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In the Superior Court of the State of California
In and for the County of San Mateo
Law and Motion Calendar
Judge: Honorable LISA A. NOVAK
400 County Center, Redwood City
MARCH 7, 2014
IF YOU INTEND TO APPEAR ON ANY CASE ON THIS CALENDAR YOU MUST DO THE FOLLOWING:
1. YOU MUST CALL (650) 363-1882 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
CIV 501071 JAN CHANDLER, ET AL. VS. MATTHEW SIMON
JAN CHANDLER MICHAEL S. DANKO
MATTHEW SIMON MARK CARBONE
MOTION FOR SUMMARY JUDGMENT AS TO 2nd Amended COMPLAINT of CHANDLER FILED BY STATE OF CALIFORNIA
· Defendant’s Request for Judicial Notice is DENIED as to all exhibits for which judicial notice is sought except for the Second Amended Complaint.
· Defendant’s Evidentiary Objections are SUSTAINED as to objection No. 1 and OVERRULED as to Objections Nos. 2-5. Counsel shall provide the court with an order in compliance with CRC 3.1354(c).
· Defendant CALIFORNIA DEPARTMENT OF TRANSPORTATION’s Motion for Summary Judgment is DENIED. Defendant’s moving papers concede that the existence of a dangerous condition is ordinarily a question of fact, and that the Court may only resolve the issue as a matter of law if reasonable minds can come to only one conclusion. Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1133.
· There are triable issues of material fact precluding a grant of summary judgment pursuant to Code Civ. Proc. § 437c(p)(2), including the following UMFs:
- 11-12: Other pedestrian accidents at that same location within a 5-year period.
- 24: Placement of the white cross-walk “in accordance” with the MUTCD.
- 34-39: Whether a dangerous condition existed at the subject crosswalk.
· This last area of dispute goes to the heart of Defendant’s motion, for it is Defendant’s position that Plaintiff has failed to establish that a triable issue of fact exists as it relates to the first element of Gov Code 835. To succeed on that claim, Plaintiff’s must prove:
o The accident location was in a dangerous condition;
o The dangerous condition was the proximate cause of the injuries;
o The injuries were a reasonably foreseeable consequence of the dangerous condition; and either
o (a) The dangerous condition was created by a negligent or wrongful act or omission of an employee of the State; or
o (b) The State had actual or constructive notice of the dangerous condition for a sufficient time prior to the accident to have taken measures to protect against the dangerous condition.
· Defendant’s argument that Gov. Code 830.4 and 830.8 mandate a granting of motion for summary judgment is not persuasive. Those provisions invest the State with a type of immunity assuming that the only issue in the claim is the existence, or lack thereof, of regulatory traffic control signals or warning signals, signs, marking or devices. A crosswalk falls under these parameters. However, Plaintiffs do not argue that the mere absence of some warning signal was a direct cause of their injury/loss, but rather set for a litany of factors when taken together created a dangerous condition which Defendant should have mitigated. Plaintiffs evidence includes:
- The crosswalk markings were installed across El Camino Real at the southern boundary of the intersection with Isabella Ave., crossing seven lanes of traffic.
- The crosswalk markings were two parallel white lines with no “ladder” or “zigzag” striping between them.
- For motorists traveling on El Camino Real, there are neither stop signs nor traffic control signals, nor are there “active” warning signals or overhead pedestrian crossing signs.
- A single sign warning of a pedestrian crossing was located on southbound El Camino Real approximately 400 feet prior to the subject intersection.
- There are no sidewalks along El Camino Real at this location.
- There are many trees very close to the edge of El Camino Real, and
- Isabella Ave. is very narrow.
· Plaintiffs argue that the markings can give pedestrians a misplaced sense of security in crossing and that the presence of this crosswalk. By marking the crosswalk, Defendant directed pedestrians to cross the lanes of traffic there rather than at another, controlled intersection. Thus, Defendant both increased the number of pedestrians using the crosswalk and increased the danger to those that do. Accompanied by traffic controls or “active” warning systems, the markings substantially increase the risk of injury to pedestrians as compared to installing no crosswalk markings. The Defendant’s reliance on Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1135. The court in Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340 do not equate to a finding, as a matter of law, that no triable issue of fact exists. Plaintiffs position is that their evidence supports a finding that a “physical defect” was created by Defendant’s placement of the crosswalk in this area without any mitigating factors, which in turn actually increased the risk of harm, and that a causal connection between the condition of this intersection and decedent’s injury exists.
