December 11, 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.

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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

 

Monday, December 11, 2017

 

TENTATIVE RULINGS

 

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-00180     ZEESHAN IRSHAD VS. MAXIM ABELEV, ET AL.

 

 

ZEESHAN IRSHAD                         PRO/PER

MAXIM ABELEV                           PRO/PER

 

 

PLAINTIFF’S MOTION TO VACATE DISMISSAL

 

·         DENIED. Plaintiff (Plt) Zeeshan Irshad’s unopposed Motion To Set Aside Default is Denied. Plaintiff ignores the fact that his case was dismissed for lack of timely prosecution of the case to finality with entry of a Default Judgment. Notably, Plt’s Motion is unaccompanied, even now, with the requisite Default Judgment package needed for such an application for entry.

 

·         This is a personal injury action arising from a car accident.  On June 20, 2017, hearing on an OSC re Dismissal was held.  Plt appeared and indicated he was going to request entry of def’s default.  As a result, the court continued the hearing to August 29, 2017.  The default was entered the next day.  However, Plt did not appear at the August 29th hearing.  The court noted that no judgment had been submitted and continued the hearing to October 17, 2017.  Plaintiff was ordered to appear in person.  He failed to do so and the case was dismissed.  Plt moves to set aside the dismissal.

 

·         Plt, who cites no authority, appears to be relying on CCP §473 (b)for relief from dismissal on grounds of mistaken belief that he was not required to appear at the hearing. However, Plt has not established that the dismissal was the result of mistake, surprise, inadvertence or excusable neglect.

 

·         Here, Plt is asserting a legal mistake.  The controlling facts for determining whether a mistake is excusable are: 1) the reasonableness of the misconception and the justifiability of the failure to determine the correct law.  Weil & Brown §5:315, citing Anderson v. Sherman (1981) 125 Cal.App.3d 228.  Plt fails to offer any facts to show that his mistaken belief he did not have to appear at the OSC hearing was reasonable nor that his failure to determine whether he needed to appear was justifiable. 

 

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.  

 



9:00

LINE: 2

17-CIV-00502    ANDREW YOUNG, ET AL. VS. DUKE PARTNERS II, LLC, ET AL.

 

 

ANDREW YOUNG                           MARC D. BENDER

DUKE PARTNERS II, LLC                  SAM CHANDRA

 

 

FAY SERVICING, LLC’S MOTION FOR SUMMARY OF JUDGMENT, OR ALTERNATIIVELY, FOR SUMMARY ADJUDICATION OF ISSUES

 

·         HEARING CONTINUED TO THURS. DEC 14, 2017 AT 9:00 AM. On its own Motion, and in the interests of appropriate judicial administration, this Motion by Defendant Fay Servicing, LLC is set over to Thursday December 14, 2017 at 9:00 am for Hearing on the Law & Motion Calendar, in Dept. 10, so that it may be heard at the same time as Defendant Duke Partners II, LLC’s separate Motion for Summary Judgment/Summary Adjudication of Issues.

 



9:00

LINE: 3

17-CIV-01257     WENDY BURTON VS. STELLER LABS, INC., ET AL.

 

 

WENDY BURTON                           CLAIRE E. COCHRAN

STELLER LABS, INC.                     MICHAEL A. LAURENSON

 

 

PLAINTIFF’S MOTION TO COMPEL RESPONSES AND FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS FROM DEFENDANTS STELLAR LABS, INC. AND DAVID FOX

 

·         GRANTED. Plaintiff Wendy Burton’s Opposed Motion To Compel Discovery is Granted. Defendants Stellar Labs, Inc. and David Fox, one of its corporate officers, shall respond to all outstanding interrogatories, document requests, and request for admissions as directed in the Order set forth below. Requested Sanctions, however, are Denied.

 

·         If any of the Parties requests a Hearing to contest this Tentative Decision, Counsel shall personally appear. No telephonic appearances. No “covering” counsel; only attorneys actually handling and fully conversant with the case.

