February 23, 2018
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.

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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 GERALD J. BUCHWALD

Department 10

 

400 County Center, Redwood City

Courtroom 8D

                                                                      

                         TENTATIVE RULINGS

 

Monday, February 26, 2018

 

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.  

 

    Case                  Title / Nature of Case

9:00

Line: 1

16-CIV-01828    WEI HU vs. SINO-USA ENTREPRENEUR ASSOCIATION, INC., et al.

 

 

WEI HU                                 EILEEN MA

SINO-USA ENTREPRENEUR ASSOCIATION, INC. PRO/PER

 

 

motion for protective order

 

  • CONTINUED TO MARCH 16, 2018 AT 9:00 AM. The Court (Hon. Susan Greenberg) having previously approved a Stipulation to Continue Motions, this matter is set over to Friday, March 16, 2018 at 9:00 am in the Law & Motion Department.

 


 

 

 

9:00

Lines: 2 & 3

17-CIV-01400     CARRIE L. CARRILLO vs.  FORD MOTOR COMPANY

 

 

CARRIE L. CARRILLO                     STEVE MIKHOV

FORD MOTOR COMPANY                     SPENCER P. HUGRET

 

 

2. DEFENDANT'S demurrer to PLAINTIFF'S SECOND AMENDED COMPLAINT

 

·         SUSTAINED WITHOUT LEAVE TO AMEND. Defendant FORD MOTOR COMPANY’s Demurrer to Second Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND as to the Third Cause of Action for Fraudulent Inducement – Concealment; Fourth Cause of Action for Fraudulent Inducement – Intentional Misrepresentation; and Fifth Cause of Action for Fraudulent Inducement – Negligent Misrepresentation.

 

Facts Alleged / Claims Made:

 

·         This is a lemon law case.  Plaintiff CARRIE CARRILLO purchased a new 2013 Ford Focus on May 22, 2013, and claims that the vehicle has a transmission defect with respect to the DPS6 PowerShift Transmission.  Plaintiff alleges that Defendant FORD MOTOR COMPANY fraudulently marketed and presented the vehicle as having an “automatic transmission” option.  However, the PowerShift Transmission is neither a traditional manual transmission nor a typical automatic transmission.  Instead, it is a computerized “automated manual” transmission.

 

·         In this action, Plaintiff alleges that the PowerShift Transmission is defective in its design and/or manufacture in that, among other problems, the transmission consistently slips, bucks, kicks, jerks, harshly engages, has premature internal wear, sudden acceleration, delay in downshifts, delayed acceleration, difficulty stopping the vehicle, and eventually, premature transmission failure. 

 

·         Plaintiff claims that Ford knew or should have known about the transmission defect as early as 2010, prior to her purchase of the vehicle.  Ford allegedly had exclusive knowledge of such defects based on non-public internal data, including pre-release testing data, early consumer complaints to Ford’s dealers for vehicle repairs, dealership repair orders, testing conducted in response to complaints, and technical service bulletins (“TSBs”) developed by Ford and communicated to its dealers and authorized repair facilities. 

 

        Prior Demurrers to Complaint: 

 

·         Defendant FORD MOTOR COMPANY previously demurred to the Third, Fourth, and Fifth fraud-based causes of action as set forth in the original Complaint and First Amended Complaint.  On both occasions, Ford’s demurrers were sustained with leave to amend.  (See Order on Demurrer to First Amended Complaint dated October 2, 2017 (“Order”), sustaining demurrer on statute of limitations and sufficiency grounds.)

  

Current Demurrer:

 

·         Ford once again demurs to these causes of action in the Second Amended Complaint on the grounds that: (1) these claims are time-barred; (2) they fail to state facts sufficient to constitute a cause of action; and (3) they are barred by the Economic Loss Rule.  Ford’s counsel submits a Code Civ. Proc. § 430.41 declaration stating that prior to filing this demurrer, she attempted to meet-and-confer with Plaintiff’s counsel via telephone, but the parties were unable to informally resolve their dispute.  (Decl. Gaye ¶ 10.)

 

  • Despite having been given specific instructions by this Court and multiple opportunities to amend her complaint, Plaintiff continues to fail to sufficiently allege facts supporting why these claims are not time-barred by the three-year statute of limitations for fraud claims.  Civil Code § 338(d). 

 

  • The demurrer is further sustained without leave to amend on the ground that Plaintiff’s Third, Fourth, and Fifth causes of action do not allege facts sufficient to support all elements of these claims, including a duty to disclose to support concealment (see Heliotis v. Schuman (1986) 181 Cal.App.3d 646, 651), and the specific misrepresentation(s) made by Defendant to support fraud (see Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157-158).

 

·         Defendant’s Request for Judicial Notice is GRANTED as to Exhibits A-C, and GRANTED to the extent that Exhibits D-G were filed Court documents, but not as to the truth of any matters asserted therein.  Evid. Code § 452.  Judicial notice is GRANTED as to Exhibit H. 

