December 8, 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 jonathan e. karesh

Department 20

 

400 County Center, Redwood City

Courtroom 8C

 

Friday, December 2, 2016

 

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

 

 

9:00

Line: 1

16-CIV-00052     IBRAHIM BASMA, et al. vs. MARYMOUNT GATEWAY

                    APARTMENTS, LLC, et al

 

 

RANA SHEHAB                           MARK HOOSHMAND

JASBIR WALIA

 

 

Demurrer to complaint

TENTATIVE RULING:

 

The demurrer is ordered off-calendar.  On November 29, 2016, Presiding Judge, John Grandsaert designated this litigation as complex and assigned the matter for all purposes to the Hon. Marie S. Weiner, Department 2.  The parties are directed to contact Dept. 2 at (650) 261-5102 to obtain a new hearing date for the demurrer.

 



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16-CIV-00848    MARSHALL A. MASOLI vs. TOYOTA MOTOR CREDIT CORPORATION

 

 

MARSHALL A. MASOLI                     FRED W. SCHWINN

TOYOTA MOTOR CREDIT CORPORATION        LE T. DUONG

 

 

DEFNEDANTS MOTION FOR PROTECTIVE ORDER

TENTATIVE RULING:

 

The Motion of Defendant Toyota Motor Credit Corporation (“Defendant”) for Protective Order, is ruled on as follows:

 

Defendant’s Request for Judicial Notice is GRANTED.

 

Defendant’s Motion for Protective Order on the ground that Defendant need not respond to discovery requests until this case is at issue, is DENIED.  This argument is based on the grounds raised in Defendant’s Demurrer, which the court overruled in part on November 2, 2016.

 

Defendant’s Motion for Protective Order seeking to limit the scope of permissible discovery, is ruled on as follows:

 

Defendant’s motion as to Special Interrogatories nos. 13-20, Request for Production of Documents nos. 3, 7, 9, 11-17, and 22-27, and Request for Admissions nos. 1-3, is DROPPED as MOOT.  The court sustained Defendant’s demurrer to Plaintiff’s claim for violation of the Rosenthal Fair Debt Collection Practices Act, and therefore Plaintiff Marshall Masoli (“Plaintiff”) agrees to withdraw these interrogatories and requests that pertain to this claim, provided that these interrogatories and requests do not count toward Plaintiff’s discovery limit. 

 

Defendant’s motion as to Special Interrogatory no. 7, Request for Production no. 2 and Request for Admissions nos. 8-11, is DROPPED as MOOT.  Defendant states in reply that the parties have resolved the issues as to this discovery through the course of meeting and conferring.

 

Defendant’s motion as to Special Interrogatory no. 2 and Request for Production nos. 1 and 20, is DENIED.  Defendant has not established grounds for a protective order as to this discovery.  This denial is without prejudice to any objections that Defendant may have raised in responses to this discovery, in the event that Plaintiff brings a motion to compel further responses. 

 

Defendant’s motion as to Special Interrogatories nos. 9-12 and Request for Production nos. 5-6, and 20, is DENIED as to Special Interrogatories nos. 10 and 12 and Request for Production nos. 5 and 6.  This denial is without prejudice to any objections that Defendant may have raised in responses to this discovery, in the event that Plaintiff brings a motion to compel further responses to this discovery.

 

Defendant’s motion as to Special Interrogatories nos. 9 and 11 and Request for Production no. 20, is GRANTED.  This discovery seeks Defendant’s legal research, which is clearly privileged, and thus Defendant has established good cause for a protective order.  As such, Defendant need not answer Special Interrogatories nos. 9 and 11 and Request for Production no. 20.

 

Defendant’s motion as to Request for Production no. 21, is GRANTED.  Defendant has established good cause for a protective order as to this request, and therefore need not answer this request.

 

Defendant’s motion as to Request for Production nos. 18-19, is DENIED. This denial is without prejudice to any objections that Defendant may have raised in responses to this discovery, in the event that Plaintiff brings a motion to compel further responses to this discovery.

 

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-01827     EVELYN T. COTTRELL vs. DAVID RAY JEFFERS, et al.

 

 

EVELYN T. COTTRELL                     GEOFFREY E. WIGGS

DAVID RAY JEFFERS                      JAMES D. BURNISIDE, III

 

 

DEFENDANTS MOTION FOR CHANGE OF VENUE

TENTATIVE RULING:

 

Defendants’ motion to change venue to Fresno County is GRANTED.  Plaintiff has not identified a statutory basis for venue in San Mateo County.  The evidence establishes that three of the four defendants reside in Fresno County.  No defendant resides in San Mateo County.  Normally a defendant is entitled to have an action tried in the county of his or her residence unless an exception to the general venue rule applies.  Code Civ. Proc. Sect. 395; Brown v. Superior Court (1984) 37 Cal.3d 477, 483.  Plaintiff has not identified any applicable exception to the normal rule. 

