February 18, 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.

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 susan greenberg

Department 3

 

400 County Center, Redwood City

Courtroom 2B

 

Friday, February 16, 2018

 

NOTICE TO ALL COUNSEL

 

Until further order of the Court, no endorsed-filed “courtesy copy” of pleadings is required to be provided to the Law and Motion Department.

 

 

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

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Line: 1

16-CIV-00915    KATHERINE GALLO-PODESTA, et al. vs. MIKE ASSAF, et al.

 

 

KATHERINE L. GALLO-PODESTA             Pro/per

MICHAEL "MIKE" ASSAF                   MICHAEL A. FARBSTEIN

 

 

KATHERINE AND JOHN PODESTA’S motion for order permitting discoverY OF DEFENDANT MICHAEL ASSAF’S FINANCIAL CONDITION

TENTATIVE RULING:

 

This motion is withdrawn at the request of the moving party.

 

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.

 



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16-CIV-01627     ROBERT DOE vs. STANFORD HEALTH CARE, et al.

 

 

ROBERT DOE                             PAUL A. MATIASIC

stanford health care                   michael lucey

 

 

ROBERT DOE’S motion for leave to file SECOND amended complaint

TENTATIVE RULING:

 

The motion is granted.  There is a policy in favor of permitting amendments [Nestle v. City of Santa Monica (1972) 6 Cal.3d 920] and defendant has not established that it will suffer prejudice as a result of the amendment.  If defendant determines that a motion for summary adjudication is appropriate, it may seek plaintiff’s stipulation to have the matter heard within 30 days of trial and/or on shortened time.  In the alternative, defendant may make a motion for a trial continuance in the Presiding Judge’s department.  Plaintiff shall file the proposed Second Amended Complaint no later than February 23, 2018. 

 

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.

 

 



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17-CIV-00207     CHARLES LOWE vs. ROBERT LANE, et al.

 

 

CHARLES LOWE                           GEORGE W. ELLARD

robert lane                            cary smith

 

 

STATE OF CALIFORNIA’S DEPARTMENT OF TRANSPORTATION’S motion for summary judgment

TENTATIVE RULING:

 

Dropped from calendar, moot.  Notice of settlement filed 2/2/18.

 

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.

 



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17-CIV-00316     SAN FRANCISCO BAY MARINAS FOR ALL, INC., et al. vs.

                   CITY OF REDWOOD CITY, et al.

 

 

SAN FRANCISCO BAY MARINAS FOR ALL, INC. GARY F. REDENBACHER

CITY OF REDWOOD CITY                   KEVIN D. SIEGEL

 

 

ALISON MADDEN’S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT

TENTATIVE RULING:

 

This hearing is continued to March 29, 2018 at 9 am.

 

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.

 



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17-CIV-00524     DAVID BURNELL, et al. vs. JUAN VILLA, et al.

 

 

DAVID BURNELL                          JOSEPH G. SWEENEY

JUAN VILLA                             Harriman C. Jonathan

 

 

5. MOTION FOR ODER COMPELLING UYLSSIS GONZALEZ TO SUBMIT FURTHER RESPONSES TO PLAINTIFF DAVID BURNELL REQUEST FOR ADMISSION SET ONE AND FORM INTERROGATORY 17.1 AND FOR SANCTIONS

TENTATIVE RULING:

 

Plaintiffs David and Pauline Burnell’s Motion to Compel defendant Ulyssis Gonzalez, individually and dba Gonzalez Trucking, to provide further responses to Plaintiffs’ Requests for Admission and Form Interrogatory No. 17.1 is GRANTED.  All objections are waived.  Defendant shall serve verified, further responses, without objections, within 10 days of this Order.  The fact that defense counsel cannot locate the client is not grounds for a time extension.   

 

Under the circumstances, Plaintiffs’ request for sanctions is DENIED. 

 

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.

