April 29, 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

 

Special Set Calendar

Judge: Honorable susan irene etezadi

Department 18

 

400 County Center, Redwood City

Courtroom 2M

 

Friday, April 29, 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.

 

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 525365       MICHAEL D. LIBERTY VS. THOMAS NUSSBAUM, ET AL.

 

 

MICHEAL D LIBERTY                     MICHAEL D. LIBERTY

THOMAS NUSSBAUM                       PRO/PER

 

 

MOTION TO CONFIRM ARBITRATION AWARD AS TO THOMAS NUSSBAUM AND EVELYN CLAYTON BY MICHEAL D. LIBERTY

 

Plaintiff Michael D. Liberty, Individually and dba Law Office of Michael D. Liberty’s Motion to Confirm Arbitration Award is GRANTED.

 

The parties agreed to attend binding arbitration with the San Mateo County Bar Association, which they did and which awarded Plaintiff $105,000. The Defendants had 30 days in which to file an appeal of that award and did not do so within the time allotted. Therefore the arbitration award in favor of Plaintiff is confirmed and judgment on that award is entered pursuant to CCP § 1287.4. 

 

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, 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 Susan Irene Etezadi, Department 18, for the Court’s signature.

 

_____________________________________________________________________


9:00

2

CIV 527708    GARY RICHARD SALETTA, ET AL. VS. TDM TILING INC., ET AL.

 

 

GARY RICHARD SALETTA                  MICHAEL C. MILLER

TDM TILING INC.                       KEVIN P. MCCARTHY

 

 

MOTION FOR DETERMINATION OF GOOD FAITH SETTLEMENT BY VINTAGE CARPENTRY, INC.

 

The unopposed Application for Judicial Determination of Good Faith Settlement brought by Cross-Defendant Vintage Carpentry, Inc. is GRANTED pursuant to CCP §877.6 and Tech-Built, Inc. v. Woodward-Clyde Associates (1985) 38 Cal.App.3d 488. 

 

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, 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 Susan Irene Etezadi, Department 18, for the Court’s signature.

 

_____________________________________________________________________


9:00

3

CIV 528504       AMELIA CERVANTES VS. SEQUOIA CHILDREN'S CENTER

 

 

AMELIA CERVANTES                         ASHWIN LADVA

SEQUOIA CHILDREN'S CENTER

 

 

MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION OF ISSUES BY FIRST UNITED METHODIST CHURCH AGAINST AMELIA CERVANTES

 

 

Counsel for both parties is reminded to comply with CRC Rule 3.1113(f) (tables of contents and table of authorities required for all memoranda exceeding 10 pages.)

 

The motion for summary judgment is GRANTED. Under the undisputed facts, Plaintiff cannot prevail on any cause of action in her complaint.

 

     A.   Statute of Limitations Bars All Claims.

 

Under the undisputed facts, all claims are time-barred. With exceptions not applicable here, a complaint with the Department of Fair Housing and Employment must be filed within one year “from the date upon which the alleged unlawful practice or refusal to cooperate occurred . . . .” (Gov’t Code § 12960, subd. (d).) It is undisputed that Plaintiff was terminated on April 11, 2013. (UMF  7, 29, 51, 73, 95, 117 [1st through 5th causes of action respectively]; Cervantes Deposition at 14:17-21; First Amended Complaint ¶ 14.) It is undisputed that Plaintiff filed her complaint with the Department more than one year later on May 7, 2014, beyond the limitations period. (UMF 19, 41, 63, 85, 107; DFEH Complaint and Right to Sue Letter, Exhibit C to Trinh Declaration.)  All claims are based on the FEHA and are time-barred.

 

Plaintiff’s argument that the statute began to run in June 2013 when Defendant denied her reinstatement lacks merit. A cause of action for refusal to reinstate accrues on the date a former employee’s request for reinstatement is denied. (Mezey v. State of California (1984) 161 Cal. App. 3d 1060, 1063.) Plaintiff alleges that she was denied reinstatement on or after June 2013. However, no part of Plaintiff’s complaint is based on the denied reinstatement. Summary judgment cannot be granted or denied on grounds not raised in the pleadings. (Tsemetzin v. Coast Federal. Savings & Loan Ass’n (1997) 57 Cal.App.4th 1334, 1343.) All causes of action are based on injuries that occurred prior to or at the time of Plaintiff’s April 2013 termination. (First Amended Complaint ¶¶ 22, 30, 36, 39, 44.) All causes of action are based on actions or failures to act that occurred while Plaintiff was employed. A claim for refusal to reinstate would necessarily be based on actions occurring after termination. None of the claims is based on post-termination events or injuries.

 

     B.   All Causes of Action Lack Substantive Merit.

 

          1.   First, Second, Fourth, and Fifth Causes of Action. 

 

It is undisputed that Plaintiff was employed by Defendant First United, which is not an “employer” for purposes of the Fair Employment and Housing Act. (UMF 1 & 2; Articles of Incorporation, Exhibit A to Declaration of Trinh; Declaration of Ortega, ¶ 2; Cervantes Deposition at 57: 20-22 (Exhibit B to Declaration of Trinh First Amended Complaint, ¶ 10.)  Since the first, second, fourth, and fifth causes of action are all based on the FEHA, they have no merit against Defendant FIRST UNITED METHODIST CHURCH.

