July 25, 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

 

Law and Motion Calendar

Judge: Honorable GERALD J. BUCHWALD

Department 10

 

400 County Center, Redwood City

Courtroom 8D

 

Friday, July 22, 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.

 

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

 

CIV 528760

DINO MARTIN VS. RSM & A FORECLOSURE SERVICES, LLC, ET AL.

 

 

 

 

DINO MARTIN

STEVEN REIN

 

RSM & A FORECLOSURE SERVICES, LLC

 

 

 

 

 

MOTION FOR SUMMARY JUDGMENT AS TO SECOND AMENDED COMPLAINT OF MARTIN BY AURORA LOAN SERVICES LLC; AURORA COMMERCIAL CORP., AS SUCCESSOR ENTITY TO AURORA BANK FSB; AND NATIONSTAR MORTGAGE LLC

 

 

 

tentative ruling:

 

  • OFF CALENDAR.  The Court is in receipt of a Notice of

Settlement filed July 12, 2016.  Accordingly, this matter

     is ordered off calendar.

 

 

 

 

 

9:00

 

 

LINE 2

 

CIV535496

JOHN MOORE VS. NOVELTY, INC.

 

 

 

 

JOHN MOORE

BRIAN C. JOHNSON

 

NOVELTY, INC.

 

 

 

 

 

MOTION TO APPROVE PROPOSITION 65 SETTLEMENT AND CONSENT JUDGMENT BY JOHN MOORE

 

 

 

TENTATIVE RULING:

 

  • GRANTED.  Plaintiff John Moore’s unopposed Motion to Approve Proposition 65 Settlement and Consent Judgment is Granted pursuant to Health & Safety Code §25249.7(f)(4).

 

  • Plaintiff John Moore brought this claim against Defendant Novelty Inc. alleging that Defendant violated Prop 65 when it failed to warn customers in California of the health hazards associated with exposures to DEHP in the cords of its earphone products.  Di(2-ethylhexyl)phthalate [DEHP]  is a known toxic chemical associated with a risk of birth defects and other reproductive harm.

 

  • On May 21, 2015, Plaintiff served Defendant Novelty Inc. with a Proposition 65 60-day Notice of Violation alleging that Defendant had been selling products containing DEHP in California without appropriate warning labels as required under the proposition.  Upon the expiration of the 60-day notice, on September 18, 2015, Moore filed this complaint.

 

  • In April, the parties went to an ADR session and began to talk about the essential terms of a possible settlement.  On June 6, 2016, the parties agreed to and finalized this Settlement.  By the instant motion, they seek the Court’s approval of the Prop 65 settlement.

 

  • All parties have consented to the settlement, and notice has been provided to the California Attorney General and she has not submitted any opposition to the settlement and proposed consent judgment.  By this settlement, Defendant will come into compliance with Proposition 65 by agreeing to only manufacture, sell or otherwise distribute in California “reformulated” products or else provide an accompanying Proposition 65 warning as set forth in Sections 2.1 - 2.3 of the Consent Judgment.

 

  • Plaintiff has accepted the sum of $24,000.00 for his attorney’s fees and costs in initiating this action and Defendant has agreed to pay an initial civil penalty of $4,000. Although the penalty amount appears modest, it conforms to the strictures of the Health & Safety Code in that Defendant immediately undertook to remedy their failure to provide warning labels and their action was not willful or intentional.

 

  • The Court finds that (1) The warning or other injunctive relief required by the settlement complies with Proposition 65; (2) The attorney’s fees and costs provided by the settlement are reasonable under California law and (3) The amount paid in civil penalties is reasonable based on the criteria set forth in Health & Safety Code §25249.7(b)(2).

 

  • 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.

 

  • However, in this particular case, Plaintiff’s Counsel shall submit the original signed Consent Judgment so that the Court may add and execute its order of approval on the Consent Judgment.  Submission to be made directly to Department 10 for signature by Judge Gerald J. Buchwald

 

 

 

 

 

 

 

 

 

9:00

 

 

LINE 3

 

 

CIV 538423

JULIO R. ORTIZ VS. WILLIAM PANTOJA, ET AL.

 

 

 

JULIO R. ORTIZ

Pro/PER

 

WILLIAM PANTOJA

ALAN F. HUNTER

 

 

 

 

Hearing on Demurrer

 

 

 

TENTATIVE RULING:

 

  • sustained without leave to amend. Defendant Allstate Insurance’s Demurrer to Complaint is Sustained Without Leave To Amend.  Judgment of Dismissal With Prejudice to be entered.

 

  • Plaintiff Julio R. Ortiz has filed this case to evade a prior settlement of the same personal injury claims that he made in late 2014 or early 2015 arising out of an automobile collision on September 23, 2014.  Defendants William and Nancy Pantoja struck Mr. Ortiz with their pickup truck while he was riding his bicycle through an intersection in San Mateo.  The impact broke both of Mr. Ortiz’s legs.

