April 25, 2015
Law & Motions 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 JOSEPH C. SCOTT

Department 25

 

400 County Center, Redwood City

Courtroom 2G

 

Friday, April 24, 2015

 

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.  

 

All Counsel are reminded to comply with California Rule of Court 3.1110.  The Court will expect all exhibits to be tabbed accordingly. 

 

    Case                  Title / Nature of Case

9:00

1

CIV 519758       APPLIED MEDICAL CORP. VS T. PETER THOMAS ETAL

 

 

APPLIED MEDICAL CORPORATION           RICHARD J GRABOWSKI

T. PETER THOMAS                       SUSAN J HARRIMAN

 

 

MOTION FOR LEAVE TO AMEND SECOND AMENDED COMPLAINT

 

 

·         The Motion by Plaintiff Applied Medical Corp. for Leave to Amend the Second Amended Complaint is DENIED. Plaintiff has unreasonably delayed adding these individuals and IVM IV as defendants to an action that has been pending for 2 ½ years. Plaintiff has known the identities of these individuals and their roles as general partners of IVM IV since the original complaint was filed in 2012.

 

 

DEMURRER TO SECOND Amended COMPLAINT BY T. PETER THOMAS,ET AL.

 

 

·         The Demurrer by Defendants Mary Jane Elmore, Norm Fogelsong, Geoff Yang and Sam Colella as to the Second Amended Complaint is SUSTAINED without leave to amend. The 2nd amended complaint contains no substantive allegations directed against any of these demurring defendants. Pursuant to CCP §474, a plaintiff may name fictitious defendants or Does. However, the complaint must state a cause of action against each Doe defendant. Fireman’s Fund Ins. Co. v. Sparks Const., Inc. (2004) 114 Cal App 4th 1135, 1143.  Here, no cause of action has been alleged against any fictitious defendant. Pacific Coast Refrigeration, Inc v. Badger (1975) 52 Cal App 3d 233, 249. The SAC contains no allegation that purport to show how, why, or in what manner any fictitious defendant should be charged. None of the 8 causes of action are against a Doe defendant. See SAC at ¶¶11-201.

 

·         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 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 Joseph C. Scott, Department 25.

 

 

_____________________________________________________________________


 

9:00

2

CIV 521400       MARNA SKAAR VS. EMPORIO GROUP, INC ET AL

 

 

MARNA SKAAR                           J. ANDREW LAWSON

EMPORIO GROUP, INC.                   BEN HAMBURG

 

 

MOTION TO DISQUALIFY DEFENDANT MICHAEL ROBLES' EXPERT WITNESS AND COUNSEL BY MARNA SKAAR

 

 

·         The motion is DENIED in its entirety. The Declaration of Plaintiff Skaar and the Declaration of Harold Justman do not support a finding that Plaintiff communicated any confidential matters to Mr. Justman in March 2012.    

 

 

·         If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Defendant Michael Robles shall 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 written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court. 

 

 

 

_____________________________________________________________________


9:00

3

CIV 522176       APPLIED UNDERWRITERS, INC. VS. ARTISAN BUILDERS ETAL

 

 

APPLIED UNDERWRITERS, INC.            MICHAEL K. PERKINS

ARTISAN BUILDERS                      BETTY J. LEVINE

 

 

MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION ON CROSS COMPLAINT BY ARTISAN BUILDERS, ET AL.

 

 

·         Defendants / Cross-Complainants ARTISAN BUILDERS and RICHARD POWELL (collectively “Artisan”)’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication is DENIED in its entirety, on the ground that there are triable issues of material fact with respect to the following: 

 

A) Whether the SolutionOne Agreement fails to comply with Insurance Code §§11657, 11659, and 11660 and Administrative Code §§ 2252-2268 (UMF Nos. 1, 2, 8, 9, 20, 21, 28, 29, 40, 41, 52, 53, 76, 77, 84, 85, 92, 93, 103, and 104);

 

B) Whether the terms of the SolutionOne Agreement were improperly used to deny coverage under the Policy to Mr. Silva (UMF No. 6, 13, 25, 33, 38, 45, 50, 57, 81, 89, 97, 101, and 109); and

 

C) Whether the CIC Policy contains restrictions or is unlimited (UMF Nos. 16 and 35). 

