August 27, 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 susan irene etezadi

Department 18

 

400 County Center, Redwood City

Courtroom 2M

 

Monday, August 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.

 

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 508888       CINDY K. HUNG, ET AL. VS. TRIBAL TECHNOLOGIES, ET AL.

 

 

CINDY K. HUNG                         LYNDA HUNG

TRIBAL TECHNOLOGIES                   KASEY C. TOWNSEND

 

 

MOTION TO COMPEL PLAINTIFFS TO PROVIDE FURTHER RESPONSES TO DISCOVERY RESPONSES PURSUANT TO COURT ORDER AND REQUEST FOR SANCTIONS BY JOSEPH PETER VIERRA AND VICTORIA DINOVICH

 

 

The Motion to Compel Further Responses is GRANTED in its entirety. The Court finds that all responses to the subject discovery requests remain deficient. The Court has opted to evaluate the Supplemental Responses that Plaintiffs served on August 9, 2015, and finds that all of them are also deficient for the same reasons as the previous responses.

 

 

Plaintiff Li Ching Chu and Plaintiff Robert Ching Liang Hung shall each respond further to (1) Joseph Vierra’s Form Interrogatories (Set Two) Number 17.1 and (2) Victoria Dinovich's Form Interrogatories (Set Two), Number 17.1.

 

 

Plaintiff Li Ching Chu shall respond further to Defendants' Requests For Production Of Documents, Document requests 31 through 44.

 

 

Plaintiff Robert Ching Liang Hung shall respond further to (1) Victoria Dinovich’s  Request For Production Of Documents, Document requests 19 through 33 and (2) Joseph Vierra's Request For Production Of Documents, Document requests 31 through 44.

 

 

In responding to interrogatories, Plaintiffs shall comply with Code of Civil Procedure section 2030.220: “(a) Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits. (b) If an interrogatory cannot be answered completely, it shall be answered to the extent possible. (c) If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.”

 

 

In responding to all document requests, if Plaintiffs contend that they are unable to comply with the demand, they shall answer in the manner set forth in Code of Civil Procedure section 2031.230:

 “ . . . . [A]ffirm 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.”

 

Plaintiffs jointly and severally shall pay reasonable attorney’s fees of $1,050 as follows: $525 to Defendant Victoria Dinovich and $525 to Defendant Joseph Vierra.

 

 

This is Plaintiffs’ final opportunity to comply with the subject discovery demands and with this Court’s previous order. If Plaintiffs continue to fail to respond sufficiently to the discovery requests that are the subject of this motion, the Court will consider evidence sanctions, issue sanctions, and terminating sanctions, if requested.

 

 

Plaintiffs shall serve verified further responses and pay all monetary sanctions as described above no later than September 21, 2015, or two weeks after service of the written order on this motion, whichever is later. 

 

 

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Defendants 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. 

 

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9:00

2

CIV 524622       ADP LEMCO, INC. VS. SJ AMOROSO CONSTRUCTION CO.,

                   INC., ET AL.

 

 

ADP LEMCO, INC.                       JEREMY D. EVELAND

S.J. AMOROSO CONSTRUCTION CO., INC.   JANETTE G. LEONIDOU

 

 

MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES BY S.J. AMOROSO CONSTRUCTION CO INC. AND FEDERAL INSURANCE CO.

 

 

On June 23, 2015, Plaintiff filed with the Court a Request for Dismissal with Prejudice of the Entire action of all parties and all causes of action. The Motion is therefore moot.

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9:00

3

CIV 525462       KEVIN G. KANNING VS. JOE D. HEDGES, ET AL.

 

 

KEVIN G. KANNING                      PRO/PER

JOE D. HEDGES                         THOMAS E. MOORE

 

 

MOTION TO ENFORCE SETTLEMENT BY VOELKER SENSORS, INC.

 

 

The Court has considered Voelker’s untimely filed opposition.