 

 

6. MOTION FOR ORDER COMPELLING JUAN VILLA TO SUBMIT FURTHER RESPONSES TO PLAINTIFF DAVID BURNELL REQUESTS FOR ADMISSIONS SET ONE AND FORM INTERROGATORY 17.1 AND FOR SANCTIONS

TENTATIVE RULING:

 

Plaintiffs David and Pauline Burnell’s Motion to Compel defendant Juan Villa, individually and dba Villas Trucking, to provide further responses to Plaintiffs’ Requests for Admission and Form Interrogatory No. 17.1 is GRANTED.  All objections are waived.  Defendant shall serve verified, further responses, without objections, within 10 days of this Order.  The fact that defense counsel cannot locate the client is not grounds for a time extension. 

 

Under the circumstances, Plaintiffs’ request for sanctions is DENIED. 

 

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.

 



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17-CIV-02104     TYDUS RICHARDS, et al. vs. KATHRYN HURLEY, et al.

 

 

TYDUS RICHARDS                         Pro/PER

KATHRYN HURLEY                         PRO/PER

 

 

TYDUS RICHARDS’S MOTION TO ENFORCE THE PARTIES SETTLEMENT AGREEMENT OR STAY CIVIL PROCEEDINGS

TENTATIVE RULING:

 

The Motion to Enforce Settlement Agreement brought by cross-defendant Tydus Richards is denied. The Motion for Stay of Civil Proceedings brought by cross-defendant Tydus is granted.

 

Because of the complexity of the underlying fact involving multiple parties with identical last names, the individual parties will be referenced herein by their first names.

 

Enforcement of the Alleged Settlement Agreement. The parties are in agreement that a written settlement contract was never finalized. To fill this gap, cross-defendant Tydus Richards (“Tydus”) argues that he took action based on the representations that a settlement had been reached and that only minor terms remained to be negotiated. Tydus has provided evidence of this, in the form of an email exchange between counsel that took place on November 16, 2017 and reads as follows:

 

From Michael McKay of K&L Gates LLP (counsel for Tydus) – 2:30 p.m.

 

Eric,

 

Thank you for taking the time to speak with me today about the two cases you discussed in your email below, Veltman v. Method AB, LLC; Santa Clara County Superior Court Case No. 17-cv-316605 and Tydus Richards, et al. v. Kathryn Hurley, et al., San Mateo Superior Court Case No. 17-CIV-02104.  We agreed that if our client, Mr. Richards, signs paperwork satisfactory to company counsel and your clients resigning as CEO and director of Method AB, LLC, your client will dismiss Veltmand v. Method AB and all counterclaims in Richards v. Hurley will be dismissed (Mr. Richards having already dismissed his claim in that case). We also agreed that my client we will work with company counsel on the equity issue.

 

From Eric Sidbotham of Parr Law Group (counsel for Thomas) – 3:05 p.m.

 

Mike, that is correct. We do have a settlement agreement for the Richards v. Hurley case, which we will represent to you after the other matters are wrapped up.

 

Decl. of McKay (f: 01/11/18), Ex. A (bold added).

 

Cross-complainant Thomas Veltman (“Thomas”) argues that the settlement terms were intended to apply to a separate action that was brought in Santa Clara Superior Court—an action to force Tydus to step down from his position at the business at the center of this embezzlement lawsuit, Method AB, LLC (“Method”). However, the email evidence provided by Tydus and quoted above references both the instant case and the Santa Clara case, and the words used by counsel for Thomas specifically refer to the title of the instant case. Decl. of McKay (f: 01/11/18), Ex. A.  As such, it appears that there was a meeting of the minds that the instant case had settled.