 

·         Artisan’s Request for Judicial Notice, attached to its moving papers, is GRANTED as to Exhibit A only.  The second Request for Judicial Notice included in the reply papers is GRANTED as to the Reporter’s Transcript of June 5, 2013, also marked as Exhibit A.  Artisan’s Evidentiary Objections are OVERRULED as to Objection Nos. 1-29. 

 

·         AUI / CIC’s Request for Judicial Notice is GRANTED as to Exhibits A, B, and C. 

 

·         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 Joseph C. Scott, Department 25.

 

 

 

MOTION FOR SUMMARY ADJUDICATION OF ALL CAUSES OF ACTION IN THE SECOND AMENDED CROSS-COMPLAINT BY APPLIED UNDERWRITERS, INC.

 

 

 

Plaintiffs / Cross-Defendants APPLIED UNDERWRITERS, INC. (“AUI”) and CALIFORNIA INSURANCE COMPANY (“CIC”)’s Motion for Summary Adjudication of the Second Amended Cross-Complaint is GRANTED IN PART and DENIED IN PART, as follows:

 

  • GRANTED as to Defendants / Cross-Complainants ARTISAN BUILDERS and RICHARD POWELL (collectively “Artisan”)’s Third Cause of Action for Fraudulent Concealment and Conspiracy. 

 

The essential elements of a cause of action for fraudulent concealment are (a) misrepresentation; (b) knowledge of falsity (or scienter); (c) intent to defraud; (d) justifiable reliance; and (e) resulting damage. [ Lazar v. Superior Court (1996) 12 Cal.4th 631, 638].  AUI / CIC have presented evidence demonstrating lack of knowledge of falsity at the time the contracts with Artisan were entered into, and Artisan does not submit evidence sufficient to create a triable issue of material fact.  (See Reply Separate Statement, UMF Nos. 1-7.)   

 

The claim for conspiracy likewise fails because there is no triable issue that AUI and CIC lacked actual knowledge that the SolutionOne Agreement was null, void, or illegal.  The essential elements of a claim for civil conspiracy are (1) the formation and operation of the conspiracy, (2) wrongful conduct in furtherance of the conspiracy, and (3) damages arising from the wrongful conduct.  [Kidron v. Movie Acquisitions Corp. (1996) 40 Cal.App.4th 1571, 1581].  The Kidron court explained that all co-conspirators must have “actual knowledge” that the conduct is unlawful at the time the conspiracy is carried out.  [Id. at 1582]. 

 

  • DENIED as to the remainder of the motion by AUI and CIC, on the ground that the following triable issues of material fact exist:

 

    • Whether the CIC Policy required Artisan to notify AUI / CIC immediately when any new employees were hired or current employees were terminated.  (UMF Nos. 32, 41.) 

 

    • Whether the terms of the SolutionOne Agreement were improperly used to deny coverage under the Policy.  (Artisan’s Additional Material Facts, AMF No. 80.) 

 

  • AUI and CIC’s Request for Judicial Notice is GRANTED as to Exhibits A, B, and C.  AUI / CIC’s Evidentiary Objections are SUSTAINED as to Objeciton Nos. 3, 4, 5-10, 12, and 15-20, and OVERRULED as to the remainder.

 

  • Artisan’s Request for Judicial Notice is GRANTED as to Exhibit A only.  Artisan’s Evidentiary Objections are OVERRULED as to Objection Nos. 1-15. 

 

  • 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 Joseph C. Scott, Department 25.

 

 

 

_____________________________________________________________________


9:00

4

CIV 522416       TRADEWINDS INTERNATIONAL ENTERPRISES, INC. VS.

