contract and fraud claims pending in this Court, rise to the level of an acknowledgment by DLSE that the Court currently has the primary jurisdiction and should proceed with the upcoming trial?

 

(5)    Regarding the above questions, See, e.g., United States v. Western Pacific Railway Co. (1956) 352 U.S. 59, upholding ICC’s primary jurisdiction over interpretation of tariffs as to whether or not napalm gel bombs were within the wording “incendiary bombs” that were subject to ICC tariffs; see also Morton v. Superior Court (Fresno County) (5th Dist. 1970) 9 Cal.App.3d 977, applying exhaustion-of-administrative-procedures doctrine to a municipality, in that case the City of Fresno.

 

 

 

 

 

 



9:00

LINE: 2

17-CIV-01393     ARMANDO SOLORIO VS. XPO LOGISTICS, INC., ET AL.

 

 

ARMANDO SOLORIO                        CARLA J. HARTLEY

XPO LOGISTICS                          RYAN SABA

 

 

PLAINTIFF’S MOTION TO QUASH/MODIFY DEFENDANT/CROSS-COMPLAINANT XPO GF AMERICA, INC.’S DEPOSITION SUBPOENA TO JAS AND REQUEST FOR SANCTIONS

 

·         CONTINUED TO MARCH 6, 2018 AT 9:00 AM. By stipulation, Counsel for the Parties having jointly requested a Continuance and the Court having so Ordered on February 9, 2018, this matter is set over to Tuesday, March 6, 2018 at 9:00 am in the Law & Motion Department.

 

 

 



9:00

LINE: 3

17-CIV-02443     MD ANIS UZZAMAN, ET AL. VS. BRANDON K. HILL, ET AL.

 

 

MD ANIS UZZAMAN                        TIMOTHY B. BRODERICK

BRANDON HILL                           SEAN TAMURA-SATO

 

 

PLAINTIFF’S MOTION FOR ORDER TO WITHDRAW FROM NON-BINDING ARBITRATION, OR IN THE ALTERNATIVE, TO VACATE ORDER TO ARBITRATE PER CCP 473(D)AS VOID OR PER CCP473(B) FOR COUNSEL’S MISTAKE, INADVERTENCE, SURPRISE, AND/OR EXCUSABLE NEGLECT

 

·         GRANTED. Plaintiffs Anis Uzzaman and Fenox Venture Capital, Inc.’s Motion To Withdraw From Arbitration is Granted. For the reasons stated below, Plaintiffs Uzzaman and Fenox Venture are entitled to either (1) have the Court’s reference to Non-Binding Judicial Arbitration vacated or (2) have the $50,000 cap on Arbitration Award, if any, removed. Counsel shall Meet & Confer on which option should be Ordered.

 

·         Plaintiffs allege that Defendant Brandon Hill, posing as a female entrepreneur, posted an anonymous blog article falsely accusing his business competitor Plaintiff MD Anis Uzzaman of sexual misconduct, among other alleged falsehoods. Plaintiffs contend that the post caused Plaintiff Uzzaman and his company, Plaintiff Fenox Venture Capital, Inc., to lose large likely business deals, causing economic damages of approximately $55 million over ten years and causing significant general damages for Uzzaman.

 

·         In the CMC statement, neither Plaintiffs nor Defendant indicated that they were willing to participate in non-binding judicial arbitration. At the case management conference, however, the Court asked if Plaintiffs were willing to go to nonbinding judicial arbitration, and Plaintiffs’ counsel stated that they were “amenable” to it. Defendant’s counsel did not object to non-binding judicial arbitration. The Court (Hon. Robert Foiles) Ordered the case to non-binding judicial arbitration.

 

·         At the arbitration, Defendant’s counsel for the first time asserted that he was silent at the CMC and that arbitration was not by stipulation, but was by Plaintiffs’ “election.” When arbitration is not by stipulation, then an arbitration award is thereby capped by statute at $50,000. Also, the pertinent statute provides that if the Arbitrator awards Plaintiffs the maximum award of $50,000, then Plaintiff may not request a trial de novo. This Motion followed.

 

·         Local Rule 2.3G does not apply to this matter. Since the Rule specifies that a stipulation must be written, it does not apply to oral stipulations.

