March 4, 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 JOSEPH C. SCOTT

Department 25

 

400 County Center, Redwood City

Courtroom 2G

 

Thursday, February 26, 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.

 

N.B. 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 440930       MIKE ROSEN, ET AL. VS. LEGACY QUEST, ET AL.

 

 

MIKE ROSEN                            PRO/PER

LEGACY QUEST                          BRADLEY KASS

 

 

PETITION ON THIRD PARTY CLAIM FILED BY STEPHANIE ROSEN

 

 

·         Off calendar at the request of the petitioning party.

 

 

_____________________________________________________________________

9:00

2

CIV 512814       KASHIWA FUDOSAN AMERICA, INC. VS. SAMUEL H. WONG &

                   COMPANY, ET AL.

 

 

KASHIWA FUDOSAN AMERICA, INC.         TODD A. ROBERTS

SAMUEL H. WONG & COMPANY LLP          DANIEL BERKO

 

 

MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT BY KASHIWA FUDOSAN AMERICA, INC.

 

 

  • Although it appears from Plaintiff's reply brief that an Opposing Memorandum of Points and Authorities was served upon Plaintiff, no such opposition was filed with the Court.  Court records indicate that the only document filed was the Request for Judicial Notice in Opposition to the Motion.  The hearing is continued to March 10, 2015 at 9:00 a.m. in the Law & Motion Department. Defendant is directed to file a copy of the Opposing Memorandum of Points and Authorities by March 2, 2015.

 

  • 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.

 

 

_____________________________________________________________________

9:00

3

CIV 517001       GENE CONDON VS. DALAND NISSAN, INC., ET AL.

 

GENE CONDON                           ALEXANDER A. GUILLEN

DALAND NISSAN, INC.                   DAVID R. SIDRAN

 

 

PETITION TO CONFIRM CONTRACTUAL ARBITRATION AWARD BY GENE CONDON

 

 

 

  • Plaintiff/Petitioner GENE CONDON’s Petition to Confirm Arbitration Award is CONTINUED to March 27, 2015.  Although Defendants’ Response references arguments made in Plaintiff’s Memorandum of Points and Authorities in support of the Petition, no such document was filed with the Court.  Plaintiff is therefore ordered to file his supporting memorandum no later than March 6, 2015.  Since a copy was obviously timely served on Defendants, no prejudice exists in continuing the hearing, and no further briefing by the parties will be permitted.

 

  • 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.

 

 

_____________________________________________________________________

9:00

4

CIV 520065       JOHN MOLLOY, ET AL. VS. KAISER FOUNDATION HOSPITALS,

                   ET AL.

 

 

JOHN MOLLOY                           PRO/PER

KAISER FOUNDATION HOSPITALS           YVONNE M. PIERROU

 

 

PETITION TO APPOINT NEUTRAL ARBITRATOR BY KAISER FOUNDATION HOSPITAL AND The Permanente Medical Group, Inc.

 

 

·         MOOT. Order was signed on February 10, 2015.

 

_____________________________________________________________________

9:00

5

CIV 524733       GUADALUPE SEGURA, JR., et al. VS. BANK OF AMERICA,

                   N.A., et AL.

 

 

GUADALUPE SEGURA, JR.                 JOHN HOLMAN

BANK OF AMERICA, N.A.                 MARGARET K. THIES

 

 

DEMURRER TO 2nd Amended COMPLAINT of GUADALUPE AND MARIA SEGURA BY BLUE MOUNTAIN HOMES, LLC

 

 

  • Defendant’s Demurrer to the Second Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND in part and OVERRULED in part. 

 

  • Regarding the First Cause of Action for Injunctive Relief, the Demurrer to this Cause of Action is SUSTAINED WITHOUT LEAVE TO AMEND. Plaintiffs are too late to seek injunctive relief under the Homeowner’s Bill of Rights.  Injunctive relief is available only up to the date of recording the Trustee’s deed, which was June 18, 2013. [Civ. Code §§ 2924.12(a) and 2924.19(a)]. After June 18, 2013, Plaintiffs are limited to economic damages.[Civ. Code §§ 2924.12(b) and 2924.19(b)]. 

 

  • As to the Second Cause of Action for Declaratory Relief, the Demurrer to this Cause of Action is OVERRULED.  Plaintiffs have alleged an actual controversy relating to the legal rights and duties of the respective parties. The Court is disinclined at this time to stay these proceedings while awaiting a ruling from the California Supreme Court regarding standing and title issues.  Depending on the outcome of the case before the California Supreme Court, Defendants are free to bring a Motion to Strike and/or Motion for Summary Judgment.

