January 24, 2017
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 RICHARD H. DuBOIS

Department 16

 

400 County Center, Redwood City

Courtroom 7A

 

Friday, January 20, 2017

 

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-00890     PERRY HARIRI vs. RESURGAM EQUITY INVESTMENTS, LLC, et al

 

 

PERRY HARIRII                              CRAIG A. PINEDO

RESURGAM EQUITY INVESTMENTS, LLC           JOHN F. MCINTYRE, JR.

 

 

MOTION TO SET ASIDE DEFAULTS

TENTATIVE RULING:

 

Defendants Resurgam Equity Investments, LLC’s and John Treble’s Motion to Set Aside Default is GRANTED pursuant to Code Civ. Proc. Section 473(b).  Absent compelling circumstances, the Court has a strong policy and preference for resolving cases on their merits.  Defendants filed this motion just two weeks after the entry of default.  Prior to the default being entered, counsel engaged in extensive discussions about Defendants’ response to the Complaint, which included a meet and confer email from defense counsel identifying the arguments to be raised in Defendants’ planned Demurrer and motion to strike.  After being served with the Complaint, Defendants also made efforts to release the majority of the disputed escrow funds, thereby rendering at least a substantial portion of the underlying dispute moot.  Defense counsel represents that he reasonably believed, based on his correspondence with Plaintiff’s counsel, that Defendants had at least until Dec. 2, 2016 to respond to the Complaint, and was surprised to see that Plaintiff requested their default on Nov. 30, 2016.  Defendants shall file their response to the Complaint, whether by Demurrer or otherwise, within seven (7) days of Notice of Entry of the Order on this motion.  

 

The Court has considered Plaintiff’s alternative request for an award of attorney’s fees and costs, and defense counsel’s response to that request.  The Court declines to award fees and costs on these facts. 

 

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: 2

16-CIV-01174     STEPHEN BOURQUE vs. CHRISTOPHER C. HALL

 

 

STEPHEN BOURQUE                       Pro/PER

CHRISTOPHER C. HALL                   JASON FELLNER

 

 

DEMURRER TO CROSS-COMPLAINT

TENTATIVE RULING:

 

This matter is continued to March 30, 2017 at 9:00 a.m. in the Law and Motion Department pursuant to the previous court order filed on December 22, 2016

 



9:00

Line: 3

16-CIV-01638     QAIS MOHAMMAD vs. ECC INTERNATIONAL CONSTRUCTORS, LLC, et al

 

 

QAIS MOHAMMAD                         HANI GANJI

ECC INTERNATIONAL CONSTRUCTORS, LLC   KEVIN MICHAEL PIERCE, JR

 

 

MOTION TO DISMISS ON THE GROUND OF FORUM NON CONVENIENS

TENTATIVE RULING:

 

On the Motion of Defendants ECC International Constructors LLC, Metag Insaat Ticaret A.S., and ECCI-C Metag JV (collectively “Defendants”) to Dismiss or Stay the Action, PARTIES ARE TO APPEAR. 

 

Defendants shall be prepared to address whether they are willing to agree to consent to jurisdiction in Afghanistan.  If so, the court is inclined to grant the motion, and to stay this action conditioned upon Defendants’ submission to jurisdiction in Afghanistan.  If they are not willing to so consent, the court is inclined to deny the motion.

 

In ruling on a motion based on forum non conveniens, a court must first determine whether the alternate forum is a “suitable” place for trial.  (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751.)  The moving party must show that all defendants are subject to jurisdiction in the alternate forum as well.  (American Cemwood Corp. v. American Home Assurance Co. (2001) 87 Cal.App.4th 431, 438.)  If the defendants cannot be subjected to jurisdiction in the alternative forum, the suit will be entertained in the current forum, no matter how inappropriate the forum may be.  (Stangvik, supra at 752.) 