 

·         This is a wrongful termination action brought by Plaintiff Ms. Burton against her former employer Stellar Labs and an officer of the company David Fox. Plaintiff alleges sex discrimination, hostile work environment, and wrongful termination.

 

·         In relation to her claim for discrimination, Plaintiff served interrogatories, request for admissions, and a request for documents. The Discovery requests at issue pertain to whether male executives received higher compensation than Plaintiff received. Specifically, the interrogatories and request for admissions inquired whether male executives were given stock (as Plaintiff had been promised). The document requests sought documents pertaining to various male executives’ “compensation packages.”

 

·         Defendant Stellar Labs and Defendant David Fox responded identically to all requests, asserting Objections asserting privacy rights of the non-party other employees and the company’s interests in protecting confidential proprietary information.

 

·         In this Court’s opinion, and I so find, the information sought is relevant to the subject matter of the litigation and also goes to the very heart of Plaintiff’s case that there was unlawful discrimination on a gender-biased basis.[1] The information sought is directly relevant and essential to determining the truth of the matters in dispute, such that the requirements of “particularized need” for the Discovery under Britt v. Superior Court (1978) 20 Cal.3d 844 [Tobriner, J.], have been met.

 

·         Also, the Court is of the opinion, and I so find, that the proposed Protective Order prepared by Defense Counsel and agreed to by Plaintiff will protect both individuals at the company from having their privacy rights violated, as well as the “confidential and proprietary information of the Company itself from appearing in public. Plaintiff has agreed to redactions of individual names and titles, which would ameliorate further complaints about third party privacy rights.

 

·         With the privacy and proprietary rights of the Defendants who are the focus of the Discovery so protected, the sought-after evidence of unequal treatment supports a finding of relevance of discovery into compensation packages of other male high-level executives at Stellar Labs that outweighs the countervailing privacy and confidentiality interests involved.

 

·         The Court also notes a reference in the motion papers and/or opposing papers representing that Plaintiff has agreed to a version of a Protective order prepared by Defendants in this case. The Protective order has been signed by Plaintiff’s Counsel and provided to Defendants, who have failed to countersign and submit the apparently stipulated form of Protective Order to the Court for approval.

 

·         As to requested Sanctions, the Court believes it would be inappropriate to assess monetary sanctions as against the Defendants themselves, and declines to do so.

 

 

ORDER:

·         Defendants’ Objections to providing substantive responses are Overruled. The Motion is Granted. Verified Responses to be provided without further Objections.

 

·         Defense Counsel are directed to execute and submit the stipulation to the agreed-upon form of Protective Order, submission to be made directly to Dept. 10 (Hon. Gerald J. Buchwald) within five (5) court days of Notice of Entry of this Order.

 

·         Defendants’ Verified Responses to be provided as follows:

 

1.   Defendant Stellar Labs shall serve verified further responses to Interrogatories 46, 61, 64, and 78 through 85. Defendant David Fox shall serve verified further responses to Interrogatories 119, 120, 121, 122, 127, and 128. Responses shall comply with Code of Civil Procedure section 2030.220

 

2.   Defendant Stellar Labs shall serve verified further responses to Request for Admissions 16 through 23, and 32. Responses shall comply with Code of Civil Procedure section 2033.220.

 

3.   Defendant Stellar Labs shall serve verified further responses to Request for Production of Documents 13, and 30 through 36. Defendant David Fox shall serve a verified further response to Document category 23. For purposes of actual production of documents, Defendants may produce documents with redaction of any information that would identify or tend to identify the person whose compensation information is produced.

 

4.   In providing further responses and production of documents, Defendants Stellar Labs and David Fox may do so in a manner that is consistent with the Stipulated Protective Order in this action.

 

5.   All verified further responses shall be served no later than December 22, 2017, or another date agreed in writing by the parties.