 

·         Code of Civil Procedure section 1141.12(b) and CRC Rule 3.881 mandate arbitration when a plaintiff “files an election” for arbitration and “each plaintiff agrees that the arbitration award will not exceed $50,000 as to that plaintiff.” In the present case, Plaintiffs never filed an election for arbitration. Their CMC Statement did not select arbitration as an acceptable ADR process. Also, Plaintiffs did not agree to a $50,000 cap on an arbitration award. Therefore, arbitration was not mandated under the statute or Rule of Court.

 

·         The Robinson and Invicta Plastics cases involved a plaintiff’s seeking relief before arbitration began, but that does not preclude Plaintiffs in this action from seeking the same relief. Plaintiffs filed this Motion as soon as they learned that Defendants took the position that they did not stipulate to arbitration, meaning that, as in Robinson and Invicta Plastics, arbitration would be limited to an award substantially lower than Plaintiffs’ claim.

 

·         Plaintiffs sufficiently demonstrate that the order to arbitration was the result of mistake, inadvertence, surprise, or excusable neglect. Plaintiffs’ counsel interpreted Defense counsel’s silence at the CMC as a “stipulation” to arbitration, which would mean that an arbitration award would not be limited to $50,000. (Code of Civ. Proc. sect. 1141.12, subd. (a); CRC Rules 3.811(a)(4) & 3.812(a).) If Defense counsel’s silence was a stipulation to arbitration, as Plaintiff’s counsel believed, then arbitration should proceed without a $50,000 cap on the award. If Defense counsel’s silence was not a stipulation, then Plaintiff was operating under mistake, surprise, or excusable neglect, in which case the order to arbitration should be set aside under section 473(b).

 

·         The parties counsel are ordered to meet and confer and agree on a form of order: (1) The order to arbitration be vacated (Code of Civ. Proc. 473(b)), or (2) The parties be ordered to further proceed with arbitration, which shall proceed without a $50,000 cap on award. (CRC Rules 3.811(a)(4) & 3.812(a).)

 

·         Subject to the Meet & Confer directed above, Moving parties Counsel 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

LINES: 4 & 5

17-CIV-03178     PATRICK WHITE VS. SHR PALO ALTO, LLC, ET AL.

 

 

PATRICK WHITE                          ALEX P. KATOFSKY

SHR PALO ALTO, LLC                     ANAHIT TAGVORYAN

 

 

4. FOUR SEASONS HOTELS LIMITED’S HEARING ON DEMURRER TO FIRST AMENDED COMPLAINT

 

·         HEARING REQUIRED. COUNSEL TO PERSONALLY APPEAR. NO TELEPHONIC APPEARANCES. NO “COVERING” COUNSEL.

 

·         This matter is before the Court following remand from the United States District Court (N.Dist. Calif). The present Demurrers made by Defendants SHR Palo Alto, LLC and Four Seasons Hotels Ltd. are directed to Plaintiff Patrick White’s First Amended Complaint filed on Sept. 28, 2017 while the case was still pending in the U.S. District Court.

 

·         As this Court’s file does not include the operative pleading, Counsel are directed to lodge a copy of the First Amended Complaint in Dept. 10, when they check in with the Courtroom Clerk for the morning’s Law & Motion calendar, so that the Court will be in a position to evaluate the merits of the Defendants’ Demurrers.

 

·         The Court is otherwise prepared to hear argument on these pending Demurrers.

 

·         Meanwhile, the Court notes the gist of the action as follows:

 

·         Plaintiff PATRICK WHITE filed this putative class action lawsuit after a 2017 stay at the Four Seasons Hotel Silicon Valley in East Palo Alto, CA.  He asserts that he used his Visa card to pay for his hotel stay, and that the receipt contained more than the last five digits of his credit card number as well as the expiration date, in violation of 15 U.S.C. § 1681c(g).  

 

·         That Section provides: “Except as provided in this subsection, no person that accepts credit cards or debit cards for the transaction of business shall print more than the last five digits of the card number or the expiration date upon any receipt provided to the cardholder at the point of sale or transaction.”