· Accordingly, summary judgment is denied.
· The moving party shall submit an order per CRC 3.1312 to the court, Department 13, Judge Novak, for signature.
CIV 508065 TIFFANY JANE MOLOCK VS. WESTBOROUGH COURT CONDOMINIUM, ET AL.
TIFFANY JANE MOLOCK JOHN C. MILLER
WESTBOROUGH COURT CONDOMINIUM AUDREY SMITH
MOTION FOR ORDER DETERMINING SETTLEMENT TO BE IN GOOD FAITH BY WESTBOROUGH COURT CONDOMINIUM, THE MANOR ASSOCIATION, INC.
· The motion for a determination of Good Faith Settlement per CCP 877.6 is GRANTED. The Court is satisfied that the criteria set forth in Tech-Built, Inc. v. Woodward-Clyde Associates (1985) 38 Cal.App.3d 488 have been met. This finding by the Court shall bar any other joint tortfeasor or co-obligor from any further claims against the settlement tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.
· The moving party shall prepare an order per CRC 3.1312 and submit it directly to Department 13, Judge Novak, for signature.
CIV 514363 JAMES M. HUGGER, ET AL. VS. COAST CAPITAL INCOME FUND, LLC, ET AL.
JAMES M. HUGGER PRO/PER
COAST CAPITAL INCOME FUND, LLC
DEMURRER TO 3rd Amended COMPLAINT of HUGGER BY COAST CAPITAL INCOME FUND, LLC
· Defendant’s Request for Judicial Notice is GRANTED.
· Defendants’ demurrer is OVERRULED as to all other causes of action.
· The Demurrer based upon the statute of limitations is OVERRULED because there is no clear and affirmative running of the statute of limitations in the pleading.
· The applicable statute of limitations for actions arising from a claim of fraud is 3 years. CCP 338. The delayed discovery rule works to toll the limitation until the plaintiff learns or with reasonable diligence should of suspected wrongdoing. Defendants’ argument that the Plaintiffs action began to accrue in June-July 2008 upon their being provided an updated investment portfolio within a month or so of receiving the initial portfolio is not convincing. The updated portfolio shows an increase in the value of the fund and would have done nothing more than persuade Plaintiffs that the investment opportunity was growing. Plaintiffs allege they did not suspect, and had not reason to suspect something was amiss until September 2009 at the earliest when they received a letter indicating a concern about the CEO of the fund and how it was being managed. The complaint was filed June 1, 2012, within the 3 year statute of limitations of this discovery.
· The Demurrers as to the First (Fraud), Second (Misrepresentation) and Third (Intentional Misrepresentation) Causes of Action are OVERRULED.
· Plaintiffs have set forth with sufficient specificity that actions taken by identifiable persons with apparent authority to speak and act on behalf of Defendant were fraudulent in their nature and intended to induce Plaintiffs to invest, and that in turn Plaintiffs were harmed by the misrepresentations. For example, Plaintiffs allege:
§ Kimberly Badtke, Vice President of Investments from June 2006 until February 2009, met with plaintiffs at the Palo Alto office of CCIF. Plaintiffs were told by Badtke and David Biano that CCIF was debt free, but as of Oct. 1, 2009 the balance owed to Bridge Bank was $11,665,000. The statements and information from Badtke led plaintiffs to believe that the Fund was a good investment and had been operating and performing well since 1998. Defendants claimed that CCIF was profitable when its managers and employees new [sic] that the Fund was not profitable. Defendants were knowledgeable that the appraisal on the Bryon Property was false. Defendants represented that CCIF was solvent, which was false; defendants knew CCIF was using Bridge Bank loans to pay distributions to the CCIF investors.
· The Demurrer as to the Fourth Cause of Action (Bus. & Prof. Code section 17200) is OVERRULED.
· The authority cited by defendant is pre-1992 Amendment of B&P 17200. As it reads now, “[U]nfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1 (commencing with Section 17500)… of the Business and Professions Code.” B&P 17200. The plain meaning of the amendment, as enacted, is that the [Unfair Competition Act] now covers single acts of misconduct. Plaintiffs have adequately pled a violation, as it is sufficient to claim relief based upon a single “act.”