 

·                                                                                                                                                                                 If the Tentative Ruling is uncontested, it shall stand as the Court’s decision. Moving party’s Counsel 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 Gerald J. Buchwald, Department 10. 

 

 

 

 

 

3. DEFENDANT'S MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFF'S SECOND AMENDED COMPLAINT

 

·         GRANTED. Defendant FORD MOTOR COMPANY’s Motion to Strike Punitive Damages is GRANTED WITHOUT LEAVE TO AMEND.  As previously ruled by this Court, Plaintiff’s First and Second causes of action for violations of the Song-Beverly Act do not support a claim for punitive damages.  Civil Code § 1794.  The demurrer is sustained without leave to amend as to Plaintiff’s remaining fraud-based causes of action, as set forth above.

 

·         If the Tentative Ruling is uncontested, it shall stand as the Court’s decision. Moving party’s Counsel 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 Gerald J. Buchwald, Department 10. 

 

 

 

 

 

 



9:00

Line: 4

17-CIV-03813   DENNIS L. SIBBERT vs. AMERIPRISE INSURANCE CO., et al.

 

 

DENNIS L. SIBBERT                      Pro/PER

AMERIPRISE INSURANCE CO.               COLIN G. MCCARTHY

 

 

demurrer

 

  • OFF-CALENDAR. Plaintiff having filed a First Amended Complaint on Feb. 15, 2018, this Demurrer is now Moot and the matter is Ordered Off-Calendar.

 

 

 

 

 



9:00

LINE: 5

17-CIV-05749     CHIAO WU VS. OFFICER "A. WONG", ET AL.

 

 

CHIAO WU                          JAMES J. HUANG

OFFICER “A. WONG”                 TODD H. MASTER

 

 

HEARING ON DEFENDANTS’ DEMURRER  

 

  • OFF-CALENDAR. This Case having been recently designated Complex Civil by the Presiding Judge (Hon. Susan Etezadi) and re-assigned to Dept. 2 (Hon. Marie Weiner) for all purposes, this matter is Ordered Off-Calendar. Counsel for the Parties to contact the Courtroom Clerk in Dept. 2 (650-261-5102) to obtain a new Hearing date.

 

 

 

 

 



9:00

Lines: 6 – 9

CIV519845     KERA OAKLAND LLC, ET AL. VS. GEORGE A. ARCE, JR.

 

 

KERA OAKLAND, LLC                      SCOTT E. atkinson

GEORGE A. ARCE, JR.                    RUSSELL S. ROECA

 

 

 

6. demurrer to SECOND AMENDED cross-COMPLAINT

 

  • CONTINUED TO MARCH 27, 2018 AT 9:00 AM, ON THE COURT’S OWN MOTION AS THE COURT HAS NOT COMPLETED ITS REVIEW OF THIS MATTER.

 

 

 

 

7. demurrer to plaintiffs’ SECOND AMENDED COMPLAINT

 

 

  • CONTINUED TO MARCH 27, 2018 AT 9:00 AM, ON THE COURT’S OWN MOTION AS THE COURT HAS NOT COMPLETED ITS REVIEW OF THIS MATTER.

 

 

 

 

 

8. motion to strike plaintiffs’ SECOND AMENDED COMPLAINT

 

 

 

  • CONTINUED TO MARCH 27, 2018 AT 9:00 AM, ON THE COURT’S OWN MOTION AS THE COURT HAS NOT COMPLETED ITS REVIEW OF THIS MATTER.

 

 

 

9. motion to strike plaintiffs’ SECOND AMENDED cross-COMPLAINT

 

 

 

  • CONTINUED TO MARCH 27, 2018 AT 9:00 AM, ON THE COURT’S OWN MOTION AS THE COURT HAS NOT COMPLETED ITS REVIEW OF THIS MATTER.

 

 

 

 



9:00

Line: 10

CIV530137     STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

                   VS. JENNIFER LEIGH PEARL

 

 

JENNIFER LEIGH PEARL                             Pro/per

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY    TODD F. HAINES

 

 

Motion to enforce settlement agreement

 

·         GRANTED. Having now cured certain defects in its prior Motion (See Minute Order 10-16-17), Plaintiff State Farm Mutual Automobile Ins. Co.’s unopposed Motion to Enforce Settlement Agreement is GRANTED.  Code Civ. Proc. Sect. 664.6.

 

·         This is a subrogation action in which Plaintiff State Farm seeks recovery of over $35,000 paid out to its insured on an uninsured motorist claim arising from an auto accident sometime prior to 2014.

 

·         In July 2016, the underlying personal injury claim was settled by way of a Stipulated Judgment that was held without entry and execution provided that the Defendant Jennifer Pearl made the scheduled monthly payments that were agreed in the settlement.