 

In this case, Defendants seek to dismiss or stay this action on the ground that Afghanistan is a more appropriate and suitable location for Plaintiff to adjudicate his claims.  However, it does not appear that Defendants are subject to jurisdiction in Afghanistan.  Further, it is not clear from Defendants’ papers that all Defendants are willing to consent to jurisdiction in Afghanistan.

 

If the court determines that a suitable alternate forum exists, then the next step is to consider the private interests of the litigants and the interests of the public in retaining the action for trial in California.  (Stangvik, supra at 751.)  In this case, the private factors weigh in favor of having the case heard in Afghanistan as most of the potential witnesses, other than Defendants, appear to be located in Afghanistan, and the property that is the subject of the lease agreement is also located in Afghanistan.  The public interest factors also favor granting this motion, as the only connection to California appears to be that Defendant ECCI-C Metag JV and ECC International Constructors, LLC are alleged to be based in California.  Plaintiff however, is a resident of Afghanistan.  Further, it appears that a jury of this court would be required to apply Afghanistan law, not California law. 

 

If the court were to grant the motion, that order would be conditioned upon Defendants’ consent to submit to jurisdiction in Afghanistan.  (See Stangvik, supra at 750 and fn.2 [court granted the motion and stayed the action subject to seven conditions with which defendants agreed to comply, including that defendants submit to jurisdiction in Sweden and Norway].)  The order would provide that this action is STAYED pending resolution of Plaintiff’s claims in Afghanistan, or until further order of the court

 


 

 

 


9:00

Line: 4

16-CLJ-01277     DISCOVER BANK vs. ERNA A OLLER-STRAUCH

 

 

DISCOVER BANK                         MARTIN HOFFMAN

ERNA A OLLER-STRAUCH

 

 

MOTION FOR JUDGMENT ON THE PLEADINGS

TENTATIVE RULING:

 

Plaintiff Discover Bank’s unopposed Motion for Judgment on the Pleadings is GRANTED. Under CCP § 438(c)(1)(A), a motion for judgment on the pleadings can be made where the complaint states sufficient facts to constitute a cause of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint.  Here, the Defendant’s answer does not contain a denial but rather, defendant's answer contains an admission that all of the allegations of Plaintiff’s unverified complaint are true. Judgment for plaintiff in the principal amount of $7,177.46 and court costs pursuant to a memorandum of costs.

 

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

CIV503270     FIA CARD SERVICES VS. LIDIA GRONSKY

 

 

FIA CARD SERVICES                     FLINT C. ZIDE

LIDIA GRONSKY                         SAM DEHBOZORGI

 

 

MOTION TO SET ASIDE DEFAULT/JUDGMENT

TENTATIVE RULING:

 

The Motion to Vacate the Default and Default Judgment is GRANTED on the grounds of extrinsic fraud.  Def has offered evidence sufficient to show that service was not properly effected.  For purposes of a motion seeking relief from a default judgment, extrinsic fraud is given a very broad meaning which tends to encompass all circumstances that deprive an adversary of fair notice of hearing whether or not those circumstances would qualify as fraudulent in the strict sense.  Thus, a false recital of service although not deliberate is treated as extrinsic fraud for purposes of relief from default.  Munoz v. Lopez (1969) 275 Cal.App.2d 178. 

 

The Motion to Dismiss this Action is also GRANTED pursuant to CCP Section 583.250(2).  Service of the summons and complaint was not effected within three years of commencement of the action.  Any outstanding writs of execution are recalled.  However, def’s request for the return of any levied property is denied without prejudiced.  Def has not established that there is any such property. 

 

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 Richard H. DuBois, Department 16.



9:00

LineS: 6 & 7

CIV524677     STANLEY BLUMENFELD, ET AL. VS. DAVID BELLEVILLE

 

 

STANLEY BLUMENFELD                    D.D. HUGHMANICK

DAVID BELLEVILLE                      SIMON OFFORD

 

 

6. MOTION TO QUASH

TENTATIVE RULING:

 

This matter is dropped from calendar as the court received a notice of settlement.

