September 29, 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, September 30, 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-00651     BART WILLOUGHBY vs. CITY OF PACIFICA CALIFORNIA,

                   EMERGENCY PREPAREDNESS & SAFETY COMMISSION

 

 

BART WILLOUGHBY                       Pro/PER

CITY OF PACIFICA CALIFORNIA,         

EMERGENCY PREPAREDNESS & SAFETY COMMISSION

 

 

HEARING TO DEMURRER

TENTATIVE RULING:

 

The demurrer of Respondents City of Pacifica and California Emergency Preparedness & Safety Commission is OVERRULED. The Respondents assert in their Memorandum of Points and Authorities in Support of Demurrer that the Commission’s final decision was mailed to Petitioner Willoughby on April 27, 2016.  However, the evidence Respondents provide for this assertion (Petition at p. 11 and Request for Judicial Notice (RJN) p. 139) does not support this conclusion. 

 

At page 11 of the Petition, the Petitioner states that the written decision was mailed on April 27, 2016.  However, the Petitioner does not state that the Petition was mailed to him.  RJN p. 139 does not list Petitioner Willoughby as one of the people to whom the decision was mailed. While it is possible that Mr. Willoughby received notice in the mail as a “Doe 1,” the Court does not have sufficient information to conclude this.

 

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: 2

16CLJ00034     MONIQUE DAVENPORT vs. HAVEN LEGAL SERVICES, et al.

 

 

MONIQUE DAVENPORT                       Pro/PER    

HAVEN LEGAL SERVICES

    

 

HEARING ON DEMURRER

TENTATIVE RULING:

 

On August 16, 2016 and again on August 30, 2016, this court issued a tentative ruling that stated that defendant Raquel Mendez’s demurrer to the complaint was not in compliance with the requirements of Code of Civil Procedure §430.41(a)(3). The demurrer was continued to give Ms. Mendez an opportunity to file the declaration required by CCP §430.41(a)(3). The defendant was ordered to file the required declaration not less than seven [7] days prior to the hearing. The tentative ruling stated that if the declaration was not filed, the demurrer would be stricken by the court as procedurally improper.

 

Ms. Mendez has not filed the required declaration and the court now strikes her demurrer as procedurally improper.

 

Defendants must file an answer within ten days of service of the notice of entry of order.

 

Plaintiff 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 Jonathan E. Karesh, Department 20. 

 



9:00

Line: 3

CIV512807     VENERANDA ABAD, ET AL. VS. WESTERN PACIFIC HOUSING, INC.

 

 

mary kossick                          KEITH WEILMAN

WESTERN PACIFIC HOUSING, INC.         AMY L. FOSCALINA

 

 

MOTION FOR JUDGMENT ON THE PLEADINGS

TENTATIVE RULING:

 

The Motion for Judgment on the Pleadings against the Ninth Affirmative Defense is granted, to the extent it pertains to the third cause of action.

 

To state an affirmative defense of the statute of limitations, an Answer must cite the section of the Code of Civil Procedure relied upon “and subdivision thereof, if it is so divided.” (Code of Civ. Proc. Sect. 458.) Defendant’s statute of limitations defense pleads sections 337, 337.1, 337.15, 338, 339, 340, and 343 of the Code of Civil Procedure. None of these cited code sections is an affirmative defense that pertains to the Third Cause of Action, which is for violation of building standards as set forth in Civil Code section 896.

 

Sections 337.1 and 337.15 are rendered inapplicable by Civil Code section 941, subdivision (d). Section 337, 338, 339, 340, and 343 do not apply to a claim under Civil Code section 896. Further, Sections 337, 338 339 and 340 contain subdivisions, and the affirmative defense fails to cite them. (Davenport v. Stratton (1944) 24 Cal. 2d 232, 246-47.)  Defendant cites no authority to support its contention that Davenport does not reflect modern pleading. (Opposition at 4:5-15.)  Current authorities disagree. See Weil & Brown, Civil Procedure Before Trial (Rutter Group 2016) Para. 6:462.1; Martin v. Van Bergen (2012)  209 Cal.App.4th 84, 91 (defense must plead the specific section “and subdivision”).)

 

The Third Cause of Action is based on Civil Code section 896, which contains several limitations periods. Defendant’s contention that it cited section 896 (Opposition at 4:1-3) is incorrect.

 

For failure to allege any applicable statute supporting a statute of limitations defense, the Ninth affirmative defense fails to plead a defense against the Third Cause of Action. The motion is granted as to the Ninth Affirmative Defense as it applies to the Third Cause of Action.

 

Leave to amend is granted. Plaintiff admits that potential statutes of limitations are set forth in Civil Code section 896. Plaintiff’s contention of prejudice (Moving P&A at 7:6-9) is unpersuasive, since the limitations periods under section 896 run from “close of escrow.” The close of escrow date and the filing of Plaintiff’s complaint are fixed dates. Plaintiff makes no showing of additional discovery needed.

 

Defendant is granted leave of court until October 7, 2016, to file an amended answer that addresses only the defects of the Ninth Affirmative Defense.

