September 29, 2016
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 jonathan e. karesh

Department 20

 

400 County Center, Redwood City

Courtroom 8C

 

Monday, September 26, 2016

 

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

 

 

 

 

 

 

 

 

9:00

Line: 1

16-CIV-00584     DEUTSCHE BANK NATIONAL TRUST COMPANY VS. RANDY A. SPOONER

 

 

DEUTSCHE BANK NATIONAL TRUST COMPANY DEAN R. PROBER

RANDY A. SPOONER

 

HEARING ON DEMURRER

TENTATIVE RULING:

 

The Demurrer of Defendant Randy A. Spooner (“Defendant”) to the Complaint of Plaintiff Deutsche Bank National Trust Company (“Plaintiff”), is OVERRULED.  Defendant contends that Plaintiff’s claims for breach of contract and money lent fail to state facts sufficient to support these claims.  Specifically, Defendant asserts these claims are barred by the four-year statute of limitations under Code of Civil Procedure section 337 because the foreclosure sale occurred in 2008, and Plaintiff did not file this action until 2016. 

 

The Complaint however, seeks to recover for breach of the note, and alleges that the breach in payments did not occur until August 1, 2012.  (See Comp. ¶ 10.) For purposes of demurrer, the court accepts all material facts properly pleaded as true.  (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.)  It appears that a creditor may bring an action to realize the security or sue on the note or both; the note is an independent undertaking by the debtor to pay.  (Roseleaf Corp. v. Chierighino (1963) 59 Cal.2d 35.)  Thus, accepting Plaintiff’s allegation as true that the breach on the note did not occur until August 1, 2012, these claims on their face do not appear to be time barred.

 

Defendant shall file and serve an answer to the Complaint within ten days service of the notice of entry of order.

 

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, prevailing party 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 Jonathan E. Karesh, Department 20.

 

 



9:00

Line: 2

16-UDL-00202     BAYHILL LOUNGE, INC. VS. MARK CASSIDY

 

 

BAYHILL LOUNGE, INC.                  Pro/PER

MARK CASSIDY                          Pro/PER

 

MOTION TO QUASH

TENTATIVE RULING:

 

The Motion of Defendant Mark Cassidy (“Defendant”) to Quash Service of Summons and to Set Aside Entry of Default Judgment, or, in the alternative, Motion to Set Aside and Vacate Default Judgment under CCP § 473, is ruled on as follows:

 

Defendant’s motion to quash service of summons is DROPPED.  Once a default has been entered, the court lacks jurisdiction to consider any motion other than a motion for relief from default.  (See W.A. Rose Co. v. Mun. Ct. (1959) 176 Cal.App.2d 67, 71.) 

 

However, Defendant’s motion in the alternative, to set aside and vacate the default and default judgment, is GRANTED based on a finding of mistake and/or excusable neglect by Defendant.  (See C.C.P. § 473(b).) 

 

The default and default judgment entered on August 25, 2016 are hereby SET ASIDE and VACATED.

 

The writ of possession entered on August 25, 2016 is hereby QUASHED and RECALLED.  The clerk shall notify the sheriff’s office of this order.

 

Further, the court on its own motion STRIKES Plaintiff’s Complaint with leave to amend.  (See C.C.P. § 436(b).) Plaintiff’s Complaint identifies Plaintiff as a corporation, but the Complaint was filed by Donna Curusis, who does not appear to be an attorney.  “A corporation cannot represent itself in court, either in propria persona or through an officer or agent who is not an attorney.”  (Merco Constr. Engineers, Inc. v. Mun. Court (1978) 21 Cal.3d 724, 729.) 

 

Accordingly, Plaintiff has until October 14, 2016 to file and serve an amended Complaint by an attorney on behalf of Plaintiff.

 

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, prevailing party 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 Jonathan E. Karesh, Department 20.

 

 



9:00

Line: 3

CIV519116     JIAHUA KEN LEE, ET AL. VS. CECILIA GOYONECHE, ET AL.

 

 

JIAHUA KEN LEE                        HA T. NGUYEN

CECILIA GOYONECHE                     ANTHONY F. VENTURA

 

 

MOTION FOR LEAVE TO INTERVENE

TENTATIVE RULING:

 

The matter is ordered off calendar because the case was conditionally settled on September 19, 2016.

 

 



9:00

Lines: 4,5,6 & 7

CIV531711     DOUGLAS LEE, ET AL. VS. CHRISTOPHER HARTMAN, ET AL.

 

 

DOUGLAS LEE                           EDWARD EGAN SMITH

CHRISTOPHER HARTMAN                   JOSEPH C. MCGOWAN, JR.