 

Defendant Voelker Sensors, Inc.’s motion to enforce settlement is GRANTED.  The parties stipulated orally before the court for settlement of the case.  Mr. Voelker agreed to the settlement, stated he understood that Mr. Kanning would be issued an additional 1.25 million shares of stock and that he had no opposition.  In order to issue the 1.25 million shares of stock, the shareholders of Voelker Sensors, Inc. must approve an amendment to the company’s Articles of Incorporation to increase the number of authorized shares.  Under its authority pursuant to CCP §664.6 and CCP §128(a)(4), the court orders that Voelker execute all documents necessary, including but not limited to the “Written Consent of the Shareholders of Voelker Sensors, Inc.” attached as Exhibit A to the Declaration of Joe D.  Hedges, to complete the issuance of the 1.25 million shares of stock to Kanning.  (See, Ironridge Global IV, Ltd. v. ScripsAmerica, Inc. (2016) 238 Cal. App. 4th 259; Blueberry Properties, LLC v. Chow (2014) 230 Cal. App. 4th 1017)

 

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 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 Susan Irene Etezadi, Department 18.

 

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9:00

4

CIV 527270       CHARLES OGREN, ET AL. VS. BRITTAN HEIGHTS CONDOMINIUM

                   ASSOCIATION, ET AL.

 

 

CHARLES OGREN                         MARC D. BENDER

BRITTAN HEIGHTS CONDOMINIUM ASSOCIATION    PAUL W. WINDUST

 

 

MOTION FOR ATTORNEY FEES BY BRITTAN HEIGHTS CONDOMINIUM ASSOCIATION, AMERICAN MANAGEMENT SERVICE, INC., SHERRY SELWOOD, CECE CLEARY, VANESSA LEA, ED POZZI AND SCOTT BENTSON

 

 

Defendants Brittan Heights Condominium Association, American Management Services, Inc., Sherry Selwood, Cece Cleary, Vanessa Lea, Ed Pozzi and Scott Bentson’s Motion for Attorney Fees is GRANTED, pursuant to Civil Code §§ 5975(c) and § 1717.

 

Defendants are awarded $103,049.00 in attorney fees to be paid by Plaintiffs. Defendants are the prevailing parties because their motion for summary judgment was granted and they were dismissed from the case. Plaintiffs did not meet their burden of challenging the attorney fee claim. The Court finds that the attorney fees submitted were reasonable and necessary to the litigation.

 

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 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 Susan Irene Etezadi, Department 18.

 

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9:00

5

CIV 530745       JOHN SHAHIN VS. AMICA MUTUAL INSURANCE COMPANY

 

 

JOHN SHAHIN                           NEIL S. STEINER

AMICA MUTUAL INSURANCE COMPANY        NICOLE L. MEREDITH

 

 

MOTION FOR TERMINATING, ISSUE AND/OR EVIDENTIARY SANCTIONS AGAINST RESPONDENT AMICA MUTUAL INSURANCE; OR, IN THE ALTERNATIVE FOR AN ORDER COMPELLING RESPONDED AFFILIATED WITNESS SAMUEL ALSTON TO APPEAR FOR DEPOSITION; REQUEST FOR MONETARY SANCTIONS IN THE SUM OF $4,421 BY JOHN SHAHIN

 

 

Plaintiff filed a Notice of Settlement of Entire Case on August 18, 2015. The Settlement is Unconditional and a request for dismissal will be filed within 45 days after the date of the settlement which was August 7, 2015. Therefore, the Motions at issue are moot.

 

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9:00

6

CIV 531805       LUCA DADA VS. VERACOM FORD

 

 

LUCA DADA                             MARK ROMANO

VERACOM FORD                          KASEY TOWNSEND

 

 

MOTION TO COMPEL FURTHER DISCOVERY RESPONSES FROM VERACOM FORD AND REQUEST FOR SANCTIONS IN THE AMOUNT OF $3,400 BY LUCA DADA

 

 

Plaintiff’s Motion to Compel Further Responses to Requests for Production of Documents (Nos. 3, 7, 16, 24 & 27) is DENIED because Defendant agreed to produce documents; however, Defendant is ORDERED to provide Plaintiff with a privilege log addressing all responsive documents that have been withheld by Defendant because of privilege/objection. Such privilege log shall be served on or before 10 days after service of Notice of Entry of Order.