 

However, there is an issue here as to the nature of that meeting of the minds and whether it can be enforced via a simple noticed motion procedure. The authority for enforcing a settlement agreement via motion is contained in C.C.P. § 664.6, but Tydus expressly states that he is not bringing the present motion under that statute. Indeed, he cannot invoke that statutory process because that statute requires either: (1) a signed writing, or (2) oral terms that are set forth in open court, and neither are present here. To get around the fact that he is attempting to invoke the summary motion procedure to enforce a settlement agreement, Tydus cites In re Marriage of Woolsey (2013) 220 Cal.App.4th 881, 898 for the proposition that “the statutory procedure for enforcing settlement agreements under section 664.6 is not exclusive. It is merely an expeditious, valid alternative statutorily created.” (Citations omitted; internal quotations and brackets omitted.) However, Tydus fails to read the passage that immediately follows that quotation:

 

Settlement agreements may also be enforced by motion for summary judgment, by a separate suit in equity or by amendment of the pleadings to raise the settlement as an affirmative defense.

 

Id. (citations omitted; internal quotations omitted). The instant motion is not: (1) a motion for summary judgment, (2) a separate suit in equity, or (3) an affirmative defense. It is a formal noticed motion. The noticed motion procedure effectively allows the moving party to bypass the requirement of proving up all the elements of a contract. While C.C.P. § 664.6 allows this type of summary enforcement, it ties access to that summary procedure to a requirement that the terms be set forth either in writing, or in open court (such that they can effectively be recorded in the court’s minutes). Tydus has neither of these. While Tydus may have sufficient facts to support a cause of action for breach of contract or to raise an affirmative defense based on contract (the Court expressly makes no finding one way or the other as to the validity of such claims or defenses), he cannot obtain summary enforcement of a settlement that was never reduced to a writing. 

 

Staying the Case. The parties are in agreement that the five-factor test set forth in Keating v. Office of Thrift Supervision (9th Cir. 1995) 45 F.3d 322, 324 controls whether the instant case should be stayed. Those factors are addressed below.

 

Factor One – Prejudice to Plaintiff and Plaintiff’s Interest in Expedience. Here, the effective plaintiff (i.e. the cross-complainant) is Thomas. It appears that a stay will prejudice Thomas in two ways: (1) he will lose whatever tactical advantage can be gained from forcing Tydus to litigate on two fronts, and (2) he may suffer some delay in achieving civil recovery, which, in turn, may delay his ability to get the business, Method, off the ground. The first of these is true in any case involving the Fifth Amendment right against self-incrimination when a parallel civil case is pending, so it has little weight. The second of these is of relatively low value. First, Thomas may have an opportunity to seek restitution in the criminal case, so any delay in civil recovery may not actually be prejudicial. Second, if Thomas’ goal is to focus on rebuilding the business, the time and effort spent engaged in civil litigation would seem to divert from that goal. In other words, where restitution may be available from the criminal litigation, it appears somewhat disingenuous for Thomas to indicate a desire to press civil litigation so that he can move forward with his business. On the contrary, it appears that his primary motive is to maximize the strategic advantage of forcing Tydus to litigate on two fronts. In the end, Thomas appears to have little interest in expedience other than obtaining a tactical advantage.

 

Factor Two – Burden the Civil Proceedings Impose on Defendant.  The burden on Tydus is significant. Tydus is an individual criminal defendant being forced to defend himself on two fronts. Tydus began this litigation as a pro per litigant, and appears to have obtained counsel only after the seriousness of the criminal charges was realized. Tydus appears to have already made some tactical blunders in this case—indeed, the thrust of the first issue raised in this motion concerns a settlement agreement that was never reduced to a writing and Thomas dismissed his claims with prejudice prior to getting any settlement agreement in writing. In light of Tydus’ position, the weight of double litigation appears to be burdensome. However, “[t]he Constitution does not ordinarily require a stay of proceedings pending the outcome of criminal proceedings.” Keating v. Office of Thrift Supervision (9th Cir. 1995) 45 F.3d 322, 324 (citations omitted). In fact, simultaneous parallel civil and criminal proceedings are not objectionable unless substantial prejudice can be shown. Id. (citation omitted). As such, the mere burden of having to litigate on two fronts is insufficient on its own to warrant a stay.