 

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



9:00

LINE: 4

17-CIV-02514     JACKIE KIM-CALLO VS. JEFFREY MARTINEZ, ET AL.

 

 

JACKIE KIM-CALLO                       CRAIG S. MILLER

JEFFREY MARTINEZ                       MICHAEL MENGARELLI

 

 

PLAINTIFF’S WRIT OF ATTACHMENT

 

·         GRANTED IN PART; OTHERWISE DENIED. Per Code Civ. Proc. Sect. 483.010 et. seq., Plaintiff Jackie Kim-Callo’s Application for a Right to Attach Order and a Prejudgment Writ of Attachment is GRANTED-IN-PART as to all four Defendants, jointly and severally, in the amount of $105,081.42, subject to the exemptions set forth below, and subject to Plaintiff’s proper completion of Judicial Council form AT-120, discussed below.  

 

 

·         This case arises from the four Defs’ purchase of Plaintiff’s restaurant (a Japanese restaurant called “Kobe”).  Defs. Jofreign Martinez, Jeffrey Martinez, Pei Wu, and Jin Wu (the “Defendants” and “Buyers”), long after purchasing the restaurant, now claim they were defrauded and are seeking to rescind the transaction.  Defs. have filed a Cross-Complaint against Plt. alleging “fraud” and “undue influence” against Plt.  Defs. Jofreign Martinez and Jeffrey Martinez both worked at the restaurant. 

 

·         Plaintiff seeks a Right to Attach Order (RTAO) and a pre-judgment Writ of Attachment, jointly and severally, as to all four Defendants.  

 

 

·         The Court finds that Plaintiff’s Application satisfies the requirements of Sect. 483.010(a), namely, (1) the claim upon which the attachment is based is one upon which an attachment may be issued (i.e., Defendants’ breach of the promissory note), (2) without deciding the ultimate merits of Plaintiff’s claim, and while Defendants have the right to litigate their Cross-Complaint seeking rescission of the promissory note due to alleged fraud and “undue influence,” Plaintiff has established the probable validity of her claim (see Code Civ. Proc. Sect. 481.190, “more probable than not…”), (3) the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based, and (4) the amount to be secured is greater than zero.  Code Civ. Proc. Sect. 483.090(a).  For purposes of this motion only, the Court finds it is more likely than not (Code Civ. Proc. Sect. 481.190) that Plaintiff, whether by dispositive motion or by trial, will prove the elements of her breach of contract claim. 

 

·         As to Defendants Jeffrey Martinez and Jin Wu, who are alleged to be mere investors in the restaurant, Defendants have not met their burden of demonstrating the claim does not “arise out of the conduct by the defendant of a trade, business, or profession.”  Code Civ. Proc. Sect. 483.010(c); Advance Transformer Co. v. Sup. Ct. (1974) 44 Cal.App.3d 127, 142; Nakasone v. Randall (1982) 129 Cal.App.3d 757, 764 (“trade, business, or profession” requirement refers to “one who spends his attention, time and effort in carrying on an activity for the purpose of livelihood or profit on a continuing basis”).  Defendant Pei Wu’s declaration states that her father, Jin Wu, “does not work at the restaurant” and “is only an investor.”  (Parag. 6).  Defendant Jin Wu has submitted no declaration.  Sect. 483.010(c) sets no maximum or minimum involvement in the business in order for a claim to “arise out of the conduct by the defendant of a trade, business, or profession.”  The evidence here does not sufficiently demonstrate the extent of Jin Wu’s involvement in the business.  Similarly, while Defendant Jeffrey Martinez’s declaration states he does not work at the restaurant and is a driver for Uber (Parag. 20), it does not sufficiently explain the extent of his involvement in the restaurant.  It does indicate that he was very involved in the purchase of the restaurant and the related due diligence.  See Code Civ. Proc. Sect. 484.070(g) (defendant claiming exemption has burden of proving the exemption applies).  Further, even if they are not directly involved in the restaurant’s operation, it is clearly an on-going business, and there is no indication Jeffrey Martinez and Jin Wu do not have a financial stake in its success.