 

 

Plaintiff’s Motion to Compel Further Responses to Requests for Admission is DENIED because the responses provided by Defendant reflect the language of the Code. Notwithstanding Plaintiff’s assertion that these responses are ‘disingenuous’ no evidence has been submitted that supports a failure to investigate by Defendant. The Court thus defers this issue and leaves it to Plaintiff to decide if he will pursue costs and expenses of proof after trial.

 

The requests for monetary sanctions are both DENIED.

 

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 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 Susan Irene Etezadi, Department

 

_____________________________________________________________________


9:00

7

CIV 533631       SBI BUILDERS INC. VS. NUNO IRON & MANUFACTURING, INC.

 

 

SBI BUILDERS, INC.                    CRAIG WALLACE

NUNO IRON & MANUFACTURING, INC.       MICHAEL S. SOSNOWSKI

 

 

MOTION FOR ATTORNEYS' FEES FILED BY NUNO IRON & MANUFACTURING, INC.

 

 

Respondent NUNO IRON & MANUFACTURING, INC.’s Motion for Attorney’s Fees is GRANTED in the amount of $6,825.50, and its costs in the amount of $495.00.  Respondent is entitled to its attorney’s fees and costs pursuant to Code Civ. Proc. § 1021 and Section 17.2.8 of the parties’ “Standard Subcontract Agreement”, which was filed by Petitioner as Exhibit “A” to the declaration of its counsel in support of its Petition for Order Staying Arbitration on May 1, 2015. 

 

Petitioner SBI BUILDERS, INC.’s separately-filed Motion to Tax Costs Including Attorney’s fees, currently scheduled for September 3, 2015, is taken OFF-CALENDAR, as this motion simply duplicates the same issues and arguments raised in Petitioner’s Opposition to Motion for Attorney’s Fees, and is rendered moot by the holding above. 

 

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 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 Susan Irene Etezadi, Department 18.

 

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9:00

8

CLJ 211405       MARY ZOCCA VS. BENJAMIN DURAN

 

 

MARY ZOCCA                            SHAUNA L. MATLIN

BENJAMIN DURAN

 

 

MOTION FOR JUDGMENT ON THE PLEADINGS BY MARY ZOCCA

 

 

The Motion for Judgment on the Pleadings is denied.  Defendant’s answer is sufficient to state a defense as it denies material allegations of the complaint. 

 

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 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 Susan Irene Etezadi, Department 18.

 

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9:00

9

CLJ 528343       KLADRUBER BREEDING FARM, INC. VS. JEANINE M. COMMIN-

                   ELEWSKI

 

 

KLADRUBER BREEDING FARM, INC.         STEPHEN BENDA

JEANINE M. COMMIN-ELEWSKI

 

 

MOTION FOR ORDER DIRECTING THE ISSUANCE OF AN EARNINGS WITHHOLDING ORDER AGAINST THE EARNINGS OF JUDGMENT DEBTOR’S SPOUSE BY KLADRUBER BREEDING FARM, INC.

 

 

Plaintiff / Judgment Creditor KLADRUBER BREEDING FARM, INC.’s Motion for Order Directing the Issuance of an Earnings Withholding Order is GRANTED.  The levying officer or registered process server shall issue an earnings withholding order in this action against the earnings of Judgment Debtor’s spouse, Phillip Elewski, pursuant to Code Civ. Proc. §§ 706.021 and 706.109 upon application of Judgment Creditor KLADRUBER BREEDING FARMS, INC.  

 

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 to 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 Susan Irene Etezadi, Department 18.

 

_____________________________________________________________________


 

In the Superior Court of the State of California

In and for the County of San Mateo

 

WRITS AND RECEIVERS CALENDAR

Judge: Honorable STEVEN L. DYLINA

Department 7

 

400 County Center, Redwood City

Courtroom 8B

 

August 24, 2015

 

 

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

 you must call (650) 261-5107 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

1

CIV 515962   ZACHERY ROWE VS. PACIFIC GAS AND ELECTRIC COMPANY, ET AL.