 

  • As for the Third Cause of Action for Quiet Title the Demurrer to this Cause of Action is OVERRULED.  The Court is disinclined at this time to stay these proceedings while awaiting a ruling from the California Supreme Court regarding standing and title issues. Depending on the outcome of the case before the California Supreme Court, Defendants are free to bring a Motion to Strike and/or Motion for Summary Judgment.

 

  • Concerning the Ninth and Tenth Causes of Action for Fraud and Negligent Misrepresentation, the Demurrers to these Causes of Action are OVERRULED. Plaintiffs have pled sufficient facts to allege causes of action against this Defendant based on allegations of conspiracy.

 

  • As for the Twelfth Cause of Action for Unfair Business Practices under B&P § 17200, et seq, the Demurrer to this Cause of Action is OVERRULED. Plaintiffs have pled sufficient facts to allege a cause of action for unlawful, unfair or fraudulent business practices against this Defendant.

 

  • Defendant’s Request for Judicial Notice is GRANTED.

 

  • Defendants shall file their answer to the Second Amended Complaint, as constituted after the Court’s ruling, no later than March 17, 2015.

 

  • Demurring parties 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 Joseph C. Scott, Department 25.

 

_____________________________________________________________________


9:00

6

CIV 525068       ALPHA CARD SYSTEMS, LLC VS. JOLLY TECHNOLOGIES, INC.

 

 

ALPHA CARD SYSTEMS, LLC               MATTHEW A. HAULK

JOLLY TECHNOLOGIES, INC.              ENOCH H. LIANG

 

 

MOTION FOR SUMMARY ADJUDICATION OF ISSUES BY ALPHA CARD SYSTEMS, LLC AGAINST JOLLY TECHNOLOGIES, INC.

 

 

·         The seven objections to the declaration of Josh Daniels by Defendant Jolly Technologies, INC. are SUSTAINED on the grounds asserted.

 

·         “[W]here a trial court is confronted on summary judgment with a large number of nebulous evidentiary objections, a fair sample of which appear to be meritless, the Court can properly overrule . . . all of the objections on the ground that they constitute oppression of the opposing party and an imposition on the resources of the court.” (Cole v. Town of Los Gatos, (2012) 205 Cal. App. 4th 749, 764, n.6.) Alpha Card Systems, LLC. asserts 132 objections consuming 48 pages. Not all objections are truly asserted; some are made conditioned on what the Court might rule on an earlier objection. In order to avoid a waste of judicial resources, the Court rules on only the objections to evidence that pertain to the Court’s analysis of the motion.

    

·         The Court SUSTAINS Objections 124-127 (Decl. of Fox ¶18 and Exhibit N]

 

·         The Court OVERRULES Objections 43 & 44 (Decl. of Jolly ¶ 32).

 

·         The Court OVERRULES Objections 79, 80, 83, 84 (Decl. of Pelfrey ¶¶ 6 & 9.)

·         The Motion is DENIED as to Issue 1 (Plaintiff’s claim for declaratory relief). The complaint alleges a controversy about whether the Agreement requires Defendant Jolly Technologies, INC. to provide maintenance and support for Branded Software at no additional charge, “including manual reactivation for Branded Software licenses, that Defendant has sold to Plaintiff.” (Complaint ¶ 83.) The Agreement does not expressly address “manual reactivations.” Therefore, the issue is whether manual reactivations are an implied term within a specific contractual provision.

 

·         The relevant portion of Section 7 of the Agreement (maintenance and support) obligates Jolly Technologies, INC.  to “be responsible for maintenance and support services relating to problems with the Branded Software, including break -fix and operation of the Branded Software only after Alpha Card Systems, LLC has made reasonable efforts to solve the problem.” A manual reactivation is required whenever the software is installed on or moved to a new computer, a situation that does not suggest “problems with the Branded Software.” The provision also states that maintenance and support is required “only after Alpha Card Systems, LLC. has made reasonable efforts to solve the problem.” Manual reactivations can come only from Jolly Technologies, INC.; it is impossible for Alpha Card Systems, LLC. to attempt a manual reactivation on its own. (UMF 27 & 28.) Therefore, the provision requiring that Alpha Card Systems, LLC. first attempt “reasonable efforts to solve the problem” before calling on Jolly Technologies, INC. implies that this provision does not apply to manual reactivations. Section 7 is not clear about whether it encompasses manual reactivations. At the least, it is a triable issue that the Court cannot resolve on summary adjudication.