 

 

·         The authorized Writ of Attachment in the amount of $105,081.42 consists of the following:

·         $73,305.57 (amount due under the Promissory Note, including late fees, see Kim-Callo Decl.).  Plaintiff’s request for interest is denied.  Plaintiff has not identified statutory authority authorizing interest, and the contract does not provide for interest.

·         $965.85 (costs incurred to date, see Sperandio Decl.)

·         $1,000 (anticipated future costs, see Sperandio Decl.)

·         $29,810 (attorney’s fees, as provided for in the promissory note, see Sperandio Decl., consisting of:(1) $10,560 (fees incurred to date (19.2 hrs. x $550/hr.); and (2) $19,250 (estimated future attorney’s fees (35 hrs. x. $550/hr.) (which the Court has reduced from the requested 44 hours).)

·         Exemptions.  In general, wages and other property “necessary for support” of defendant may be exempt from attachment.  Code Civ. Proc. Sect. 487.020. 

·         Defendants Jofreign Martinez’s and Pei Wu’s declarations state the restaurant is their “sole source of income,” which is confusing, because both declarations also state the restaurant is their “main source of income.”  Both declarations state that they have, in the past, “skipped taking a salary” from the restaurant when they could, but neither declaration identifies their salary/pay from the restaurant.  Pei Wu’s declaration states “I need to pay[] rent,” but does not identify the amount of rent.  Pei Wu claims monthly debts of at least $785 (plus rent in an unidentified amount); Jof. Martinez claims monthly debts of at least $1,672 (including rent).  The Court finds the following to be EXEMPT from attachment:

·       As to Defendant Pei Wu, $1,785 (assuming $1,000 for rent) in monthly pay/salary from the restaurant, per Code Civ. Proc. Sect. 487.020(b);

·       As to Defendant Jofreign Martinez, $1,672 in monthly pay/salary from the restaurant, per Code Civ. Proc. Sect. 487.020(b);

·       All of the furniture, fixtures, equipment, and inventory of the restaurant, which appear to be necessary to its continued operation (Code Civ. Proc. Sect. 703.510, 704.060(a)(1), and 487.020(b)).

·       The claimed exemption under Code Civ. Proc. Sect. 704.070(b)(2) is DENIED.

·       This Order is contingent on Plaintiff first filing an undertaking in the amount of $10,000 (Code Civ. Proc. Sect. 484.090; 489.210; 489.220), and preparing an Order on Judicial Council form AT-120 for the Court’s signature.  The form AT-120 shall be consistent with this Order, and shall identify the exemptions set forth herein.  For each item of property Plaintiff seeks to attach, the AT-120 form shall specifically identify the applicable section of Code Civ. Proc. Sect. 487.010 authorizing attachment of each specific item of property.

 

·       Objections:

 

 

·       Defendants’ objection to the Decl. of Jin Ko (“Objection No. 1”) is SUSTAINED.  Evid. Code Sect. 702(a).

 

·       Defendants’ objections to the Decl. of Plaintiff Jackie Kim-Callo are ruled upon as follows:

·         Obj. No. 1 (Par. 55).  SUSTAINED on grounds the claimed initials are not legible.  The declaration filed with the Court also appears to mistakenly include an “Exhibit S” rather than what, it appears, is intended to be an Exhibit D.  The declarant’s characterization of the meaning of the claimed initials is also improper.  Evid. Code Sect. 702(a).

·         Obj. No. 2 (Par. 60).  SUSTAINED.  Evid. Code Sect. 1200.

·         Obj. No. 3 (Par. 61).  SUSTAINED as to the first sentence of the Paragraph.  Evid. Code Sect. 1200.

·         Obj. No. 4.  OVERRULED.

·         Obj. No. 5.  SUSTAINED.  Evid. Code Sect. 1200.

