April 26, 2017
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 RICHARD H. DuBOIS

Department 16

 

400 County Center, Redwood City

Courtroom 7A

 

Monday, April 24, 2017

 

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

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16-CIV-01095     FELIPE A. PRIAST vs. GENENTECH, INC.

 

 

FELIPE A. PRIAST                       RICHARD ROGERS

GENENTECH, INC                         Allison R. Giese

 

 

Motion to compel further response to request for production of documents set two

TENTATIVE RULING:

 

Plaintiff Felipe Priast’s Motion to Compel Further Response to Request for Production of Documents, Set Two, is addressed as follows: 

 

As to Group 1 (Requests for Production Nos. 1-2, 4-5, 8, 17-18, 23-28, 32-34), the motion is DENIED without prejudice.  Plaintiff notes that on March 13, 2017, after this motion was filed, Genentech produced five boxes of documents apparently responsive to these Requests, which Plaintiff has not yet reviewed.  Genentech has agreed to provide an index for these five boxes of documents.  Per the declaration of Genentech’s counsel, to date, Genentech has produced 19,000+ documents in response to Plaintiff’s request for production. 

 

A motion for order compelling further responses shall set forth specific facts showing good cause justifying the discovery sought by the demand.  Code Civ. Proc. Sect. 2031.310(b)(1); Kirkland v. Sup.Ct. (Guess?, Inc.) (2002) 95 Cal.App.4th 92, 98.  To establish good cause, the burden is on the moving party to show both (a) relevance, and (b) specific facts justifying the discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). Glenfed Develop. Corp. v. Sup.Ct. (1997) 53 Cal.App.4th 1113, 1117.  Further, the Court may properly weigh whatever probative value the requested documents are likely to have against the cost, time, expenses and disruption of normal business likely to result from an order compelling the production. Volkswagen of America, Inc. v. Sup.Ct. (2006) 139 Cal.App.4th 1481, 1497.  The primary issue here is that Plaintiff seeks documents dated from long before the three months Plaintiff worked at Genentech to long after plaintiff worked at Genentech.  In part because the voluminous documents Genentech produced last week have not been reviewed, the Court finds that Plaintiff has not met his burden of establishing that the probative value of the requested documents outweighs the burden of a further production at this point.  Plaintiff can review the documents recently produced and assess whether additional documents are still needed.  This Order is without prejudice to Plaintiff’s right to file a further motion to compel, to the extent Plaintiff in good faith believes additional documents are needed after reviewing the recent production, notwithstanding the 45-day rule set forth in Code Civ. Proc. 2031.310. 

As to Group 2 (Requests for Production Nos. 6, 30-31, 35-39), the motion is GRANTED.  Code Civ. Proc. Sect. 2031.230 requires that a responding party provide a verified response that explains the responding party’s inability to comply.  An explanation provided in an unverified meet and confer letter, drafted by counsel, is insufficient.  Additionally, the wording in the letter was insufficient in complying with CCP 2031.230.  Genentech shall provide a further verified response that complies with Sect. 2031.230 within 10 days of this order.  

 

As to Group 3 (Requests for Production Nos. 10-16, 19-22) the motion is GRANTED–IN-PART and DENIED-IN-PART.  A request that Genentech produce “all emails” (including both “inbox/sent”) from 11 different individuals over a period of many months, un-narrowed by search terms, is overbroad.  While the dates need not necessarily be limited to the three months Plaintiff worked at Genentech, requesting “all emails” creates an undue burden by seeking a large volume of irrelevant documents.  Genentech represents that it offered to (1) produce all emails from Plaintiff’s account during his time at Genentech, (2) using certain search terms and dates, search the emails accounts of the 11 identified individuals and four others, and produce all non-privileged documents returned by that search.  See Opp. at 27-28.  If it has not already done so, Genentech shall conduct that search and produce those emails.  Any withheld documents shall be identified on a privilege log.  The motion is otherwise denied.  Plaintiff can review Genentech’s production and decide whether additional emails are still needed, and if so, make a properly narrowed request for them.    

 

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.

 



 

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16-CIV-02190     VIKRAM MEHTA vs. DANA MCMANUS, et al.