 

·         The Plaintiff’s original Complaint, which this Court does have, alleges that Plaintiff, and all others similarly situated, were exposed to an increased risk of identity theft and unauthorized credit card charges due to this violation.  Plaintiff seeks statutory damages of “not less than $100 and not more than $1000” for each violation pursuant to 15 U.S.C. § 1681n(a)(1)(A), as well as punitive damages, attorney’s fees, and costs. 

 

·         Defendant SHR PALO ALTO, LLC is alleged to be the owner of this particular hotel, and Defendant FOUR SEASONS HOTELS LIMITED is the hotel manager. 

 

 

 

 

 

5. STRATEGIC HOTELS AND RESORTS LLC AND SHR PALO ALTO, LLC’S HEARING ON DEMURRER

 

·         HEARING REQUIRED. COUNSEL TO PERSONALLY APPEAR. NO TELEPHONIC APPEARANCES. NO “COVERING” COUNSEL.

 

·         This matter is before the Court following remand from the United States District Court (N.Dist. Calif). The present Demurrers made by Defendants SHR Palo Alto, LLC and Four Seasons Hotels Ltd. are directed to Plaintiff Patrick White’s First Amended Complaint filed on Sept. 28, 2017 while the case was still pending in the U.S. District Court.

 

·         As this Court’s file does not include the operative pleading, Counsel are directed to lodge a copy of the First Amended Complaint in Dept. 10, when they check in with the Courtroom Clerk for the morning’s Law & Motion calendar, so that the Court will be in a position to evaluate the merits of the Defendants’ Demurrers.

 

·         The Court is otherwise prepared to hear argument on these pending Demurrers.

 

·         Meanwhile, the Court notes the gist of the action as follows:

 

·         Plaintiff PATRICK WHITE filed this putative class action lawsuit after a 2017 stay at the Four Seasons Hotel Silicon Valley in East Palo Alto, CA.  He asserts that he used his Visa card to pay for his hotel stay, and that the receipt contained more than the last five digits of his credit card number as well as the expiration date, in violation of 15 U.S.C. § 1681c(g).  

 

·         That Section provides: “Except as provided in this subsection, no person that accepts credit cards or debit cards for the transaction of business shall print more than the last five digits of the card number or the expiration date upon any receipt provided to the cardholder at the point of sale or transaction.”

 

·         The Plaintiff’s original Complaint, which this Court does have, alleges that Plaintiff, and all others similarly situated, were exposed to an increased risk of identity theft and unauthorized credit card charges due to this violation.  Plaintiff seeks statutory damages of “not less than $100 and not more than $1000” for each violation pursuant to 15 U.S.C. § 1681n(a)(1)(A), as well as punitive damages, attorney’s fees, and costs. 

 

·         Defendant SHR PALO ALTO, LLC is alleged to be the owner of this particular hotel, and Defendant FOUR SEASONS HOTELS LIMITED is the hotel manager. 

 

 

 

 

 



9:00

LINE: 6

17-CIV-05934     BAYRICH DEVELOPMENT USA LLC VS. FIONA MARSH, ET AL.

 

 

BAYRICH DEVELOPMENT USA LLC             COREY M. POLLAK

FIONA MARCH                            PRO/PER

 

 

PLAINTIFF’S MOTION TO COMPEL ARBITRATION AND FOR APPOINTMNET OF NEUTRAL ARBITRATOR

 

·         OFF-CALENDAR. The Court is in receipt of an email from Petitioner’s Counsel, dated Feb. 14, 2018, stating that he has been unable to locate and serve the Respondent and requesting that this matter be dropped from the calendar. Accordingly, the matter is Ordered Off-Calendar.

 

 

 

 



9:01

LINE: 7

17-CIV-00645     LAURENCE BLICKMAN vs. TOWN OF ATHERTON, et al

 

 

LAURENCE BLICKMAN                      George P. Eshoo

TOWN OF ATHERTON                       STEPHEN V. HARRINGTON

 

 

MOTION FOR PROTECTIVE ORDER

 

·         OFF-CALENDAR. Plaintiff Laurence Blickman’s Deposition is currently set for February 23, 2018 at 9:00 am as per the Order of the Court (Hon. Susan Greenberg) filed February 8, 2018. Under the terms of that Order, Plaintiff was given this Hearing date and leave to file a Motion for Protective Order regarding that Deposition. However, no such Motion papers have been served on Defense Counsel as of the February 13, 2018 deadline to do so. Accordingly, the matter appears to be Moot and is Ordered Off-Calendar.