 

  • In mid-February 2015, represented by counsel, Mr. Ortiz elected to settle his claims against the Pantojas by accepting the $25,000.00 policy limits of each of two separate auto liability policies issued by Allstate for a total $50,000.00.

 

  • Mr. Ortiz has attached the settlement closing documents to his Complaint, including the releases that he signed. Nevertheless, he sues again on the same claims and alleges that he has not been “made whole” by the prior settlement.

 

  • Most pertinent here, the settlement closing documents include Mr. Ortiz’s specific instructions to his attorneys at the time that they “…settle the claim for the stated policy limits in the sum of $25,000.00 fully recognizing that this is all the money I will ever be able to get from the defendants and that there is no other available parties from which to recover.”

 

  • The Court notes that Mr. and Mrs. Pantoja recently demurred on the basis that this current suit is barred by the settlement. On July 13, 2013, the Court (Hon. Jonathan E. Karesh) sustained the demurrer without leave to amend.

 

  • The prior settlement of Mr. Ortiz’s claims is a complete and absolute bar to this present lawsuit.  See, e.g., Larsen v. Johannes (1st Dist. 1970) 7 Cal.App.3d 491, 502, affirming summary judgment in negligence action against the defendant architect, based on alleged errors & omissions, when the defendant had been previously released from liability.

 

  • 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 as the tentative ruling affords sufficient notice to the parties.

 

  • However, prevailing 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, once that Order is entered, provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court.  The form order is to be submitted directly to Judge Gerald J. Buchwald, Department 10. 

        

 

 

 

 

9:00

 

 

LINE 4

 

CIV 532317

FCE BENEFIT ADMINISTRATORS, INC. VS. TRAINING,

REHABILITATION & DEVELOPMENT INSTITUTE, INC.

 

 

 

 

FCE BENEFIT ADMINISTRATOS, INC.

ROBERT D. EASSA

 

TRAINING, REHABILITATION & DEVELOPMENT INSTITUTE, INC.

GRACE A. CARTER

 

 

 

 

Motion for Leave to File Amended ANSWER TO Complaint

 

 

 

TENTATIVE RULING:

 

  • GRANTED. Plaintiff/Cross-Defendant FCE Benefit Administrators, Inc.’s unopposed Motion For Leave to File Amended Answer to Cross-Complaint is Granted. The Court notes that the Defendant/Cross-Complainant Training, Rehabilitation & Development, Inc. has filed a Non-Opposition to the Motion. FCE Benefit Administrators, Inc. shall file its amended pleading to the Cross-Complaint within 20 days of this Order.

 

  • This is an action for breach of contract, and related claims, arising out of Plaintiff FCE’s rendering of administrative support services for government contractors’ fringe benefit plans under ERISA.  Plaintiff seeks recovery of over $100,000.00 in allegedly unpaid fees for those services.

 

  • Following remand from Federal Court, Plaintiff seeks to conform its Answer to California pleading standards, adding a General Denial and an additional affirmative defense of Statute of Limitations.  The Court sees no undue prejudice in allowing these proposed amendments.

 

·         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

 

 

LINE 5

 

CIV 531736

KAREN LEAHY, ET AL VS. SUTTER HEALTH, ET AL.

 

 

 

 

KARYN LEAHY

JOSEPH W. CARCIONE, JR.

 

SUTTER HEALTH

J. JULIA HANSEN

 

 

 

 

Motion to Compel Depositions

 

 

 

TENTATIVE RULING:

 

  • HEARING REQUIRED. COUNSEL SHALL PERSONALLY APPEAR. NO TELEPHONIC APPEARANCES. NO “COVERING” COUNSEL. IT IS HEREBY ORDERED THAT COUNSEL ARE TO MEET AND CONFER AGAIN PRIOR TO THE HEARING AS DIRECTED BELOW.

 

  • This Motion, brought in a medical malpractice case arising from Plaintiff Karyn Leahy’s ankle surgery in September 2013, seeks to compel depositions of Defendant Dr. Saxena, an expert Dr. Dobbs and certain non-physician employees of Defendant Palo Alto Foundation Medical Group, whose declarations have been filed to support Dr. Saxena’s pending Motion for Summary Judgment.  That Summary Judgment is set for hearing on August 12, 2016, the case having a trial date of September 12, 2016.

 

  • In response to Plaintiffs’ Motion to Compel these declarants’ depositions, Defendant Dr. Saxena resists the discovery based upon St. Mary Medical Center v. Superior Court (2nd Dist. 1996) 50 Cal.App.4th 1531.  Clearly, opposing counsel here have differences of opinion as to the scope and applicability of that case.  The Court notes that opposing counsel have had some meet and confer on this matter but did not reach any resolution.