                   MIRACLEBEAM PRODUCTS, ET AL.

 

 

TRADEWINDS INTERNATIONAL ENTERPRISES, INC. ARNOLD M. WOODS

MIRACLEBEAM PRODUCTS                  JONATHAN D. NICOL

 

 

DEMURRER TO SECOND Amended COMPLAINT BY KAI CLARKE

 

 

  • Defendant's request for judicial notice is GRANTED mas to exhibits A and B and denied as to exhibits C-E.  These statements in the e-mail chain are not “statements of the plaintiff or his agent which are inconsistent with the allegations of the pleading before the court.” Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal. App. 3d 593, 604-05.

 

  • Defendant's general and special demurrers to the 3rd cause of action for fraud-intentional misrepresentation, 4th cause of action for fraud-negligent misrepresentation, 5th cause of action for fraud-concealment, and 6th cause of action for conversion are OVERRULED.

 

  • Defendant's general and special demurrers to the 7th cause of action for restitution are sustained with leave to amend.  Although plaintiff may plead inconsistent claims that allege both the existence of an enforceable agreement and the absence of an enforceable agreement; in this matter, Tradewinds has alleged the existence of an enforceable agreement in the 1st cause of action for breach of contract, but has not denied the existence or enforceability of that agreement in its cause of action for restitution.[ Klein v. Chevron U.S.A., Inc. (2012) 202 Cal. App. 4th 1342, 1389-90].  Plaintiff is also given leave to amend the caption page of the complaint to correctly identify the 7th cause of action.

 

  • Moving attorney is directed to prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and to provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court. The order is to be submitted directly to Judge Joseph C Scott, Department 25.

 

 

 

_____________________________________________________________________


9:00

5

CIV 524102       BETH NIEVERA SOLIMAN VS. MARIA ESTELLA NIEVERA, ET AL

 

 

BETH NIEVERA SOLIMAN                  ARLO GARCIA URIARTE

MARIA ESTELA NIEVERA

 

 

MOTION TO QUASH DEFECTIVE SERVICE OF SUMMONS AND COMPLAINT BY CABALEN CORPORATION

 

 

·         The Motion to Quash is GRANTED. Plaintiff has not offered evidence to establish that defendant was served in compliance with California or Philippine Law. 

 

·         CCP §416.10 states that a summons may be served on a corporation by delivering a copy to any of the following: a) the person designated as agent for service of process as provided in the Corporations Code or b) the president, chief executive officer or other head of the corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a controller or chief financial officer, a general manager, or a person authorized by the corporation to receive service of process.  The evidence does not support plaintiff’s conclusion that Alex Reyes was authorized to accept service on defendant’s behalf. 

 

·         Under Rule 14 §13 of the Philippine Rules of Civil Procedure, service on a public corporation may be made effected on its executive head, or such other officer or officers as the law or the court may direct.  Plaintiff has not shown that defendant is a public corporation within the meaning of the Rule. 

 

·         Rule 14, §11 applies to domestic corporations.  It provides that service may be made on the president, general manager, corporate secretary, treasurer or in-house counsel.  The evidence does not show that Alex Reyes held any of these positions.

 

·         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 Joseph C. Scott, Department 25.

 

 

_____________________________________________________________________


9:00

6

CIV 524598       SIMON DAVID AVIEL VS. SCOTT DUCHIN, INC., ET AL

 

 

SIMON DAVID AVIEL                     BRUCE M. LUBARSKY

CHRISTINA WILLIAMSON                  CRAIG HARRIS COLLINS

 

 

MOTION TO FILE SECOND AMENDED CROSS-COMPLAINT FOR BREACH OF CONTRACT, FRAUD, FRAUDULENT CONCEALMENT AND FRAUDULENT MISREPRESENTATION BY SCOTT DUCHIN

 

 

  • The Motion for Leave to File a Second Amended Cross-complaint brought by Scott Duchin is GRANTED.  A Second Amended Cross-Complaint, consistent with the proposed Second Amended Cross-complaint, shall be filed and served by May 8, 2015.