 

It does appear here that there is significant discoverable information. The fraud and embezzlement alleged involve nearly two thousand transactions, some of which were overseas. Discovering all of that information is a significant task. To the extent that this information may be discoverable via civil litigation (i.e. an interrogatory requesting identifying information for particular transactions), but would not be so easy to discover in criminal proceedings (i.e. prosecutors and law enforcement would need to track down financial records on their own), there does appear to be a significant risk here that Thomas, who has every interest in applying pressure to Tydus in resolving the civil litigation, may be able to obtain information via civil discovery that may would place a serious burden on Tydus. Indeed, even the threat of this kind of overlapping information would increase the burden of the civil litigation as both Tydus’ criminal attorneys and civil attorneys would need to consider the ramifications of strategy in one case and how it would play out in the other.

 

Factor Three – Judicial Efficiency and Convenience of the Court. The facts surrounding the alleged embezzlement are at the center of both the civil and criminal proceedings. Those facts appear to involve nearly two thousand financial transaction, some of which occurred overseas. It is wasteful to have the civil and criminal proceedings move forward simultaneously, as that will cause significant overlap and redundancy in the litigation.

 

Permitting unrestricted discovery in this civil action at this time could lead to unnecessary consumption of the court's time and the parties' resources concerning matters that may be largely resolved by the outcome of the criminal case. Plaintiffs argue that the different burdens of proof render the actions “fundamentally different,” and that in the event of guilty pleas or verdicts, even after all such pleas are entered or criminal convictions obtained, plaintiffs will still need to conduct further discovery to learn the full scope of defendants' alleged conspiracy. The point is taken. Nonetheless, it is apparent here that “the criminal case may later streamline discovery in the civil case,” and this factor weighs in favor of a stay. 

Four In One Co., Inc. v. SK Foods, L.P. (E.D. Cal. 2010) 2010 WL 4718751, at *6, citing Bridgeport Harbour Place I, LLC, 269 F.Supp.2d. 6, 9 (D.Conn.2002). As such, the judicial efficiency factor weighs in favor of a stay.

 

Factors Four – The Interest of Non-Parties to the Civil Litigation. The parties do not define many interests of non-parties. While there may be witnesses who would be burdened by having to provide answers to two different requests (i.e. one request from prosecutors and another request via third party civil subpoenas) the factor for considering the interests of non-parties generally appears to concern others who might have an interest in the lawsuit. See Four In One Co., Inc. v. SK Foods, L.P. (E.D. Cal. 2010) 2010 WL 4718751, at *6.  While the facts underlying this case present a bit of a tangled web in terms of parties who were involved in the business (Tydus, Dorothy, Kathryn, Thomas, Marie, Arnold Erickson, and the “Doe” University), the potential interests of those parties are not briefed, but there do not appear to be interests at play that would weigh one way or the other on this issue.

 

Factor Five – The Interests of the Public in the Pending Civil and Criminal Litigation. The public has a greater interest in ensuring the fairness of criminal proceedings than in a civil dispute between two private parties, and, in particular, in ensuring that the criminal process is not subverted by ongoing civil cases. Square 1 Bank (N.D. Cal. 2014) 2014 WL 7206874 at *4, quoting SEC v. Alexander (N.D. Cal. 2010) 2010 WL 5388000 at *5. The risk here is that Thomas may use the civil litigation discovery procedures to obtain information that he can then share with prosecutors who may not otherwise be able to obtain that information, though, notably, that interest could be achieved via a protective order.

 

All Five Factors. All together, the interests above weigh in favor of granting a stay in this case.

 

The “Sword and Shield” Doctrine. The “sword and shield” doctrine does not apply here. As argued by Thomas, the “sword and shield” doctrine can be stated as follows:

 

The plaintiff who retreats under the cloak of the Fifth Amendment cannot hope to gain an unequal advantage against the party he has chosen to sue. To hold otherwise would, in terms of the customary metaphor, enable plaintiff to use his Fifth Amendment shield as a sword. This he cannot do.