 

7. MOTION

TENTATIVE RULING:

 

This matter is dropped from calendar as the court received a notice of settlement.

 


 


9:00

Line: 8

CIV524843     ELIZABETH KARNAZES VS. JOHN FERRY, ET AL.

 

 

ELIZABETH KARNAZES                    Pro/PER

JOHN FERRY                            RANDOLPH S. HICKS

 

 

MOTION TO COMPEL DISCOVERY RESPONSES AND FOR MONETARY SANCTIONS BY JOHN FERRY AND KIRSTEN FERRY

TENTATIVE RULING:

 

The motion is GRANTED.  Plaintiff shall provide verified responses to the discovery, without objection, within 14 days of service of notice of the court’s order.   

 

In this case, although the ruling is that §425.16(g) does not stay discovery as to the complaint, plt’s reliance on the statutory language was not unreasonable.  The 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.

 



9:00

Line: 9

CIV535677     ERICA PRADO, ET AL. VS. POLICE DEPARTMENT OF

                  EAST PALO ALTO, ET AL.

 

 

POLICE DEPARTMENT OF EAST PALO ALTO   MATTHEW J. OREBIC

ERICA PRADO                           CHRISTINE L. GARCIA

 

 

MOTION FOR SUMMARY JUDGMENT/ADJUDICATION OF ISSUES

TENTATIVE RULING:

 

The Court rules on Defendants’ objections as follows:

 

Declaration of Erica Prado: Overruled as to Objection 1; sustained as to Objections 2 through 7.

 

Declaration of Jaslyn Neri Duenas: Overruled as to Objection 8 through 11.

 

Declaration of Natalia Fonseca: Overruled as to Objection 12; sustained as to 13 through 15.

 

Declaration of Pedro Manuel Fonseca: Overruled as to Objection 16, 18, 20; sustained as to 17, 19, 21, and 22.

 

THE MOTION FOR SUMMARY JUDGMENT IS GRANTED. The undisputed facts demonstrate that Plaintiff’s complaint and all causes of action have no merit against the moving defendants.

 

The first cause of action has no merit (Issue 1).  Hot pursuit justified Defendant Warford’s entry onto 875 Schembri Lane. The Declaration of Warford sets forth a detailed scenario supporting the existence of a hot pursuit.  (Declaration of Warford, para. 1-19, and Exhibit A.) He saw the fugitive run to the end of Tuscany Court and disappear into the property at the end of the dead end, which was the back yard of 2261 Clarke. It was reasonable, therefore, to believe that the fugitive was on that property.  Defendant Warford entered the 2261 Clarke back yard but did not find him there. He then determined that the fugitive did not exit through the front of 2261 Clarke or via the other side on Schembri Lane. (Declaration of Warford para. 16). Therefore, the only remaining way out was the adjacent back yard of 875 Schembri Lane. (Id.) At the time Warford entered 875 Schembri, he was still looking for the fugitive. Defendant, therefore establishes a prima facie case that he was still in hot pursuit of the fugitive. The burden shifts to Plaintiff to raise a triable issue of fact by presenting controverting evidence.

 

Plaintiff presents no evidence on the issue of hot pursuit. She argues only that the hot pursuit had ended. (Oppos. at 3:24-27, 4:1-2, 6:26.) She presents no evidence to support the contention that the hot pursuit was over. Plaintiff also argues that Warford never actually saw anyone jump into 875 Schembri. (Id.) However, she cites no authority holding that an officer must see the fugitive in order to justify entry. Plaintiff attempts to dispute material facts 2, 3, and 6 through 30, relating to the issue of hot pursuit. Plaintiff cites paragraphs 11, 14, and 17 of the Declaration of Prado. As set forth above, the Court sustains Defendants’ objections to those paragraphs.  Plaintiff, therefore, offers no admissible evidence to contradict any material fact on the issue of hot pursuit. 