 

 

VIKRAM MEHTA                           DUSTIN COLLIER

Dana mcmanus                           john d. pernick

 

 

Motion to compel arbitration

TENTATIVE RULING:

 

Defendant Dana McManus’ Motion to Compel Arbitration is GRANTED.

Code of Civil Procedure secs. 1280 and 1281.2 require arbitration when: (1) there is an enforceable agreement to arbitrate and (2) the arbitration agreement covers the disputed claims.

 

Plaintiff concedes that both the AAA arbitration of the Santa Clara action against Kaazing, et al and this one concern the reasons for his termination and whether there was cause for that termination.

 

Plaintiff’s Employment Agreement with Kaazing contained an arbitration clause which requires Plaintiff to arbitrate, “any and all controversies, claims, or disputes with anyone (including … any … director, [or] stockholder … of the company in their capacity as such or otherwise) … arising out of, relating to or resulting from my employment … or [its] termination.”

 

Plaintiff’s defamation claim against Defendant McManus falls within the scope of that arbitration clause as to statements by a stockholder or director relating to his employment or termination.

 

The arbitration clause is neither unconscionable, nor fraudulent. Therefore, Plaintiff is ordered to arbitrate these claims against Defendant McManus and this case is stayed until arbitration is completed. Code of Civil Procedure sec. 1281.4.

 

Defendant’s Request for Judicial Notice in Support of Motion to Compel Arbitration or, in the Alternative, Stay Pending Arbitration is GRANTED.

 

Defendant’s Request for Judicial Notice in Support of Reply to Opposition to Motion to Compel Arbitration or, in the Alternative, Stay Pending Arbitration is GRANTED.

 

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, Defendant 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 Richard H. DuBois, Department 16.

 



 

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CIV511997     FIREMAN'S FUND VS. DOMINIQUE BLACK

 

 

FIREMAN'S FUND INSURANCE COMPANY        JEREMY SUGERMAN

DOMINIQUE BLACK                        PAUL J. SMOOT

 

 

Motion to compel depositions attendance and testimony

TENTATIVE RULING:

 

The Motion of Defendant & Cross-Complainant Dominique Black (“Black”) to Compel Deposition Attendance and Testimony of Janet Lutz, Clay Wiens, Jonathan Patino and Josephine Darza, is ruled on as follows:

 

The Motion as to Jonathan Patino is DROPPED as moot.  Black concedes that Patino’s deposition has already been taken and concluded, and Black withdraws his motion as to Patino. 

 

The Motion as to Janet Lutz, Clay Wiens and Josephine Darza (“deponents”) is DENIED.  Black failed to timely bring this motion to compel within “60 days after completion of the record of the deposition….”  (See C.C.P. § 2025.480(a).)  Completion of the record of the deposition occurs when the deposing party receives the objections to the deposition notice.  (See Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 136.)  The deposing party has 60 days thereafter to file a motion to compel, and this deadline is mandatory.  (Id.) 

 

Objections to these deposition notices were served in October 2016, but the parties involved then agreed to rescheduled dates for deposition. The 60-day period therefore did not begin to run.  However, the deponents then, again, objected to the depositions on January 4, 2017.  This started the 60-day period for bringing a motion.  Black did not file this motion until March 30, 2017.  As such, this motion is untimely because it was not brought within 60 days after completion of the record of deposition. 

 

Deponents’ objection no. 3 on this ground is SUSTAINED.

 

Deponents’ objection nos. 1 and 2 are OVERRULED.

 

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.

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CIV534203     JONATHAN MCDOUGALL VS. MANUEL SEDILLO, ET AL.

 

 

JANE DOE #1                            TODD P. EMANUEL

MANUEL SEDILLO-MESSER                  DAVID B. FISHER

 

 

4. motion to file records under seal

TENTATIVE RULING:

 

This matter is dropped from calendar to be resubmitted via ex parte application.

 

 

5. motion to seal records

Tentative ruling:

 

This matter is dropped from calendar to be resubmitted via ex parte application.

 

 

6. motion to seal records

Tentative ruling:

 

This matter is dropped from calendar to be resubmitted via ex parte application.

 

 

7. motion to seal records

Tentative ruling:

 

This matter is dropped from calendar to be resubmitted via ex parte application.