 

Code Civ. Proc. Sect. 395.5, which governs corporations and associations, does not apply here because the Complaint names both individual and corporate defendants.  Id.  The individual defendants are not parties to the purchase Agreement, nor does the Complaint here allege breach of contract.  While the property at issue is located in San Joaquin County, the Complaint asserts numerous causes of action for fraud and misrepresentation, and Plaintiff’s Prayer seeks money damages against defendants.  An action for fraud or for money damages is generally considered a transitory claim triable in the county of defendants’ residence, and in “mixed actions” where a transitory action is joined with a local action, such as, in this case, the claim for quiet title, the transitory action controls as to venue.  Capp Care, Inc. v. Superior Ct. (1987) 195 Cal.App.3d 504, 508.  

 

The Court is sympathetic to the stated travel concerns given Plaintiff’s age.  However, Plaintiff has identified no authority providing that the normal venue rules do not apply merely because the Complaint includes a claim for Elder Abuse. 

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10.  If the tentative ruling is uncontested, prevailing party is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order is to be submitted directly to Judge Jonathan E. Karesh, Department 20.



9:00

Line: 4

CIV531588     MICHAEL A. RUDER VS. PAUL J. HOEKENGA ETAL

 

 

MICHAEL A. RUDER                       MARK HAESLOOP

PAUL J. HOEKENGA                       Pro/PER

 

 

MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT AND QUASH SERVICE OF

SUMMONS (CCP §418.10)

TENTATIVE RULING:

 

Defendant Richard E. Smith’s Motion to Set Aside Default and Default Judgment and Quash Service of Summons (CCP sec. 418.10) is DENIED.

 

Defendant Smith has moved under three code sections for relief: CCP secs. 473(b), 473(d) and 473.5. Section 473(d) is only available to correct mistakes or set aside a void judgment. The moving party has failed to present evidence of any mistake made here by the Court in granting the request for default, nor is the judgment void on its face.

 

CCP sec. 473(b) requires an application for relief to be made “within a reasonable time, in no case exceeding six months, after the judgment” was taken.

 

CCP sec. 473.5 requires the motion for relief to be served and filed “within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.”

 

Defendant Smith did not act to seek relief from default “within a reasonable time,” because he was told on July 29, 2016 at the MSC to file a motion “promptly.” The case went to trial on Aug. 29, 2016, where Defendant Smith made pre-trial motions and objections and had a judgment entered against him, yet still did not seek relief from default.

 

It was not until another two months had passed before Defendant Smith filed the instant motion before the Court. His delays despite warnings from the Court show that he did not act “within a reasonable time.”

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10.  If the tentative ruling is uncontested, prevailing party is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order is to be submitted directly to Judge Jonathan E. Karesh, Department 20.

 



9:00

Line: 5

CIV535883    LUDITH O. RIOS, ET AL. VS. FEDERAL EXPRESS CORPORATION, ET AL.

 

 

LUDITH ORTIZ RIOS                      T. TROY OTUS

FEDEAL EXPRESS CORPORATION             JOSEPH C. BALESTRIERI

 

 

FEDERAL EXPRESS CORPORATION'S MOTION TO COMPEL Plaintiffs' Discovery Responses and for Sanctions

TENTATIVE RULING:

 

Defendant Federal Express Corporation’s unopposed Motion to Compel Responses to Supplemental Form Interrogatories [Set 1] and Supplemental Special Interrogatories [Set 1] is GRANTED pursuant to CCP section 2030.290.  

 

Defendant Federal Express Corporation’s unopposed Motion to Compel Responses to Supplemental Request for Production of Documents [Set 1], is GRANTED pursuant to CCP section 2031.260.

 

Plaintiffs Ludith Ortiz Rios, Milagritos Montoya Ortiz and Judith Isabel Castro Delgado shall provide verified responses without objection to the Supplemental Form Interrogatories [Set 1], Supplemental Special Interrogatories [Set 1] and the Supplemental Request for Production of Documents [Set One] within 15 days of service of the Notice of Entry of Order.

 

Defendant Federal Express Corporation’s Request for Sanctions is GRANTED pursuant to CCP §§2023010; 2030.290(c) and 2031.300(c) in the amount of $730.00.

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10.  If the tentative ruling is uncontested, prevailing party is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order is to be submitted directly to Judge Jonathan E. Karesh, Department 20.

 



9:00

Line: 6

CIV536836     CITY OF SAN JOSE, CA VS FIRST SERVE PRODUCTIONS, INC.

 

 

CITY OF SAN JOSE A                     DIPPELL, STEVEN B

FIRST SERVE PRODUCTIONS, INC           STAPLES, WILLIAM H.

 

 

CITY OF SAN JOSE’S MOTION FOR SUMMARY JUDGMENT

TENTATIVE RULING:

 

The matter is ordered off calendar.  A Notice of Settlement was filed on November 8, 2016.