 

 

MOTIONS FOR SUMMARY JUDGMENT/ADJUDICATION OF ISSUES

TENTATIVE RULING:

 

 

Pursuant to CCP §128 and the press of the court’s calendar, the court continues the four motions for summary judgment/summary adjudication in this matter as follows:

 

The motion by defendant Hartman for summary judgment/summary adjudication and the motion for summary adjudication by cross-defendants Lee and Tang to the cross-complaint by Hartman are continued to October 3, 2016 to be heard in the Law and Motion Department at 9 AM.

 

The motion by cross-complainant Fidelity National for summary judgment/summary adjudication and the motion for summary adjudication by cross-defendants Lee and Tang to the cross-complaint by Fidelity National are continued to October 5, 2016 to be heard in the Law and Motion Department at 9 AM.

 

 



9:00

Line: 8

CIV534101     CALIFORNIA STATE TEACHERS' RETIREMENT SYSTEM VS. LORI

                 HERNANDEZ HAFFNER

 

 

CALIFORNIA STATE TEACHERS' RETIREMENT SYSTEM      CAROLYN O. TSAI

HAFFNER, LORI HERNANDEZ                         GREGORY J .RUBENS

 

 

MOTION FOR SUMMARY ADJUDICATION OF ISSUES

TENTATIVE RULING:

 

Plaintiff’s motion for summary adjudication as to the fourth cause of action is denied. Plaintiff concedes that damages is an element of the claim and that Plaintiff’s motion fails to establish an amount of damages.

 

Plaintiff’s motion as to the first and third causes of action is denied. Plaintiff’s Supplemental Brief focuses narrowly on the word “damages,” but disregards what Plaintiff actually seeks, which is a judgment for money. The subrogation claims do not seek a judgment that merely adjudicates Plaintiff’s subrogation rights. Rather, they seek a judgment that directs Defendant to pay an amount of money. (Complaint para. 27 (“section 24500 entitles CalSTRS to an amount equal to … monies paid and payable”); para. 46 (“Court should order Ms. Hernandez Haffner to compensate CalSTRS”); Prayer para. 1 (“for restitution and damages”).) A judgment that merely establishes liability but does not compel Defendant to pay money to Plaintiff is incomplete. Plaintiff seeks compensation that must be proved.

 

Plaintiff’s argument that it does not seek damages is undermined by its own motion. Plaintiff’s Notice of Motion states that one ground for the motion is that defendant is liable “for damages.” (Notice of Motion at 2:10-17.) The Notice specifies that “damages” will be adjudicated later. (Id at 3:3-4.) Finally, Plaintiff has proposed an order that specifies “damages” to be proved later. (Proposed Order Granting Motion for Summary Adjudication at 2:10-12) Case law provides that “damages” are an element of equitable subrogation. (Am. Safety Indem. Co. v. Admiral Ins. Co. (2013) 220 Cal. App. 4th 1, 8.)  Plaintiff fails to address this rule.

 

The cases cited in Plaintiff’s Supplemental Brief are unpersuasive. The case of People v. Superior Court of Los Angeles (2015) 234 Cal.App.4th 1360 explained that civil penalties need not be proved for summary adjudication because they are not an element of the cause of action. Plaintiff argues that just as penalties are not damages, “restitution” also is not damages and need not be proved.  The argument is unpersuasive because the restitution Plaintiff seeks is more akin to damages than a penalty. 

 

Damages compensate  a victim whose rights have been invaded by one who owed a duty to that person. (People v. Superior Court of Los Angeles, supra, at  1376–77.) The Court noted that “the two monetary awards serve different purposes.” (Id. at 1383.) Damages are to compensate the plaintiff, whereas penalties are to punish the wrongdoer. The money Plaintiff CalSTRS seeks from Defendant is not punishment; it is to compensate Plaintiff for amounts paid and to be paid for Defendant’s disability. For this reason, the Los Angeles case does not support a conclusion that reimbursement is not an element of subrogation.

 

The other cases cited by Plaintiff are inapplicable. The plaintiff in Kendall v. Walker (2009) 181 Cal.App.4th 584 was not required to prove damages because the claims were for injunctive relief, not damages. The plaintiff in Linden Partners v. Wilshire Linden Assoc. (1998) 62 Cal.App.4th 508 moved for summary adjudication of duty, which the statute expressly authorizes without requiring proof of damage. (Code of Civ. Proc. Sect. 437c(f) (summary adjudication of duty permissible “if it completely disposes of a cause of action . . . or an issue of duty”).)  Plaintiff violates the California Rules of Court by citing Williams Communications v. Lazar. (CRC Rule 8.1115(a) (parties may not cite unpublished opinions).)  Regardless, Williams Communications is inapplicable for the same reason as Linden Partners (motion to adjudicate duty only).)  

 

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, prevailing party 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 Jonathan E. Karesh, Department 20.

 



9:00

Line: 9

CIV536356     LAURA A. BRYAN VS. QUENTIN COPPER, ET AL.