·         Plaintiff’s objections to the Decl. of Jeffrey Martinez are OVERRULED, except for the following: 

·         Parag. 9.  OVERRULED as to the sentence:  “He told us that the way to do it was to show no profit and to hide money to eliminate taxes.”  SUSTAINED as to the remainder.  Evid. Code Sect. 1200.

·         Parag. 10.  SUSTAINED.  Evid. Code Sect. 1200.

·         Parag. 12.   SUSTAINED as to the second sentence.  Evid. Code Sect. 1200.

·         Parag. 13.   SUSTAINED.  Evid. Code Sect. 1200.

 

·         Plaintiff’s objections to the Decl. of Jofreign Martinez are OVERRULED, except for the following: 

·         Parag. 4.  SUSTAINED as to the sentence:  “When I asked him if he knew how much she was asking, he said around $300,000.”  Evid. Code Sect. 1200.  

·         Parag. 11.  SUSTAINED.  Evid. Code Sect. 1200.

·         Parag. 16.  SUSTAINED.  Evid. Code Sect. 1200.

·         Parag. 20.  SUSTAINED as to the statements by Jin Ko.  Evid. Code Sect. 1200.

·         Parag. 22.  SUSTAINED as to the first sentence only.  Evid. Code Sect. 1200.

·         Parag. 28.  SUSTAINED.  Evid. Code Sect. 1200.

·         Parag. 37.  SUSTAINED as to Jin Ko’s statements.  Evid. Code Sect. 1200; SUSTAINED as to the statement: “I now believe …”  (Speculation). 

 

·         Plaintiff’s objections to the Decl. of Pei Wu are OVERRULED, except for the following: 

·         Parag. 3.  SUSTAINED only to the extent the underlying statements have been ruled upon as hearsay.  Evid. Code Sect. 1200.

 

 

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

 



9:00

LINE: 5

17-CIV-02878     ARIEL R. VS. GARRY STEPHEN CHOW, ET AL.

 

 

GARRY STEPHEN CHOW                     PRO/PER

ARIEL R                                MICHAEL D. HERMAN

 

 

PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS AND REQUEST FOR MONETARY SANCTIONS

 

·         GRANTED. The Motion to Compel Further Discovery brought by Plaintiff Ariel R. is granted. Discovery shall be had subject to an appropriate Protective Order restricting disclosure to the Counsel and Parties in this case.  The Court declines to issue sanctions on the ground that defendant Allied Barton Security Services, LLC opposed the Discovery with “substantial justification.”  Code Civ. Proc. § 2031.310(h).

 

·         Counsel for both parties are Ordered to Meet and Confer to discuss appropriate language for a protective order and craft an appropriate protection for the privacy interests defendant Garry Chow has in his personal employment history. Counsel to Personally Appear at the Law & Motion Ex Parte Calendar on Tuesday December 12, 2017, at 2:00 pm to jointly submit the form of Protective Order to the Court.

 

·         This is a sexual assault case against a private security officer who worked on site at a Hospital, and who – under alleged false pretenses that he was a doctor at the hospital and related false pretense of being a modeling agent – lured the Plaintiff into a makeshift-pretend medical examining room and sexually assaulted her. This crime was carried on with the use of fake identification badges and access to the Hospital rooms which Defendant had as part of his job. The Defendant was convicted of criminal assault and sentenced as a sex offender. This civil case followed. Recovery is also sought against the Defendant’s employer.

 

·         Meet and Confer.  A motion to compel further responses to a demand for documents must be accompanied by a meet and confer declaration.  Code Civ. Proc. § 2031.310(b)(2).  Here, while the meet and confer efforts appear to be somewhat disjointed, they nonetheless occurred and were sufficient.

 

·         Merits of Motion.  Despite making several objections, the only two objections that are raised by the Allied Security in the briefing are: (1) the third party right of privacy (i.e. the right to privacy in one’s employment history), and (2) relevance.  Those objections are somewhat intertwined here because relevance comes into play when balancing the interests that are sufficient to overcome a privacy interest, so they will be addressed together below.