· The Demurrer as to the Fifth Cause of Action (Fiduciary Negligence) is SUSTAINED WITHOUT LEAVE TO AMEND. As a matter of law, a limited liability company in and of itself does not owe a fiduciary duty to its members. Corporations Code 17704.09 sets forth the fiduciary duties and other standards of conduct for members and managers. As such, where a manager of an LLC, which Defendant is, owes a fiduciary duty to the members of the LLC, the Defendant herein as alleged does not.
· Moving party shall submit an order per CRC 3.1312 directly to Department 13, Judge Novak, for signature.
CIV 515621 PARK PLAZA TOWERS OWNERS ASSOCIATION, ET AL. VS. PATRICK MCERLAN, ET AL.
PARK PLAZA TOWERS OWNERS ASSOCIATION GRANT H. BAKER
PATRICK MCERLAIN RICHARD S. BAUM
MOTION TO MODIFY RESTRAINING ORDERS TO PERMIT ATTENDANCE AT LEGAL PROCEEDINGS OUTSIDE CONDO BY PATRICK MCERLAIN
· Defendant’s motion to modify restraining orders shall be CONTINUED in the department of the Presiding Judge for a time yet to be determined.
· Defendant Patrick McElrain is a party to this action and is entitled to attend depositions, pretrial proceedings, and trial, subject to further order of this Court. Defendant Patrick McElrain is subject to restraining orders in the following actions:
· Schureurs v. McErlain: Superior Court of the State of California San County of San Mateo civil action number 487376. Restraining order entered on September 26, 2012.
· Robles v. McErlain: Superior Court of the State of California San County of San Mateo civil action number 497415. Restraining order entered on May 30, 2013.
· Fallon v. McErlain: Superior Court of the State of California San County of San Mateo civil action number 497417. Restraining order entered on July 23, 2013.
· These restraining orders were sought and obtained by residents of the Park Plaza Towers Condominium project. Each restraining order requires that defendant Patrick McElrain remain at least 25 yards away from the petitioner in the civil harassment matters.
· The restraining orders potentially conflict with defendant’s right to attend the discovery, pretrial proceedings, and trial of this matter.
· A discovery motion should be brought before the law and motion department of this court. A modification of a civil harassment order should be brought before the Presiding Judge of this court.
· Defense counsel shall provide statutory notice to all counsel in this action and all counsel/all parties to the civil harassment actions identified above for the date, time and location of the motion to modify the civil harassment order(s). If defense counsel pursues any ex parte relief, counsel shall serve copies of the ex parte application for an order modifying the civil harassment orders/application for order shortening time; ex parte order, the motion to modify restraining order, and all other pleadings filed in connection with this motion to modify restraining order on all counsel in this action and all counsel/all parties in the civil harassment matters.
· The moving party is directed to prepare a written order consistent with the court's tentative ruling for the court's signature, pursuant to CRC 3.1312, and to provide notice thereof to all counsel as required by law and the California Rules of Court. A copy of the order is to be delivered directly to Judge Novak in Department 13.
CIV 518012 REZA SAFAIE VS. MAJID SALIM, ET AL.
REZA SAFAIE BABAK SEMNAR
MAJID SALIM KENNETH S. KATZOFF
MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION OF ISSUES BY AZITA KHASHAYAR, SHAHIN REZAI AGAINST REZA SAFAIE
· Moot. Matter dismissed as to these Defendants.
CIV 521280 CHERYL G. LEVINE, ET AL. VS. GEMMA G. GUILLERMO, M.D., ET AL.
CHERYL G. LEVINE MARJORIE G. MANDANIS
GEMMA G. GUILLERMO, M.D. SCOTT R. KANTER
MOTION TO COMPEL FURTHER RESPONSES TO DEFENDANTS DISCOVERY REQUESTS BY CHARLES E. XUEREB, M.D.
· Defendant Charles Xuereb, M.D.’s Motion to Compel Further is GRANTED pursuant to CCP 2023.010, 2023.030, 2023.040, 2030.300 and 2031.310. Plaintiff has failed to adequately and completely respond to Defendant’s Form Interrogatories [Set 1], Numbers 6.5 and 17.1; Special Interrogatories [Set 1], Numbers 3-7, 9-26 and 34-35; Special Interrogatories [Set 2], Numbers 47-50; and Request for Production [Set 1], Numbers 9, 15-16, 30-31, 33, 39, 43, 47 and 51. Plaintiff’s Supplemental responses, filed February 25, 2014, also fail to adequately respond to Defendant’s discovery requests. Plaintiff shall provide further responses to the discovery requests on or before March 21, 2014.