 

 

 



 

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CIV534457     SONIA ISHAC, ET AL. VS. LYNN HO TU

 

 

SONIA ISHAC                            ARA JABAGCHOURIAN

LYNN HO TU                             THOMAS J. MURRAY

 

 

Motion for leave TO FILE CROSS COMPLAINT

TENTATIVE RULING:

 

Defendant TU’s Unopposed Motion is granted.  The proposed cross-complaint arises from the same transaction or occurrence as the complaint.  CCP §428.10(b).

The proposed cross-complaint seeks declaratory relief regarding the damages resulting from the accident alleged in the complaint.  As a result, it arises out of the same transaction or occurrence.  As Tu points out, allowing the cross-complaint is in the interests of justice as it will permit resolution of all property damage claims in one action.  

The cross-complaint shall be filed and served within 10 days of this order.

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.

 



 

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CIV537913     DORIAN L. FREEMAN VS. MAXFIELD D. POMS

 

 

DORIAN LAMAR FREEMAN                   GARY B. ROTH

MAXFIELD DAVID POMS                    MARTIN T. SNYDER

 

 

Motion to submit tardy expert witness

TENTATIVE RULING:

 

The Motion to Submit a tardy expert disclosure is GRANTED but only as to the following experts:

 

Bret Andrews, D. O.

     Joshua David Hatch, M. D.

     Wai- Kiu Lee, M. D.

     George Railton, PT

     Wallace Bellamy, DMD

     Zaid Atazai, D. C.

 

Code of Civil Procedure section 2034.720 sets forth various matters that must be shown in order to allow a late expert disclosure. Plaintiff demonstrates all of the factors.

 

Defendants have not relied on the omission. Defendants recognized it immediately and brought it to Plaintiff’s attention; Defendants’ expert disclosure shows that they already know the names of the persons Plaintiff wishes to identify. Plaintiff’s motion is timely, and Defendants already know the identities of all 27 witnesses and that he failed to submit the missing information as the result of mistake, inadvertence, surprise, or excusable neglect. Allowing Plaintiff to supplement his disclosure, and by limiting the number of experts, will not cause undue prejudice.

 

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.

 

 



 

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CLJ534808     PORTFOLIO RECOVERY, ET AL. VS. MARIA M. MONTEVERDE

 

 

 

PORTFOLIO RECOVERY ASSOCIATES, LLC      ANTHONY DIPIERO

MARIA M. MONTEVERDE                    Pro/per

 

 

Motion re: for judgment on pleadings

TENTATIVE RULING:

 

The Motion for Judgment on the Pleadings is GRANTED.  The complaint states facts sufficient to constitute a cause of action and the answer does not state facts to constitute a defense.  CCP Section 438(c)(1)(A). 

 

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, Plaintiff is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim and a judgment for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order and judgment is to be submitted directly to Judge Richard H. DuBois, Department 16.

 



 

 

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 susan irene etezadi

Department 18

 

400 County Center, Redwood City

Courtroom 2L

 

Monday, April 24, 2017

 

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

 you must call (650) 261-5118 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

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16-CIV-01086     CANYON CAPITAL ADVISORS LLC, et al vs. ANTONIO R.

                     ALVAREZ, et al.

 

 

CANYON CAPITAL ADVISORS LLC             GRABLE, DAVID M

GOLDMAN SACHS & CO.

 

 

Complex Case Status Conference

TENTATIVE RULING:

 

This matter was removed to Federal Court in September of 2016, therefore the Complex Case Status Conference is continued for 90 days to July 25, 2017 at 9:00 a.m. on the Presiding Judge’s Law and Motion Calendar.

 

 

 



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CIV537393     DERIC WALINTUKAN VS. SBE ENTERTAINMENT, ET AL.

 

 

SBE ENTERTAINMENT GROUP, LLC            SEAN P. HANLE

DERIC WALINTUKAN                       LIONEL Z. GLANCY

 

 

Complex Case Status Conference

TENTATIVE RULING:

 

This matter was removed to Federal Court in March of 2016, therefore the Complex Case Status Conference is continued for 90 days to July 25, 2017 at 9:00 a.m. on the Presiding Judge’s Law and Motion Calendar.

 

 

 

 


 

 

 

 

 


POSTED:  3:00 PM

 

 

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