 

 

LAURA A. BRYAN                        LAURA A. BRYAN

QUENTIN COOPER

 

 

HEARING ON DEMURRER

TENTATIVE RULING:

 

The Demurrer of Defendants Quentin Cooper, Lee Altschuler and Elizabeth Capdevielle (“Defendants”) to the First Amended Complaint of Plaintiff Laura A. Bryan (“Plaintiff”) is CONTINUED to 9:00 a.m. on October 24, 2016 in the Law and Motion Department.  Defendants failed to file a declaration as required by Code of Civil Procedure section 430.41(a)(3) showing that the parties met and conferred, in person or by telephone, for the purpose of determining whether an agreement could be reached to resolve the objections to be raised in the demurrer.

 

Defendants are required to file, no later than 7 days prior to the new hearing date, a Code-compliant declaration stating either: (1) the parties have met and conferred in person or by telephone and (a) the parties have resolved the objections raised in the demurrer, which shall be taken off calendar or (b) the parties did not reach an agreement resolving the objections raised in the demurrer; or (2) the party who filed the pleading subject to demurrer failed to respond to the meet and confer request or otherwise failed to meet and confer in good faith.  If Defendants fail to file and serve a declaration demonstrating compliance with the requirements of section 430.41, the Demurrer will be stricken as procedurally improper.

 

 



9:00

Line: 10

CIV537691     AMBER LAUREL BAPTISTE VS. MICHAEL LEWIS GOGUEN

 

 

MICHAEL LEWIS GOGUEN                  DIANE M. DOOLITTLE

AMBER LAUREL BAPTISTE                 PATRICIA L. GLASER

 

 

MOTION  TO CORRECT THE COURT REPORTER'S ERROR IN MARKING THE TRANSCRIPT OF PLAINTIFF’S DEPOSITION

TENTATIVE RULING:

 

Defendant’s unopposed motion to correct the court reporter’s error, pertaining to the confidentiality designations in Plaintiff’s deposition transcript, is GRANTED-IN-PART and DENIED-IN-PART.  Section 8(a) of the Protective Order states in part that “[t]he burden of demonstrating that the information is entitled to protection shall at all times be and remain on the designating party.” 

 

Plaintiff represented to Defendant’s counsel prior to this motion being filed that she does not agree to changing the confidentiality designations on her deposition transcript, but she has not opposed this motion.  Plaintiff’s counsel is also aware of this motion and apparently indicated to Defendant’s counsel he intended to file an opposition brief, but has not done so. 

 

It appears no party ever requested that Plaintiff’s deposition transcript be marked “HIGHLY CONFIDENTIAL-ATTORNEY’S EYES ONLY” (AEO) in its entirety, but rather, the reporter appears to have done that on her own initiative. 

 

At the deposition, Plaintiff’s counsel requested that certain testimony be covered by the Protective Order, but the portions of the testimony that request applies to is somewhat unclear.  The Court has not been provided the entirety of the transcript. 

 

The Court finds that maintaining the “HIGHLY CONFIDENTIAL-ATTORNEY’S EYES ONLY” designation for the entire transcript is unfair because it prevents Defendant from reviewing it, despite his having already attended most of the deposition.  And according to Defendant, Plaintiff has never objected to Defendant reviewing any portion of the transcript. 

 

Accordingly, the Court orders that the transcript shall be re-designated as “CONFIDENTIAL,” thus enabling Defendant to review it.  The Court denies the Defendant’s request to have pages 264:23-265:2 remain “HIGHLY CONFIDENTIAL-ATTORNEY’S EYES ONLY,” as it cannot ascertain the bases for the request. The remainder of This Order is without prejudice to either party requesting further changes to the confidentiality designations, should they deem it necessary.  The parties shall handle the logistics of having the transcript re-designated pursuant to this Order.  

 

 

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 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 Jonathan E. Karesh, Department 20. 

 

 



9:00

Line: 11

CIV538294     WINDES, INC. VS.  WORLDWIDE ENERGY AND MANUFACTURING

                USA, INC.

 

 

WINDES, INC                           JAMES R. SELTH

WORLDWIDE ENERGY AND MANUFACTURING USA, INC.   JEHU HAND

 

 

MOTION TO COMPEL PLAINTIFF’S RESPONSE TO DEMAND FOR PRODUCTION & REQUEST FOR SANCTIONS

TENTATIVE RULING:

 

Defendant Worldwide Energy and Manufacturing USA, Inc.’s Motion to Compel Plaintiff’s Response to Demand for Production is DENIED because it is untimely, as it was not filed within 45 days of the allegedly deficient responses.  CCP sec. 2031.310(c). This deadline is jurisdictional.

 

The parties’ requests for sanctions are DENIED.

 

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, prevailing party 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 Jonathan E. Karesh, Department 20.

 


 

 

 

 

 


POSTED:  3:00 PM

 

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