 

·         Settlement was in the amount of $20,000, however Ms. Pearl has paid only $450 (3 monthly $150 payments), and stands in default. Accordingly, as per the terms and conditions of settlement, Plaintiff State Farm is entitled to have Judgment now entered.

 

·         Entry of Judgment is hereby Ordered in favor of Plaintiff and against Defendant in the amount of $43,656.18, calculated as follows:  $34,874.24 in principal ($35,324.24 minus $450 in payments made), plus $8,259.94 in claimed interest from 8-24-14, plus $522 in costs.  Total:  $43,656.18.

 

·          

If the Tentative Ruling is uncontested, it shall stand as the Court’s decision. Moving party’s Counsel 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. Counsel to also prepare and Judgment is to be submitted directly to Judge Gerald J. Buchwald, Department 10. 

 


9:00

Line: 11

CIV532927     tOP GAINS MINERALs MACAO commercial offshore limited

                 VS. SONg QUIANG CHEN, ET AL.

 

 

TOP GAINS MINERALS MACAO               JONATHAN R. DOOLITTLE

COMMERCIAL OFFSHORe LIMITED

CHEN, SONG QIANG

 

 

Motion for CHARGING order

 

·         DENIED. Plaintiff Top Gains Minerals’ Motion for Charging Order is Denied. Plaintiff still has not cured the defects in its Motion that the Court (Hon. Richard DuBois) pointed out in its previous Order of Aug. 24, 2017.

 

·         A motion for charging order must be served on “all members” of the LLC in which the judgment debtor purportedly owns an interest. (Code of Civ. Proc. Sect. 708.320, subd. (a).) The Proof of Service does not show that this motion was served on any members of Spiro Mining, LLC, or Coal Creek, LLC. It shows service on the LLCs, but the statute requires service on the LLC’s “members.”

 

·         Further, the motion lacks merit. The evidence does not demonstrate that either Judgment Debtor Song Qiang Chen or Metamining, Inc. owns any interest in Spiro Mining, LLC or Coal Creek, LLC. Judgment Creditor relies solely on an unauthenticated May 15, 2015, email purportedly from Judgment Debtor Chen. (Exhibit 1 to Declaration of Ieong Kun Fo.) The email does not state that Metamining owns any interest in Spiro Mining, LLC or Coal Creek LLC. It states only that Metamining owns 60 percent of “the coal mine.” Further, the email is from May 2015, which does not demonstrate that Metamining, Inc. holds any ownership interest in February 2018. 

 

·         Finally, moving party Judgment Creditor contends that Coal Creek LLC is “a wholly owned subsidiary of Spiro.” (Declaration of Ieong para. 22; Moving P&A at 2:11.) Since Spiro purportedly owns all of Coal Creek, then Coal Creek cannot be owned by either Chen or Metamining.

 

·         The evidence also does not show that Judgment Debtor Song Quiang Chen owns any interest in either Spiro or Coal Creek.

 

·         If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, Judgment Creditor 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. Order to be submitted directly to Hon. Gerald J. Buchwald, Dept.10.

 

 

 

 

 



9:00

Line: 12

CLJ508730    STATE FARM GENERAL insurance company VS LEONID YANOVSKY, ET AL.

 

 

LEONID YANOVSKY                        Arsen Sarapinian

STATE FARM GENERALINSURANCE CO          JACK D. HULL

 

 

motion for assignment order

 

·    DENIED WITHOUT PREJUDICE. Plaintiff State Farm General Insurance Company’s Motion For Assignment Order is Denied Without Prejudice to the Motion being renewed with a complete supporting Declaration and possible amendment seeking relief as to assignment of payments received by Mars Appliance. Plaintiff’s 11th hour Reply, which was just delivered to the Court (Dept. 10) late this morning, does not satisfy the issues raised below.

 

·    The Court notes its Minute Order of yesterday where Defendants Motion To Set Aside Default/Default Judgment has been Denied. The Default Judgment against Defendants is for $9,337.59 that State Farm previously paid out on behalf of its Insured Ira Lau under a homeowner insurance policy for property damage caused by Defendants, his neighbors.

 

·    Plaintiff’s counsel cites to an Exhibit A to his declaration to support that Defendants are employed as independent contractors for Sunset Pacific Transportation, but the exhibit is missing.  Thus, Plaintiff has not provided any evidentiary support for the assignment order.  Moreover, Defendants submit declarations stating that they have never heard of Sunset Pacific Transportation and have no business relationship with it.  Defendants state in their declarations that they operate an appliance repair business named Mars Appliance.

 

·         If the Tentative Ruling is uncontested, it shall stand as the Order of the Court, effective immediately pursuant to Rule 3.1308 (a) (1), Calif. Rules of Court, as adopted by Local Rule 3.10, and no formal order pursuant to Rule 3.1312, or any other notice, is required, the tentative ruling having given sufficient notice to the parties.


 

 

 


POSTED:  3:00 PM

 

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