 

 

ZACHERY ROWE                          TIMOTHY G. TIETJEN

PACIFIC GAS AND ELECTRIC COMPANY      GREGORY C. READ

 

 

MOTION FOR SUMMARY JUDGEMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION BY DAVEY TREE EXPERT COMPANY

 

 

Defendant Davey Tree Expert Company’s first request for judicial notice is GRANTED.

 

 

Defendant Davey Tree Expert Company’s second request for judicial notice is DENIED.  The Court exercises its discretion to refuse to consider this evidence, introduced with the reply papers, on the grounds that it would violate the non-movant’s due process rights.  (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 314, 316.)

 

 

Defendant Davey Tree Expert Company’s evidentiary objections to lines 9:7-9 of the Declaration of Arthur James Downer, Ph.D. and lines 8:12-14 of the Declaration of Roy C. Leggitt, III are SUSTAINED.  Defendant’s evidentiary objections to the deposition testimony of Matthew Del Carlo are OVERRULED.

 

 

Defendant Davey Tree Expert Company’s Motion for Summary Judgment Or, In The Alternative, Summary Adjudication is:

 

·         DENIED as to the motion for summary judgment.  As discussed in more detail below, there is a triable issue of material fact with respect to the Fourth Cause of Action.

 

·         MOOT as to the motion for summary adjudication of the First, Second, and Third Causes of Action.  Plaintiff has stated that he is voluntarily dismissing Defendant as to these causes of action.  (Pl. Opp. at fn. 2.)

 

·         DENIED as to the motion for summary adjudication of the Fourth Cause of Action for Negligence.

 

 

The following facts are undisputed.  A tanoak tree fell on Plaintiff in July 2012 while he was camping in San Mateo County Memorial Park (“Memorial Park”).  The subject tree’s failure was caused by an Armillaria infection.  In 2007, Defendant County of San Mateo (the “County”) hired Defendant Davey Tree Expert Company (“Davey”) to perform a visual inspection of Memorial Park to identify trees that were “imminent hazards.”  Davey did not identify subject tree as an “imminent hazard.” 

 

 

Plaintiff claims that Davey’s failure to identify the subject tree as hazardous was negligent and a proximate cause of his injuries.  Davey argues the negligence claim fails as a matter of law because there were no visual signs that the subject tree was unhealthy or hazardous when Davey performed its visual inspection in 2007. 

 

 

Davey concedes whether the subject tree’s hazardous condition was detectable by visual inspection in 2007 is an issue of fact.  (Davey Mem. at 11:3-4.)  Davey and Plaintiff have presented competing expert declarations regarding when the tree’s hazardous condition was detectable by visual inspection.  Davey’s expert opines that the Armillaria infection began decaying the tree at the earliest in 2009, therefore, there could not have been any visual sign that the tree was unhealthy or hazardous in 2007.  Plaintiff’s experts opine that the symptoms of the tree’s disease and defects would have been visible since 2002.  This competing expert testimony is sufficient to raise a triable issue of material fact as to whether the subject tree’s hazardous condition was detectable by visual inspection in 2007.  Accordingly, summary judgment and summary adjudication of the fourth cause of action for negligence must be denied.

 

 

On reply, Davey concedes that the disagreement between the experts regarding when the subject tree exhibited visible symptoms of disease cannot be resolved by summary adjudication.  (Davey Reply at 2:9-11.)  Davey argues that even if there is a triable issue as to whether the tree exhibited visible symptoms of illness in 2007, summary adjudication is still appropriate because it was contractually obligated to identify only “imminent” tree hazards, “imminent” means “happening very soon” or “ready to take place,” and Plaintiff has not presented evidence that the subject tree’s failure was “imminent” in 2007.  Davey’s argument was not adequately raised its moving papers.  Indeed, Davey expressly stated in its moving papers that “the precise meaning of the term ‘imminent’ [as it is used in the 2007 contract between Defendant and the County] need not be adjudicated for purposes of this motion.”  (Davey Mem. at 10:6-8.)  Moreover, even if Davey’s argument was sufficiently raised in its moving papers, Davey has not made a prima facie showing that the term is unambiguous and should be interpreted to mean trees expected to fail in 2007.

 

 

______________________________________________________________________

 

 

 


POSTED:  3:00 PM

 

 

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