· Defendant’s Request for Monetary Sanctions is GRANTED pursuant to CCP 2030.300(d), 2031.310(h) in the amount of $922.50. Said monetary sanctions shall be paid by Plaintiff on or before March 21, 2014.
CIV 524755 TRUELIGHT MISSIONARY BAPTIST CHURCH VS. CHARLES E. GRIFFIN
TRUELIGHT MISSIONARY BAPTIST CHURCH VERNON C. GOINS
CHARLES E. GRIFFIN PRO/PER
DEMURRER TO CROSS-COMPLAINT of GRIFFIN BY TRUELIGHT MISSIONARY BAPTIST CHURCH
· Moot. First Amended Cross Complaint filed January 30, 2014.
CLJ 208223 POLYMATHIC PROPERTIES, INC. VS. AKHENATON HASSAN SMITH
POLYMATHIC PROPERTIES, INC. MIKE HOGAN
AKHENATON HASSAN SMITH PRO/PER
MOTION FOR ORDER ENTERING DEFENDANTS DEFAULT FOR FAILURE TO OBEY DISCOVERY ORDER BY POLYMATHIC PROPERTIES, INC.
· Plaintiff Polymathic Properties’s Motion for Terminating Sanctions is GRANTED. Defendant Akhenaton Hassan Smith was provided with notice of the Court’s January 13, 2014 order compelling him to attend his deposition, produce documents requested in notice of deposition, and to pay monetary sanctions. Despite notice of the court's order, defendant has failed to obey this court’s order to provide discovery by appearing for his deposition and producing documents. He has also failed to pay the monetary sanctions that were ordered. This is a sufficient misuse of the discovery process to warrant terminating sanctions pursuant to CCP § 2023.030(d)(1), (4) and monetary sanctions pursuant to CCP § 2023.030(a).
· Defendant’s answer is stricken and his default is to be entered. Plaintiff’s request for further sanction is denied.
CLJ 208880 MOAB INVESTMENT GROUP, LLC VS. DAVID G. ARELLA
MOAB INVESTMENT GROUP, LLC BRENDA CRUZ KEITH
DAVID G. ARELLA KEVIN S. EIKENBERRY
DEMURRER TO COMPLAINT (UNLAWFUL DETAINER) of MOAB INVESTMENT GROUP, LLC BY RYAN MORAN
· Defendant Moran’s demurrer to the complaint is overruled.
· There is nothing on the face of the complaint, or of which the court may take judicial notice, showing that Moran was a tenant and, therefore, entitled to more than 3 days’ notice. “[W]hile courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files.” Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882. The Court takes judicial notice of the existence of Defendant’s filing of a Prejudgment Claim of Right to Possession, but not to any facts i.e. hearsay statements asserted therein.
· 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 Lisa A. Novak, Department 13.
· Defendant shall file an answer within the statutory period required upon service of that order.
CLJ 522709 ROGELIO RODRIGUEZ, ET AL. VS. ALEJANDRO VASQUEZ, ET AL.
ROGELIO RODRIGUEZ PRO/PER
ALEJANDRO VASQUEZ ROBIN Y. TREMBATH
MOTION TO BE RELIEVED AS COUNSEL BY ROGELIO RODRIGUEZ
· Counsel Anthony Lopez and Southwest Legal Group’s Motion to be Relieved as Counsel for Plaintiff Rogelio Rodriguez, is GRANTED pursuant to CCP §284(2) and CRC §3.1362. Counsel has filed this motion using the required forms and has provided notice to his clients and opposing counsel.
· Counsel shall submit an order directly to Department 13, Judge Novak.
CLJ 208642 MOAB INVESTMENT GROUP, LLC VS. RAYMOND A. MORENO
MOAB INVESTMENT GROUP, LLC BRENDA CRUZ KEITH
RAYMOND A. MORENO PRO/PER
MOTION FOR SUMMARY JUDGMENT AS TO COMPLAINT (UNLAWFUL DETAINER) of MOAB INVESTMENT GROUP, LLC FILED BY MOAB INVESTMENT GROUP, LLC
· Defendant Moreno has filed a notice of stay of proceedings on March 4, 2014 pending his petition for bankruptcy. This motion is dropped from calendar until further notice following the lifting of the stay.