 

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: 4

CIV530285     RENEE GLOVER CHANTLER VS. FARIN NAMDARAN YEGANEH

 

 

RENEE GLOVER CHANTLER                  AMANDA FITZSIMMONS

FARIN NAMDARAN YEGANEH                 WILLIAM E. GILG

 

 

MOTION

TENTATIVE RULING:

 

The motion is ordered off-calendar as it has already been continued to October 7, 2016.

 



9:00

Line: 5

CIV533939     KENNETH FLOOD VS. ABBOT VASCULAR, INC., ET AL.

 

 

KENNETH FLOOD                         AARON B. MARKOWITZ

ABBOT VASCULAR, INC.                  SCOTT K. DAUSHER

 

 

MOTION FOR SUMMARY ADJUDICATION OF ISSUES

TENTATIVE RULING:

 

The motion is ordered off calendar because a notice of settlement was filed on September 15, 2016.

 



9:00

Line: 6

CIV536166     A1 SOLAR POWER, ET AL. VS. PATRICIA GAMMAGE, ET AL.

 

 

A1 SOLAR POWER, INC.                  LINDA D. LUCERO

PATRICIA GAMMAGE                      SCOTT MAURER

 

MOTION FOR AN ORDER COMPELLING RESPONSES TO INSPECTION DEMANDS; AND AWARDING MONETARY SANCTIONS

TENTATIVE RULING:

 

Off calendar at the request of the moving party.

 



9:00

Line: 7

CIV537136     JENNIFER ZUCCA VS. GENERAL MOTORS LLC

 

 

JENNIFER ZUCCA                        STEVE MIKHOV

GENERAL MOTORS LLC                    AMY L. SJOLANDER

 

 

MOTION TO COMPEL FURTHER DISCOVERY RESPONSES FROM DEFENDANT AND REQUEST FOR SANCTIONS - FIRST SET OF REQUEST FOR PRODUCTION OF DOCUMENTS

TENTATIVE RULING:

 

Plaintiff JENNIFER ZUCCA’s Motion to Compel Defendant GENERAL MOTORS, LLC’s Further Responses to Request for Production of Documents (Set One) is GRANTED IN PART.  Defendant is ordered to serve full and complete, verified responses to Request Nos. 6, 9-11, 14, 17-20, 30-33. 

 

With regard to Request No. 35, Defendant must produce its warranty claims policy and procedure manual(s).  The court denies Plaintiff’s request for “any and all documents” related to the warranty claims policy and procedure manual(s) because it is overbroad and unduly burdensome. 

 

The responses must comply with the requirements of Code Civ. Proc. Sec. 2031.210, 2031.220, 2031.230, 2031.240, and 2031.250 including, but not limited to, the production of a privilege log for all documents being withheld on grounds of attorney-client privilege or attorney work product.  The responses must be served no later than fifteen days from service of the notice of entry of order.

 

Plaintiff’s request for monetary sanctions is GRANTED in the amount of $1,460.00, which must be paid no later than October 14, 2016.

 

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 Jonathan E. Karesh, Department 20. 

 



9:00

LineS: 8 - 11

CIV537937     CYNTHIA HOLLOWAY VS. GILEAD SCIENCES, INC., ET AL.

 

 

CYTHINA HOLLOWAY                      KYRA A. SUBBOTIN

GILEAD SCIENCES, INC.                 JEFFERY D. WOHL

 

 

8. MOTION TO SEAL CONFIDENTIAL DOCUMENTS

 

The Motion is ordered off-calendar because the case has been assigned for all purposes to the Hon. Steven L. Dylina, Department 7.

 

9. MOTION TO DISQUALIFY COUNSEL

TENTATIVE RULING:

 

The Motion is ordered off-calendar because the case has been assigned for all purposes to the Hon. Steven L. Dylina, Department 7.

 

10. MOTION TO QUASH SUBPOENA TO KRISTIN PEDERSEN, ESQ.  

TENTATIVE RULING:

 

The Motion is ordered off-calendar because the case has been assigned for all purposes to the Hon. Steven L. Dylina, Department 7.

 

11. MOTION TO FILE CONFIDENTIAL DOCUMENTS UNDER SEAL

TENTATIVE RULING:

 

The Motion is ordered off-calendar because the case has been assigned for all purposes to the Hon. Steven L. Dylina, Department 7.

 



9:00

Line: 12

CLJ538745     AMERICAN EXPRESS CENTURION BANK VS. MARIA-CHER MCCAFFREY

 

 

AMERICAN EXPRESS CENTURION BANK       MARTIN HOFFMANN

MARIA-CHER MCCAFFREY                  Pro/PER

 

 

MOTION FOR JUDGMENT ON THE PLEADINGS

TENTATIVE RULING:

 

The Motion for Judgment on the Pleadings is granted without leave to amend.  The complaint states a common count cause of action, the answer admits all of the material facts in the complaint and defendant does not assert any affirmative defense.  Judgment shall be entered in favor of plaintiff in the amount of $21,117.98.  Plaintiff may claim court costs by filing a costs memorandum pursuant to CRC 3.1700. 

 

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 as required by law and the California Rules of Court.  The order is to be submitted directly to Judge Jonathan E. Karesh, Department 20. 

 


 

 

 

 

 


POSTED:  3:00 PM

 

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