 

·         Allied Security relies heavily on Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 528-530, for the proposition that it has a duty to protect Chow’s employment information and does not have the authority to agree to a stipulated protective order.  However, the very recent California Supreme Court case of Williams v. Superior Court (2017) 3 Cal.5th 531, expressly disapproved a line of cases to which Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516 belongs.  Williams v. Superior Court (2017) 3 Cal.5th 531, 557, fn. 8.  Instead, Williams held that a party seeking discovery of private information need not always establish a compelling state interest or compelling need.  Williams recites the test established in Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35, which established a framework for evaluating potential invasions of privacy, as follows:

 

1. The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious;

 

2. The party seeking information must raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy;

 

3. A court must then balance these competing interest.

 

Williams, supra, 3 Cal.5th at 552 (citation omitted).  In Williams, the California Supreme Court held that not every privacy interest is of such a serious need that only a “compelling interest” can override it.  Instead, the analysis places a burden on the party seeking to establish the privacy interest to show how serious that interest is.  If it is sufficiently serious, then only a compelling interest can override it, but if it is of a lesser nature, a lesser interest can override it.  The Williams opinion ended with an acknowledgment that, in exercising their discretion, trial courts “should keep in mind that the Legislature has suggested that, where possible, the courts should impose partial limitations rather than outright denial of discovery.”  Williams, supra, 3 Cal.5th at 559, quoting Greyhound Corp. v. Superior Court, supra, 56 Cal.2d 355, 383. 

 

·         In the instant case, the privacy right asserted is that of an employee seeking to protect the privacy of the information contained in his employment records.  Unlike other cases where mere contact information of employees is sought for purposes of either contacting those employees to ask questions or to join those employees as members of a class, the invasion here is much more serious because it goes to private personnel records such as discipline, mental health issues, behavior, etc. that were recorded during the course of defendant Chow’s employment with Allied Security. 

 

·         On the other hand, the case being brought here is one for negligence, negligent hiring, negligent failure to supervise, and negligent retention of an employee who abused the powers of his employment to commit sexual assault.  That is a serious interest.  Though Allied Security attempts to differentiate itself on the ground that defendant Chow was not its employee during the time of the incident, there appears to have been an intertwined relationship between the Hospital that employed defendant Chow and Allied Security, which was a private security company that allegedly contracted with the Hospital, that previously employed defendant Chow, and that supplied some of the other security officers who worked under defendant Chow in his position as “Head of Security” for the Hospital.  Plaintiff has therefore demonstrated a compelling need.

 

·         On balance, the information sought is discoverable; the countervailing invasion of privacy considerations can be adequately protected by Protective Order and, as such, are outweighed by the compelling need for the Discovery being sought.   

 

·         The Insurance Request.  The parties do not offer significant argument regarding the insurance interrogatory, though it is included among those to which Allied Security objected.  Notably, the Form Interrogatories drafted by the Judicial Council allow inquiry into insurance.  See Form Interrogatories, Form DISC-001, Questions 4.x.  As such, the objection to producing insurance information does not have merit.

 

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

 



9:00

LINE: 6

17-CIV-03480     ALEXANDER MAYER, ET AL. VS. DAVID KONG, ET AL.

 

 

FAITH JARIN NUT                        CHRISTIAN P. FOOTE

DINA WOO                               JAMES L. HAND

 

 

DINA WOO AND DAVID KONG’S MOTION TO BE RELIEVED AS COUNSEL

 

·         GRANTED. Defense Counsel James Hand’s Motion To Be Relieved As Counsel is Granted. Absent any objection from the client Defendant Dina Woo, the Court intends to sign-off on the Judicial Council-approved form of Order (Form MC-053) approving Mr. Hand’s withdrawal from the representation.