 

Other officers told Warford that the fugitive had not exited 2261 Clarke via Clarke Ave. or Schembri Lane, and Warford did not see the fugitive in the yard of 2261 Clarke. His conclusion that the fugitive might have exited through the only remaining route (875 Schembri) was reasonable. Under the undisputed material facts, Defendant Warford was in hot pursuit of the fugitive at the time he entered 875 Schembri Lane. His entry was not a 4th Amendment violation.

 

The same facts relating to the hot pursuit exception also support the “need to prevent escape.” Defendant Warford determined that the fugitive had only one way out of 2261 Clarke Avenue, and that was via the adjacent yard at 875 Schembri Lane. Defendant Warford’s evidence establishes a prima facie case that entry onto that property was reasonable to prevent the fugitive’s escape. Plaintiff presents no controverting evidence to raise any question of material fact about whether the exception existed.

 

Finally, the first cause of action is barred by qualified immunity. Although Defendant Warford did not find the fugitive in Plaintiff’s yard, qualified immunity protects his actions unless he was “plainly incompetent” or “knowingly violated the law.” (Malley v. Briggs (1986) 475 U.S. 335, 341.) If “officers of reasonable competence could disagree on the issue, immunity should be recognized.” (Id.)  Warford concluded that the fugitive hopped the fence into 875 Schembri Lane, since no other way out was apparent. At the very least, reasonable officers could disagree with Defendant Warford’s conclusion. It cannot be said that Defendant Warford was “plainly incompetent” in reaching that conclusion, even if he were wrong. Further, Defendant presents evidence that his actions were not a “knowing violation of law,” and Plaintiff presents no controverting evidence.   Under the undisputed material facts, Defendant Warford is protected by qualified immunity against Plaintiff’s claim for wrongful entry.

 

The first cause of action also has no merit to the claim that Defendants seized property. An animal is property, and killing a person’s animal can constitute a seizure of property. However, Defendant Warford neither killed nor took permanent possession of Plaintiff’s dog. Plaintiff’s Opposition offers no evidence or law to raise a triable issue of fact about whether wounding a pet constitutes a seizure of property under the 4th Amendment. Plaintiff’s claim that Defendant Warford’s shooting her dog non-lethally violated her 4th Amendment rights has not merit.

 

The second through ninth causes of action have no merit. The motion argues three grounds as these claims: “[The claim] does not state a claim, fails for lack of evidence, and is barred by the immunity under Government Code section 821.6.” (See Notice of Motion at 2:11 – 3:1.)

 

Failure to state a cause of action is a ground for demurrer, not summary judgment. It pertains to whether the pleading is sufficient, whereas summary judgment pertains to whether evidence establishes that the claim has no merit. Defendant’s moving Memorandum of Points and Authorities offers no argument in support of the “failure to state cause of action” argument. The motion, to the extent it is based on failure to state a cause of action, fails.

 

Defendants next argue that the second through ninth causes of action fail for “lack of evidence.” (Moving P&A at 10:14 – 13:17.)  It is insufficient to merely argue that the plaintiff has no evidence. The motion must affirmatively establish that the plaintiff “does not possess and cannot reasonably obtain, needed evidence.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.) “Lack of evidence” is shown through the plaintiff’s own pleading admissions or discovery admissions that no evidence exists. (See Villa v. McFerren (1995) 35 Cal.App.4th 733, 749.) Another way is through factually devoid discovery responses. (See Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590.)  Defendants fail to meet this initial burden.

 

The motion offers no evidence about whether Plaintiff has any evidence, or can reasonably obtain any evidence, to support her claims. Rather, the motion merely argues in favor of Defendant’s affirmative defenses. Although the defenses might have merit, Defendants’ specified ground is that the claims “fail for lack of evidence.” (See Notice of Motion at 2:11 – 3:1.) Since defendant offers no evidence to show that Plaintiff lacks evidence “does not possess and cannot reasonably obtain, needed evidence,” the argument that “there is no evidence” fails to support the motion. The motion as to the second through ninth causes of action, to the extent it is based on lack of evidence, fails.