 

 

 

 

 

 

 



9:01

Line: 8

17-CIV-04855     SOLEDAD INIEGO vs. MARITES I. CADIZ, et al.

 

 

SOLEDAD INIEGO                         ERROL J. ZSHORNACK

MARITES I. CADIZ                       RODEL RODIS

 

 

DEFENDANT MARITES I. CADIZ'S DEMURRER TO COMPLAINT

 

·         CONTINUED TO MARCH 1, 2018 AT 9:00 AM. On the Court’s own Motion, this matter is set over to Thursday, March 1, 2018 at 9:00 am in the Law & Motion Dept. (A new Hearing date mutually agreeable to both Counsel, as previously directed by Judge Greenberg)

 

 

 

 

 

 

 



9:01

Line: 9

CIV538791     AGNI AVOYAN, ET AL. VS. YOHEI KOZAKI, ET AL.

 

 

YOHEI KOZAKI                           KENYON M. YOUNG

AGNI AVOYAN                            ANNA DUBROVSKY

 

 

Motion to Compel & Request for Sanctions

 

  • The Court carries forward its previously posted Tentative Decision, posted for the original Dec. 14, 2017 Hearing date, as follows:

 

·         GRANTED. Defendants and Cross-Complainants’ opposed Motion to compel Plaintiff Agni Avoyan to have Steven McIntire, M.D. complete the Independent Medical Examination (IME) that began on Sept. 18, 2017, is Granted.  Said further Medical Examination to be had within 45 days of Notice of Entry of Order.

 

·         If either party contests this Tentative Decision, Counsel Must Personally Appear. No Telephonic appearances. No “Covering Counsel”.

 

·         This is a personal injury case arising out of a multiple auto collision on US 101 in Belmont in October 2014.

 

·         After due Discovery request, an IME of Agni Avoyan, a Plaintiff here, was held on September 18, 2017 and conducted by a Neurologist Stephen McIntire M.D., with a certified Russian translator also participating. However, Dr. McIntire and the translator were so disrupted that the IME could not be completed. At least to some extent, Plaintiff Avoyan and her counsel did not participate in the IME in good faith.

 

·         On a date mutually agreeable with the parties, their counsel, and Dr. McIntire, Plaintiff Avoyan shall appear to continue and complete the IME.  Plaintiff and Plaintiff’s counsel shall cooperate with the further examination in good faith. Defense Counsel shall also be present to assure completion of the IME in an orderly and undisrupted fashion.  

 

·         Plaintiff is claiming serious and permanent injuries from the collision, and Dr. McIntire shall have latitude in inquiring regarding the collision itself, Plaintiff’s claimed injuries/symptoms immediately following the collision and in the weeks and months thereafter, as well as current symptions/problems.

 

·         The language in Plaintiff’s “Response and Objections” to Defendants’ demand for an IME (Young Decl., Ex. B), including the language in Parag. 9 which purports to severely restrict the examination’s scope (“no questions regarding plaintiff’s medical, accident or other history shall be asked), is an unwarranted obstruction of the Discovery process. 

 

·         The continued IME should not exceed an additional two hours.  Translations shall be provided only by the certified Russian translator; Plaintiff’s counsel shall refrain from preventing or interfering with the translations provided. 

 

·         The further IME shall be held in the Attorney Conference Room of the 8th Floor of the Courthouse, which Counsel will need to reserve for use. In the event that there occurs any improper disruption of the IME, Counsel shall take a recess and appear in Dept. Orders can be made for the IME to be completed.  

 

·         In the Court’s discretion, all requests for sanctions are DENIED. 

 

·         If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, Defendant shall prepare a 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. Form of Order to be submitted directly to Dept. 10 (Hon. Gerald J. Buchwald).

 



 

 

 


 

 

 


POSTED:  3:00 PM

 

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