 

Wehling v. Columbia Broadcasting System (5th Cir. 1979) 608 F.2d 1084, 1087, quoting Lyons v. Johnson (9th Cir.) 1969) 415 F.2d 540 (emphasis added). While it is true that Tydus was the plaintiff in this action, he is no longer in the shoes of the party who “has chosen to sue” because he has dismissed his claims with prejudice. In other words, he is on the defensive and not seeking to use the Fifth Amendment “as a sword.” Therefore, even if the doctrine did apply in California—which the authorities do not necessarily establish—it would not apply to this case in any event.

 

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.

 



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17-CIV-02888    FRED GEISLER, MD, et al. vs. TERRY J. JOHNSTON, et al.

 

 

FRED H. GEISLER, MD                    Jeffrey F. Ryan

TERRY J. JOHNSTON                      JAMES L. JACOBS

 

 

FRED GEISLER, NORMAN FLEMING AND GENA ZISCHKE’S MOTION FOR ORDER COMPELLING FURTHER RESPONSES FROM DEFENDANT TERRY JOHNSTON RE SPECIAL INTERROGATORIES, SET ONE, AND REQUEST FOR MONETARY SANCTIONS

TENTATIVE RULING:

 

Plaintiff FRED H. GEISLER, M.D.’s Motion to Compel Further Responses to Special Interrogatories (Set One) is GRANTED.  Defendant TERRY J. JOHNSTON is ordered to serve full and complete, verified responses to Special Interrogatories 5-9, 15-18, 27-29, 36-37, 54, and 56 no later than March 2, 2018.  The Court notes that Defendant objects to some of these interrogatories on the ground that no protective order is currently in place, and also notes that Plaintiff’s counsel executed a stipulated protective order on December 5, 2017, which Defendant’s counsel then failed to sign and submit to the Court.  To the extent that Defendant continues to assert this objection, his counsel is ordered to execute the protective order and submit it for the Court’s signature no later than March 2, 2018.

 

Plaintiff’s request for monetary sanctions is GRANTED in the amount of $4,600.  Defendant is ordered to pay this amount no later than March 2, 2018.

 

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.

 

 



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17-CIV-05388     DENISE SATERFIELD vs. SAN MATEO COUNTY TRANSIT

                   DISTRICT, et al.

 

 

DENISE SATERFIELD                      ALBERT G. STOLL, JR.

SAN MATEO COUNTY TRANSIT DISTRICT       WILLIAM COKE

 

 

SAN MATEO COUNTY TRANSIT DISTRICT’S MOTION TO STRIKE

TENTATIVE RULING:

 

Dropped from calendar, the issue is moot, a first amended complaint was filed 2/2/18.

 

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.

 



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17-CIV-05797     S&R DRYWALL, INC. vs. TRICORP GROUP INC., et al.

 

 

S&R DRYWALL, INC.                      DAVID M. MCKIM

tricorp group inc.                     paul kim

 

 

TRICORP GROUP, INC. AND TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA’S motion to compel arbitration and to stay

TENTATIVE RULING:

 

Defendants’ joint motion to stay matter and compel arbitration is GRANTED pursuant to the mediated agreement of the parties executed February 6, 2018 and attached as Exhibit A to the Reply filed herein wherein the parties agree to combine the instant action with another matter and arbitrate them together.

 

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.

 

 



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17-CLJ-02212     CAPITAL ONE BANK (USA), N.A. vs. MARIO J. CAMPOS

 

 

CAPITAL ONE BANK (USA), N.A.            MICHAEL S. HUNT

MARIO J. CAMPOS                        Pro/per

 

 

PLAINTIFF’S motion for order THAT MATTERS IN REQUEST FOR ADMISSION OF TRUTH OF FACTS BE ADMITTED

TENTATIVE RULING:

 

The motion is granted.  The genuineness of any documents and the truth of any matters in the requests for admission are deemed admitted. 