 

·         In this case claim is made against Mr. Hand’s client Ms. Woo for alleged disruption, by a course of civil harassment conduct, of the Plaintiffs Mayer and Faith’s business. Ms. Woo and the Plaintiffs share common areas of rented premises under a long-term commercial lease. To date, Mr. Hand has been Ms. Woo’s litigation counsel in the matter.

 

·         Upon review of the Attorney’s motion papers and the client Ms. Woo’s filing, styled as a “Declaration” but not sworn with a compliant oath, the Court is of the opinion, and I so find, that there has been an irremediable breakdown in the Attorney-Client relationship. There is clear and convincing evidence that serious frictions have developed between Ms. Woo and Mr. Hand, including an allegation by Ms. Woo that Mr. Hand is not faithfully representing her interests.

 

·         In this case, counsel has used all the required forms and has provided proof that they were served on his client and all other parties to the action.  His declaration provides a factual basis for withdrawal which is corroborated by Ms. Woo’s own statement that she no longer trusts him. 

 

·         If the tentative ruling is uncontested, it shall become the Order of the Court and the Court will execute the submitted form of Order Relieving Counsel. Thereafter, Mr. Hand shall provide the required written notice of the ruling to all parties who have appeared in the action, including his client.

 

 
9:00

LINE: 7

17-CIV-05346     ANDREW KIM VS. SHS CONSTRUCTION

 

 

ANDREW KIM                             PRO/PER

SHS CONTRUCTION                        PRO/PER

 

 

PLAINTIFF’S MOTION FOR ORDER ON PETITION FOR RELEASE OF PROPERTY FROM LIEN

 

·         OFF-CALENDAR FOR LACK OF JURISDICTION. Mr. Andrew Kim’s unopposed Petition For Release Of Property From Lien is Ordered Off-Calendar because the Court is currently without jurisdiction to act on the matter.

 

·         On August 3, 2017, Respondent SHS Construction recorded a lien against the real property located at 51 Eastlake Ave. in Pacifica.  The property owner, Andrew Kim, petitions for an order releasing the property from the lien on the grounds that respondent failed to file a timely foreclosure action. The petition indicates that respondent has failed to file a foreclosure action and the time to do so has expired.  Despite petitioner’s written demand on November 9, 2017, respondent has refused to release the lien. 

·         Petitioner has failed to sign verification of the Petition, and therefore it is not verified as required by Civil Code, Section 8484. Also, there is no showing in the Proof of Service that the Petition and Notice of Hearing were served on SHS Construction by certified mail, return receipt requested as is required by Civil Code, Section 8486. Accordingly, the Court is without jurisdiction to rule on the Motion at this time.

   

·                                                                                                                                                                       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.  

 

 

 


 

 

 

9:00

LINE: 8

CIV535206     SUPERSHUTTLE, ET AL. VS. SERGUI VULPE, ET AL.

 

 

SUPERSHUTTLE INTERNATIONL, INC.         STEVEN C. RICE

SERGUI VULPE                           LAWRENCE D. MURRAY

 

 

RESPONDENT’S MOTION TO VACATE ARBITRATOR’S AWARD

 

·         HEARING REQUIRED. Counsel Must Personally Appear. No Telephonic Appearances. No “Covering” Counsel.

 

·                           Petitioner SuperShuttle International, Inc. (“SuperShuttle”) filed this action seeking to compel arbitration after five SuperShuttle drivers filed claims with the Labor Commissioner seeking payment of wages, overtime and recoupment of other expenses for gas and bridge fares. 

 

·                           After a hearing on SuperShuttle’s petition to compel arbitration on November 16, 2015, the court granted the petition, including finding that the delegation clause was not unconscionable and therefore the issue of whether the arbitration clause itself is enforceable was delegated to the arbitrator.  (See Plaintiff’s counsel’s Lawrence Murray’s Decl., Exh. 6.)