 

  • The requested conditions sought by Cross-defendants are DENIED. Requests for trial continuances are properly brought before the Presiding Judge. When the Second Amended Cross-complaint is filed it supersedes the First Amended Cross-complaint, which then has no effect. The Court is not inclined to deem a motion pertaining to the First Amended Cross-complaint as being against the Second Amended Cross-complaint, which was not the operative pleading when the motion was filed.

 

  • 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 Joseph C. Scott, Department 25.

 

 

_____________________________________________________________________


9:00

7

CIV 527140       MICHAEL CHOI VS. KRISTINE BOYD

 

 

MICHAEL CHOI                          SUSAN KANG GORDON

KRISTINE BOYD                         MICHAEL F. BROWN

 

 

HEARING MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT.

 

 

  • Defendant Boyd’s Request for Judicial Notice is granted pursuant to Evidence Code §452(d)(h).

 

  • Plaintiff Michael Choi’s Motion to File a First Amended Complaint is GRANTED pursuant to CCP §473 and the liberal public policy of permitting amendments to complaints. Atkinson v. Elk Corp. (2003) 109 Cal App 4th 739, 761.  Plaintiff shall file and serve a First Amended Complaint consistent  with the proposed First Amended Complaint no later than May 8, 2015.

 

  • 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 Joseph C. Scott, Department 25.

 

 

 

_____________________________________________________________________


9:00

8

CIV 529460       MICHELE MORECI, ET AL. VS. LOUIS CIAPPONI

 

 

JONATHAN JASON MORECI                 TYSON REDENBARGER

LOUIS CIAPPONI                        KRISTIN A. MCLAUGHLIN

 

 

MOTION TO CONSOLIDATE DEC. OF TYSON REDENBARGER BY JONATHAN JASON MORECI

 

 

  • Plaintiffs’ Motion to Consolidate is DENIED. The cases do not have sufficient common factual issues, or common legal issues to warrant consolidation. Consolidation in this case would not enhance trial court efficiency, as it would not save time nor avoid duplication in the presentation of evidence.

 

  • 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

9

CIV 529532       MARK ANTHONY KOSTA, ET AL. VS. LOUIS CIAPPONI

 

 

MARK ANTHONY KOSTA                    MARK HOOSHMAND

LOUIS CIAPPONI                        KRISTIN A. MCLAUGHLIN

 

 

HEARING MOTION TO CONSOLIDATE CIV 529532 WITH CIV 529460.

 

 

  • Plaintiffs’ Motion to Consolidate is DENIED. The cases do not have sufficient common factual issues, or common legal issues to warrant consolidation. Consolidation in this case would not enhance trial court efficiency, as it would not save time nor avoid duplication in the presentation of evidence.

 

  • 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.

 

 

______________________________________________________________________


 

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 GEORGE A. MIRAM

Department 28

 

400 County Center, Redwood City

Courtroom 2F

 

Friday, April 24, 2015

 

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

 you must call (650) 261-5128 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

1

CIV 501548       CHRISTINA M. SAGONOWSKY, ET AL. VS. CURTIS KEKOA,

                   JR., ET AL.

 

 

CHRISTINA M SAGONOWSKY                MICHAEL PATRICK ROONEY

CURTIS KEKOA JR                       ALAN L. MARTINI

 

 

MOTION TO CONTINUE THE TRIAL BY CURTIS KEKOA, JR., ET AL.

 

 

·         DENIED without prejudice to a motion to stay this matter pending the outcome of the appellate proceedings.  The showing of good cause is inadequate under the totality of circumstances before the court.

 

 

_____________________________________________________________________

 

 

 

 

 


POSTED:  3:00 PM

© 2015 Superior Court of San Mateo County