 

 



9:00

Line: 7

CIV537487     RENEE AMADIO VS. REDWOOD CITY

 

 

RENEE AMADIO                           LAWRENCE E. KERN

REDWOOD CITY                           TODD H. MASTER

 

 

 

MOTION for LEAVE TO FILE AMENDMENT TO FIRST AMENDED COMPLAINT SUBSTITUTING DEFENDANTS TRUE NAME FOR FICTITIOUS NAME

TENTATIVE RULING:

 

Plaintiff Renée Amadio’s unopposed Motion to file a First Amended Complaint is GRANTED pursuant to CCP §§473(a)(1), 474,576 and California’s liberal public policy of permitting the filing of  amended pleadings. Edwards  v. Superior Court (2001) 93 Cal App 4th 172, 180. 710, 718. Plaintiff is given leave to substitute the true name of defendant CVS Pharmacy, Inc. for the fictitious name, Doe 1.

 

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: 8

CIV525919     CHARLES TANIGUCHI ETAL VS. RESTORATION HOMES LLC

 

 

CHARLES TANIGUCHI                     EUNJI CHO

SN SERVICING CORPORATION              JEFFREY B. GARDNER

 

 

PLAINTIFF’S MOTION for LEAVE TO FILE SECOND AMENDED COMPLAINT

TENTATIVE RULING:

 

The Court admonishes Defendant Restoration Homes’ counsel Jonathan Zak and Joan Spaeder-Younkin, and the and the law firm of Wright Finlay & Zak, and Defendant SN Servicing’s counsel Jeffrey Gardner, Laura Petrie, and the law firm of Barry, Gardner & Kincannon, for violating CRC Rule 3.1110(f) (requiring hard tabs between exhibits) regarding their Requests for Judicial Notice. Restoration Homes’ Request includes 16 exhibits across 220 pages. The violation places an unnecessary burden on the Court. Although the papers were fax-filed, the party bears ultimate responsibility for compliance. Future violations of Rules of Court may result in the Court’s striking the papers sua sponte. Counsel are directed to comply with all California Rules of Court and Local Rules in all actions.

 

The motion for leave to file Second Amended Complaint is granted.

 

The proposed new causes of action arise from the same general set of transactional facts as the existing pleading. The general basis for the proposed amendment is the contention that Defendants failed to defer late charges as promised under the Loan Modification Agreement. In contrast, the present pleading against SN Servicing (conversion) is based on the contention that the $22,000 amount Defendants required in order to cure default wrongfully included late charges caused by Defendant’s delaying processing payment. Both pleadings arise from late fees that were allegedly prohibited by the 2009 Loan Modification Agreement.  As to Defendant Restoration Homes, the proposed new cause of action (Civ. Code 1788.17) and the existing claim for breach of contract both arise from allegations that Defendant attempted to enforce the debt at a time when Plaintiffs allegedly were not in default.

 

Amendment will not cause undue prejudice. There is no absolute right to move for summary judgment. Defendant contends that a 60- to 90-day trial continuance might be necessary in order to allow time for Defendant to move for summary judgment. In granting leave to amend, the Court also orders that Plaintiff shall not oppose a request for trial continuance of 90 days or shorter, if the request is based solely on Defendant’s desire to move for summary judgment or summary adjudication.  This order neither guarantees nor implies that an unopposed motion for continuance will necessarily be granted, as that decision is up to the Presiding Judge.

 

Plaintiffs’ motion was not filed unreasonably late, given that just six days after Defendant filed its motion for summary adjudication, the parties stipulated to continue trial from January to May 2017.

 

Whether the statute of limitations bars any of the proposed claims should be resolved by demurrer, if any.

 

Finally, the cases cited in SN Servicing’s opposition do not preclude the amendment to drop the conversion claim. The cases hold only that a Plaintiff may not dismiss a claim after a summary judgment hearing has commenced (Melican v. Regents of Univ. of Calif. (2007) 151 Cal.App.4th 168, I76) or when a Plaintiff fails to file any opposition to summary judgment by the deadline for doing so (Cravens v. State Bd. of Equalization (1997) 52 Cal.App.4th 253.) Neither is the case here. The deadline for opposing Defendant’s motion for summary adjudication was November 22, 2016. Plaintiffs filed the present motion on November 9, 2016. Further, Plaintiffs filed a timely opposition to summary adjudication addressing the merits of the motion. The case law rationale for precluding voluntary dismissal does not apply to the present motion.

 

Plaintiffs shall file and serve their Second Amended Complaint no later than December 5, 2016. 

 

The Court’s tentative ruling for SN Servicing’s motion for summary adjudication will be that the motion is off calendar.

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10.  If the tentative ruling is uncontested, prevailing party is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order is to be submitted directly to Judge Jonathan E. Karesh, Department 20.

 


 

 

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, December 2, 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

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Line: 1

CIV528707     FLETCHER HYLER, ET AL. VS. JAMES IRIZARRY

 

 

FLETCHER HYLER                         Pro/per

JAMES IRIZARRY                         EDWARD J. RODZEWICH

 

 

Motion to Continue Trial Date

TENTATIVE RULING: 

 

Defendant Irizarry’s Motion to Continue Trial is GRANTED.  The jury trial date of January 9, 2017 is continued to April 3, 2017 at 9:00 a.m., with a new Mandatory Settlement Conference of March 24, 2017 at 9:30 a.m.  All pretrial deadlines shall now be based upon the new trial date.

 

_____________________________________________________________________

 

 

 

 

 


POSTED:  3:00 PM

 

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