 

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.

 

 



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CIV538275     DAVID F. TAGGART, ET AL. VS. FORD MOTOR COMPANY

 

 

DAVID FERGUS TAGGART                   RICHARD M. WIRTZ

FORD MOTOR COMPANY                     RYAN BIRMINGHAM

 

 

DAVID AND MICHELE TAGGART’S motion for order to reset trial date AND REQUEST FOR SANCTIONS

TENTATIVE RULING:

 

Plaintiffs DAVID FERGUS TAGGART and MICHELE TAGGART's Motion for Order to Reset Trial Date and Request for Sanctions is DENIED. Plaintiffs have not demonstrated good cause to reset the trial date given the status of the coordination action. (Cal. Rules of Court, rule 3.1335(b).)  Nor have Plaintiffs demonstrated that sanctions are warranted. (Code Civ. Proc. § 128.5.)

 

The grounds for Plaintiffs bringing this motion are not well taken. (Notice of Motion, p. 2:9-14.)

 

First, Steve Mikhov has been and continues to be counsel of record for Plaintiffs since the commencement of this action. (See Complaint, filed Apr. 20, 2016.)  On March 7, 2017, Plaintiffs associated Wirtz Law APC ("Wirtz Law") as co-counsel of record. (Notice of Association, filed Mar. 7, 2017.)  Mr. Mikhov switched law firms, and Plaintiffs substituted Mr. Mikhov's prior firm for Knight Law Group, LLP ("Knight Law").  (Subst. of Attorney, filed Jun. 19, 2017.)  Accordingly, Wirtz Law and Knight Law have been Plaintiffs' co-counsel of record since June 19, 2017.

 

On July 11, 2017, the Judicial Council issued an Order Assigning Coordination Motion Judge, which included the instant action. (JCCP No. 4924, p. 16.)  On August 18, Mr. Mikhov and Knight Law filed opposition to the Petition for Coordination. (Vilchez Dec. ISO Opp., para. 8, Ex. D.) In the Joint Submission Regarding Cases Potentially Excluded From Petition For Coordination, Knight Law specifically sought to exclude the instant action as it was near "near trial." (Underwood Dec. ISO Motion, Ex. 3, p. 3:9-10, 3:27 – 4:1 ("Joint Submission").) Ford responded in that same Joint Submission that the instant action was not part of the coordination proceeding. (Id. at p. 4:13-17.) 

 

Mr. Mikhov and Knight Law Group were actively engaged in the coordination proceedings, knew of Ford's position in the Joint Submission, and knew or should have known of the instant action's exclusion from the coordination action prior to the October 2 status conference. The declaration of Jessica R. Underwood in support of this motion is artfully worded to limit this lack of knowledge to only herself and her firm Wirtz Law, and not co-counsel Mr. Mikhov and Knight Law Group. (Underwood Dec. ISO Motion, para. 12.) However, as co-counsel to Knight Law Group, Wirtz Law should have also known the aforementioned. (But see id. at para. 12 – 15.) It remains unclear why Wirtz Law was unaware of any of this when it appeared for Plaintiffs at the October 2 status conference.

 

Second, Wirtz Law and Knight Law are both co-counsel of record and jointly filed the instant motion.  (See Notice of Motion.) It is disingenuous for Plaintiffs to now argue that "Ford's counsel allowed Plaintiffs' counsel to operate on the mistaken belief that the case was included in the coordination, and that some action was required to attempt to remove it from the coordination to allow it to proceed individually" when co-counsel Knight Law already knew this. (Memo. Pts. & Auth ISO Motion, p. 7:16-21.)