 

The motion as to the second through ninth causes of action is granted on the basis of immunity. When an employee has a specific statutory immunity, or has a common law defense, the employer public entity is also not liable. (Gov. Code sect. 815(b) and 815.2.)  “A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.” (Gov’t Code Sect. 821.6.) The immunity applies to pre-arrest law enforcement actions. (Baughman v. State of California (1995) 38 Cal.App.4th 182, 193.)  Defendant Warford had initiated a criminal proceeding when he began pursuing a fugitive who was wanted on a no-bail felony arrest warrant. Section 821.6 immunizes Defendant from liability for injury caused by his actions in that pursuit. Section 821.6 bars plaintiff’s second through ninth causes of action. 

 

Since the first through ninth causes of action have no merit, Issues 10 through 13 are moot.

  

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 Richard H. DuBois, Department 16.

 

 



9:00

LineS: 10 - 13

CIV538560     MICHELLE NGUYEN VS. VINCENT PLUVINAGE

 

 

MICHELLE NGUYEN                       REBECCAH B. MILLER

VINCENT PLUVINAGE                     ronald f. lopez

 

 

 

10. MOTION TO COMPEL FURTHER ANSWERS TO REQUESTS FOR ADMISSIONS AND SANCTIONS

TENTATIVE RULING:

 

Plaintiff’s Motion is continued by stipulation to a date to be agreed upon between the parties and the court. 

 

 

11. MOTION TO COMPEL ANSWERS AND FURTHER ANSWERS TO FORM INTERROGATORIES AND FOR SANCTIONS

TENTATIVE RULING:

 

Plaintiff’s Motion is continued by stipulation to a date to be agreed upon between the parties and the court. 

 

 

12. MOTION TO COMPEL FURTHER RESPONSES AND PRODUCTION TO REQUESTS FOR PRODUCTION  

TENTATIVE RULING:

 

 

Plaintiff’s Motion to Compel Further Responses and Production to Requests for Production and for Sanctions is GRANTED. Defendant is ordered to produce supplemental responses to Plaintiff’s First Request for Production of Documents without any objections and in compliance with Code of Civil Procedure sections 2031.220 and 2031.230 (as applicable), which state:

 

“A statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.” (CCP sec. 2031.220.)

 

“A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” (CCP sec. 2031.230.)

 

With regard to the dispute over production of bank records, Defendant is not required to seek documents from entities that have already been subpoenaed to produce documents. Defendant is, however, compelled to either: (a) identify for the Plaintiff all other banks and financial institutions that may hold responsive documents, if any, or (b) seek his records from those other banks and financial institutions and produce responsive documents to the Plaintiff.

 

The Plaintiff’s request for sanctions against Defendant is GRANTED and Defendant is ORDERED to pay Plaintiff $500 for attorney’s fees and costs of this motion. Without filing this motion, Plaintiff never would have received supplemental responses or documents from Defendant.

 

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.

 

 

13. MOTION TO COMPEL FURTHER ANSWERS TO SPECIALLY PREPARED INTERROGATORIES AND FOR SANCTIONS

TENTATIVE RULING:

 

Plaintiff’s Motion is continued by stipulation to a date to be agreed upon between the parties and the court. 

 

 



9:00

Line: 14

CLJ505782     ANGELA REAL VS. CUIAB BOARD

 

 

ANGELA REAL                           Pro/PER

CUIAB BOARD                           JULIET B. HALEY

 

 

MOTION TO DISMISS

TENTATIVE RULING:

 

Respondent California Unemployment Insurance Appeals Board’s Motion to Dismiss is GRANTED pursuant to CCP §583.360 based on the Petitioner’s failure to bring this action to trial within five years of the may 25, 2011 filing date.

 

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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