 

·                           The court also granted the petition in the cases involving the other four SuperShuttle drivers, San Mateo Superior Court Case nos.:

 

535204    SuperShuttle v. Aysov

535205    SuperShuttle v. Olagov

535207    SuperShuttle v. Viner

535208    SuperShuttle v. Gotsiridze

 

·         The parties proceeded to arbitration before Bruce Belding (“Arbitrator”) regarding whether the arbitration provision is unconscionable.  On September 11, 2017, the Arbitrator issued an “Order Enforcing Arbitration Clause As Conscionable” (hereinafter “Arbitrator’s Order”), and ordered that Respondent Serge Vulpe’s (“Respondent”) claim proceed to arbitration.

 

·         Counsel To Be Prepared To Address The Following Issues:

 

·         Please clarify whether or not Arbitrator Belden’s Order applies in the other four cases listed above, and also inform this Court as to whether or not there is pending any other Motion To Vacate substantially similar to this case?

 

·         In determining whether or not the Arbitration clause should be applied to this dispute, did the Arbitrator fail to comply with the Court’s (Judge Elizabeth Lee’s) prior Order of reference filed Dec. 23, 2015?

 

·         If so, does the Arbitrator’s alleged non-compliance with the Court’s Order of reference amount to a material denial of due process?

 

·         As a matter of law, would such a denial of due process constitute the obtaining of an Arbitrator’s Order by “undue means” under CCP, Section 1286.2 (1) that renders Arbitrator Belden’s Order invalid?

 

·         In that regard, this Court notes that the statutory grounds of “…undue means…” is set forth in the disjunctive: “…The award [here Order] was procured by corruption, fraud, or other undue means…” [emphasis added]. And, arguably, “undue means” does not require any finding of fraud or corruption on the part of the Arbitrator. The Court also notes that there is little or no appellate case law that has ever defined what constitutes such “other undue means”.

 

·         If Arbitrator Belden’s Order making the threshold jurisdictional finding that the Arbitration clause should be applied to the Parties’ dispute was obtained by ”other undue means” under CCP, Section 1286.2 (1), what is the remedy? E.g., should this Court vacate and set aside its prior Order of reference as is requested by the pending Motion?

 

·         Alternatively, in ruling on this Motion, should this Court also consider whether or not its prior Order of reference should be vacated on the grounds that the Parties’ Arbitration clause, that includes the threshold jurisdictional issue of whether or not the Arbitration clause should be applied to the Parties’ dispute, is an unlawful delegation of Judicial power to a private person? And what appellate case law has specifically approved the inclusion of that threshold jurisdictional issue into a private binding Arbitration agreement?

 

·         If Counsel should need to refer to appellate case authorities not already in their briefs, you have leave to do so provided that a list of citations for those cases is furnished to the Court and opposing Counsel at the outset of the Hearing.

 



9:00

LINE: 9

CIV535828     NORTHERN CALIFORNIA MEDICAL ASSOCIATES, INC. VS.

                  UNIVERSITY HALTHCARE ALLIANCE

 

 

NORTHERN CALIFORNIA MEDICAL ASSOCIATES, INC. JOHN D. FREED

UNIVERSITY HALTHCARE ALLIANCE               DANIEL S. KUBASAK

 

 

PLAINTIFF’S MOTION TO STRIKE OR TAX COSTS IN THEIR ENTIRETY

 

 

HEARING REQUIRED.

 

  • The Court needs to give this Motion some further review, and is not in a position to post a Tentative Decision at this time due to a conflicting afternoon calendar in the Court’s Appellate Division, on which he is one of the three-judge court.  The Court (Hon. Gerald J. Buchwald) will have a ruling on this matter at the time of Hearing.

 


 

 

 

 

 


POSTED:  3:00 PM

 



[1] The Complaint does not allege disparate compensation based on sex, but it alleges “discrimination” broadly. The Complaint lists various examples of disparate treatment, but the complaint specifically states that the claim is not limited to those examples. Its allegations of discrimination are clearly broad enough to include sex discrimination in the workplace.

 

 

© 2017 Superior Court of San Mateo County