 

The failure to request summary adjudication in the Notice of Motion does not defeat this motion (see Opp. P&A at 7:21 – 8:9), because the Court is not granting summary adjudication as to fewer than all causes of action. Plaintiff’s attempt to dispute Material Fact 2 fails because Plaintiff admits that First United was her employer. (Cervantes Deposition at 57: 20-22, Exhibit B to Declaration of Trinh.) Plaintiff offers no evidence that Sequoia Children’s Center was her employer. Therefore, Plaintiff’s argument that First United’s non-employer status does not extend to Sequoia Children’s Center has no merit. 

 

          2.   Third Cause of Action.

 

It is undisputed that Defendant is not an “employer” for purposes of the California Family Rights Act, since Defendant has fewer than 50 employees. (UMF 64; Cervantes Deposition at 57:23- 25 (Exhibit B Declaration of Trinh). Therefore, the third cause of action, which is based on the California Family Rights Act, has no merit. (Govt. Code § 12945.2 (c)(2).)

 

Since the entire complaint has no merit, the Court need not rule on Defendant’s alternative arguments. For information purposes, the Court finds that a triable issue of fact exists on the question of whether Defendant’s stated reasons for termination were pretextual. The temporal sequence of events and the proximity in time between the protected activity and termination may allow a trier of fact to infer that the proffered reason for termination was pretextual. (Flait v. N. Am. Watch Corp. (1992) 3 Cal. App. 4th 467, 478; Miller v. Fairchild Indus., Inc. (9th Cir. 1986) 797 F.2d 727, 731.) Plaintiff’s termination just one month after she returned from leave creates a triable issue on the question of pretext.

 

 

 

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, 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 Susan Irene Etezadi, Department 18, for the Court’s signature.

 

_____________________________________________________________________


9:00

4

CIV 536193       DAMON BECNEL VS. THE COLLINGS FOUNDATION, ET AL.

 

 

DAMON BECNEL                             ARA JABAGCHOURIAN

THE COLLINGS FOUNDATION

 

 

MOTION TO STRIKE THE COMPLAINT BY THE COLLINGS FOUNDATION

 

Defendant The Collins Foundation Motion to Strike is GRANTED with Leave to Amend.  As to punitive damages, the plaintiff has failed to meet the heightened pleading standards for seeking punitive damages pursuant to Civil Code §3294. As to special damages, the complaint fails to set forth sufficient factual allegations to claim special damages and the prayer for relief does not request special damages.

 

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, 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 Susan Irene Etezadi, Department 18, for the Court’s signature.

 

_____________________________________________________________________


9:00

5

CIV 537384       JASON CROSS, ET AL. VS. FACEBOOK, INC., ET AL

 

 

JASON CROSS                              MARK PUNZALAN

FACEBOOK, INC.                           JULIE E. SCHWARTZ

 

 

SPECIAL MOTION TO STRIKE AND FOR ATTORNEYS' FEES AND COSTS, ETC. BY FACEBOOK, INC.

 

 

DEMURRER TO COMPLAINT of CROSS BY FACEBOOK, INC.

 

 

Defendant FACEBOOK, INC.’s Special Motion to Strike and Demurrer to Complaint are CONTINUED on the court’s own motion to May 9, 2016, at 9:00 a.m. in the Law and Motion Department.

 

_____________________________________________________________________


9:00

6

CIV 537530       SOPHIA ANDRITSAKIS VS. DAVID J. KAPLAN, ET AL.

 

 

SOPHIA ANDRITSAKIS                    EDIRIVERERE PATIENCE ADEYANJU

DAVID J. KAPLAN

 

 

MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT BY DAVID J KAPLAN, ET AL.

 

On April 15, 2016, Plaintiff filed a Request for Dismissal without prejudice as to Plaintiff’s request for punitive damages only. Therefore, defendant’s motion to strike punitive damages is MOOT and OFF CALENDAR.

 

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, 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 Susan Irene Etezadi, Department 18, for the Court’s signature.

 

_____________________________________________________________________


9:00

7

CLJ 534947       CAPITAL ONE BANK, (USA), N.A. VS. BERNARD T.

                   VALDERRAMA

 

 

CAPITAL ONE BANK (USA), N.A.             ANASTASIA LOLONG

BERNARD T. VALDERRAMA                     PRO/PER

 

 

MOTION FOR ORDER THAT MATTERS IN REQUEST FOR ADMISSION OF TRUTH OF FACTS BE ADMITTED BY CAPITAL ONE BANK (USA), N.A.

 

The unopposed Motion for Order Deeming Facts Admitted by Plaintiff Capital One Bank N.A. is GRANTED pursuant to CCP § 2033.280. All of those matters set forth in Plaintiff’s Request for Admissions [Set One], dated September 3, 2015, are hereby deemed admitted.

 

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, 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 Susan Irene Etezadi, Department 18, for the Court’s signature.

 

_____________________________________________________________________

 

 

 

 

 

 


POSTED:  3:00 PM

 

 

© 2016 Superior Court of San Mateo County