 

Third, Ms. Underwood's statement that "Wirtz Law APC, did not learn of this case’s exemption from the coordination until [on or around December 2017], when my colleague Amy Smith was speaking to an attorney at Knight Law Group, LLP" is not well taken.  (Underwood Dec., para. 15.) As the two firms are co-counsel in the instant action, no sufficient explanation is given for co-counsel's failure to communicate with each other in the diligent prosecution of this action on behalf of Plaintiffs prior to the October 2 status conference. This is further evidenced in Plaintiffs' reply, late-filed on February 13, where Plaintiffs' counsel argue they were unaware and had no knowledge that the instant action was not coordinated.  (Reply, p. 2:19-24. See Code Civ. Proc. § 1005, subd. (b).) 

 

Monetary sanctions against Ford are not warranted based on the conduct ascribed by Plaintiffs. (Code Civ. Proc. § 128.5. See Underwood Dec. ISO Motion, para. 14.) The Court admonishes both Wirtz Law and Knight Law for bringing this frivolous motion. Had Ford sought monetary sanctions in opposition, the Court would have strongly considered granting them against Plaintiffs and their co-counsel.

 

In light of the status of the coordination action and Ford's intention to add on the instant action to that coordination action, the Court sets a Case Management Conference on May 18, 2018 at 9 a.m. in Department 21. (Cal. Rules of Court, rule 3.723.) The parties shall file a case management conference statement and be prepared to discuss: (1) the status of Ford's motion to add on the instant action to the coordination action; and alternatively (2) whether a trial date should be set. (Cal. Rules of Court, rule 3.725.)

 

The Court GRANTS Ford's Request for Judicial Notice, Exhibit I, but not for the truth of the matters asserted therein.

 

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.

 



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CIV538367     FCE BENEFIT ADMINISTRATORS, INC. VS HEFFERNAN INS B

 

 

FCE BENEFIT ADMINISTRATORS, INC         ALAN L. MARTINI

HEFFERNAN INSURANCE BROKERS             PETER O. GLAESSNER

 

 

PLAINTIFF’S motion for relief FROM STAY

TENTATIVE RULING:

 

This hearing is continued to March 15, 2018 at 9 am.

 

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.

 



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17-CIV-02888      FRED H. GEISLER, MD, et al. vs. TERRY J. JOHNSTON, et al.

 

 

FRED H. GEISLER, MD                    Jeffrey F. Ryan

TERRY J. JOHNSTON                      JAMES L. JACOBS

 

 

PLAINTIFF'S MOTION FOR ORDER COMPELLING FURTHER RESPONSES FROM DEFENDANT TERRY JOHNSTON REgarding FORM INTERRROGATORIES, SET ONE, AND REQUEST FOR MONETARY SANCTIONS

TENTATIVE RULING:

 

Plaintiff FRED H. GEISLER, M.D.’s Motion to Compel Further Responses to Form Interrogatories (Set One) is GRANTED.  Defendant TERRY J. JOHNSTON is ordered to serve full and complete, verified responses to Form Interrogatories 12.2, 12.3, and 12.6 no later than March 2, 2018.  To the extent that Defendant is claiming privilege over any withheld documents, Defendant is required to serve a Code-compliant privilege log.

 

Plaintiff’s request for monetary sanctions in connection with this motion is DENIED.

 

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.

 

 



9:01

Line: 15

17-UDL-01184     BRECKENRIDGE PROPERTY FUND 2016, LLC vs. GERALD M.

                     VOGEL, JR.

 

 

BRECKENRIDGE PROPERTY FUND 2016, LLC    SAM CHANDRA

GERALD M. VOGEL, JR.                   Pro/per

 

 

Plaintiff’s Motion for Summary Judgment or, alternatively, for Summary Adjudication

TENTATIVE RULING:

 

Plaintiff’s unopposed motion for summary judgment is granted.  Plaintiff has met its burden to show that there is no defense to the action as it has proved each element of its cause of action for unlawful detainer.  CCP §437c(p)(1).  See Undisputed Material Facts 1-5; Declaration of Olivia Reyes; Declaration of Gonzalo Lazlade; Exhibits 1 and 8. 

 

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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