 

  • Prior to the hearing, the parties’ counsel shall further meet and confer and attempt to reach agreement on which of these previously noticed depositions should or should not be permitted.  If they have not reached any agreement by the time of the hearing, counsel shall be prepared to report on their discussions and explain why such efforts have not been successful.

 

  • Further, at the hearing, counsel for both sides are to be prepared to further meet and confer to discuss/resolve all of the issues arising from the subject of the current discovery dispute.

 

  • The Court intends to reserve the plaintiffs’ Request for Monetary Sanctions pending the completion of this discovery.

 

  • The Court issues this Order consistent with the guidelines set out in Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, at 1434, that states as follows:  “It is a general precept to the Civil Discovery Act of 1986 [citation] that civil discovery be essentially self-executing [citation].  The Discovery Act requires that, prior to the initiation of the motion to compel, the moving party declares that he or she has made a serious attempt to obtain ‘an informal resolution of each issue.’  [citation].  This rule is designed “to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order…… [citation].  This, in turn, will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes.  [citation].”  

 

 

 

 

 


 

 

 

In the Superior Court of the State of California

In and for the County of San Mateo

 

Presiding Judge Law and Motion Calendar

Judge: HONORABLE JOHN L. GRANDSAERT

Department 11

 

400 County Center, Redwood City

Courtroom 2D

 

Friday, July 22, 2016

 

If you plan to appear on any case on this calendar,

 you must call (650) 261-5111 before 4:00 p.m. and you must give notice also before 4:00 p.m. to all parties of your intent to appear pursuant to California Rules of Court 3.1308(a)(1).

 

Case                   Title / Nature of Case

 

9:00

 

LINE 1

CIV 537393

DERIC WALINTUKAN VS. SBE ENTERTAINMENT GOUP, LLC, ET AL.

 

 

DERIC WALINTUKAN

LIONEL Z. GLANCY

SBE ENTERTAINMENT GROUP, LLC

 

 

 

COMPLEX CASE STATUS CONFERENCE

 

TENTATIVE RULING: 

 

As case remains “removed” to federal court, the complex case status conference is continued 90 days to october 25, 2016 AT 9:00 A.M. IN DEPARTMENT PJLM.

 

 

 

 


 

 

 

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, July 22, 2016

 

IF YOU INTEND TO APPEAR ON ANY CASE ON THIS CALENDAR YOU MUST DO THE FOLLOWING:

 

1. YOU MUST CALL (650) 261-5118 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

 

LINE 1

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 CONTEMPT AND FOR ISSUE SANCTIONS REGARDING PLAINTIFF LIM’S REFUSAL TO SUBMIT TO COURT-ORDERED MENTAL EXAMINATION, OR TO FURTHER COMPEL EXAMINATION BY MIDPEN HOUSING CORPORATION, MIDPEN PROPERTY MANAGEMENT CORPORATION AND MIDPEN RESIDENT SERVICES CORPORATION

 

TENTATIVE RULING:

 

Defendant MIDPEN Housing Corporation’s Motion for Contempt is DENIED.  Defendant has failed to establish the Plaintiff’s willful disobedience of the Court’s order that she appear for a mental examination.  Conn v. Superior Court (1987) 196 Cal.App.3d 774, 784.  The plaintiff appeared for her examination, and after consultation with her counsel, invoked the privilege under CCP §2017.220(a).  Based on the history of the motion to compel, the examination and the order that the Court signed, Plaintiff and her counsel maintained a good faith belief that the protections of that code section applied to her examination.  Consequently, the Court cannot conclude that the plaintiff willfully disobeyed the Court’s order.

 

Defendant MIDPEN Housing Corporation’s Alternative Motion for Further Mental Examination is GRANTED.  The declarations by Dr. Lipian, in support of the original motion to compel her examination, and his declaration submitted in support of the motion for contempt are sufficient to demonstrate a nexus between other sexual conduct and the nature of the damages Plaintiff is claiming.  See Barrenda L, v. Superior Court (Los Angeles County) (1998) 65 Cal.App.4th 794, 802.  These declarations are sufficient to demonstrate the extraordinary circumstances that are required for this line of inquiry.  See Vinson v. Superior Court (Peralta Community College District) (1987) 43 Cal.3d 833, 843.  Plaintiff is ordered to appear on or before August 12, 2016 for the previously ordered mental examination with Dr. Lipian.  The examination is to cover the detailed categories of examination listed in the Notice of Mental Examination, dated April 21, 2016.  The Court finds that Defendant has established good cause for discovery regarding Plaintiff’s sexual conduct under CCP §2017.220(a).

 

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 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

 

 

 

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