 

·         Further, the provision in Section 11 that Section 7 survives termination of the agreement conflicts with Section 7’s provision that it applies only “during the term” of the agreement. Jolly Technologies, INC.’s opposing evidence creates a triable issue of fact about whether the parties intended Section 7 to survive, or whether the survival clause contains a drafting error.  (Jolly Technologies, INC.’s Additional Disputed Material Facts 23 – 26, 36-39 and evidence cited in support.)

 

·         The motion is DENIED as to Issues 2 and 3 (Cross-complaint Counts 3 and 4 – Fraud, Negligent Misrepresentation). The moving evidence fails to establish that no representations or misrepresentations were made. The argument is supported by approximately 20 email requests for manual reactivation. (Exhibit D to Declaration of Josh Daniels.) Alpha Card Systems, LLC. admits that these do not reflect all of the requests, but constitute merely “sample.” (Moving P&A at 14:16-17). Even in the absence of Opposition, the Motion fails to meet the initial burden of establishing that no representations were made. The lack of representations from within 20 reactivation requests does not establish that Alpha Card Systems, LLC. made no representations in connection with potentially thousands of other reactivation requests.

 

·         In addition, justifiable reliance is normally a question of fact that cannot be determined on summary judgment unless undisputed facts lead to only a single reasonable conclusion. Despite Alpha Card System  LLC’s contention that Jolly Technologies,  INC. is the top ID software manufacturer, Jolly Technologies, INC. offers evidence that it had no ability to contact Alpha Card System, LLC’s customers and therefore had no way of knowing whether the customer’s request for manual reactivation was legitimate. (Vorderstrasse Deposition at 56:15- 57:5.) Jolly Technologies, INC. offers evidence that it lacked the ability to verify Alpha Card Systems, LLC reasons for why each manual reactivation was necessary. (Declaration of Jolly Technologies, INC. ¶¶ 31 & 32; Declaration of Pelfrey ¶ 6, 8, 9.)

 

·         The motion is DENIED as to Issue 4 (Cross-complaint Count 2 – breach of implied covenant). Jolly Technologies, INC. offers no opposing argument, but the moving papers fail to demonstrate that the claim lacks merit. The cross-complaint alleges an implied covenant that Alpha Card System, LLC would investigate customer claims before forwarding them to Jolly Technologies, INC. and to investigate customers’ reactivation requests. (1st Am. Cross-complaint ¶ 36.) Alpha Card System, LLC’s Motion argues only that no such implied obligations exist. The sole material fact supporting this argument is Number 2, which is merely a statement that a true copy of the Software License Agreement is attached to the First Amended Cross-complaint. The bare contention that “the Agreements contain no express or implied duty, obligation, or requirement for Alpha Card System, LLC to ‘investigate’” does not make it so. A simple reference to the written contract does not compel a finding that the alleged implied covenants do not exist. The moving papers offer no facts or argument to explain why the alleged covenants to investigate are not implied into the agreement. (See Moving P&A at 18:23 – 20:11.)

 

·         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.

 

_____________________________________________________________________


9:00

7

CIV 527290       MELODY HAWKINS VS. REBECCA DELGADO

 

 

MELODY HAWKINS                        GARY S. MOBLEY

REBECCA DELGADO                       PRO/PER

 

 

MOTION FOR ORDER IMPOSING TERMINATING SANCTIONS, OR, IN THE ALTERNATIVE, OTHER APPROPRIATE SANCTIONS AGAINST DEFENDANT REBECCA DELGADO BY MELODY HAWKINS

 

 

  • Plaintiff's unopposed Motion for Terminating Sanctions is GRANTED.  The Court views Defendant’s failure to respond to the Plaintiff’s Motion as an admission of the merits of the subject Motion. Plaintiff is awarded sanctions of $820.

 

  • Moving attorney 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 Joseph C. Scott, Department 25.

 

 

_____________________________________________________________________


9:00

8

CIV 527654       LAURA BERNADETTE HAYWARD VS. THOMAS POZDRO

 

 

LAURA BERNADETTE HAYWARD              PRO/PER

THOMAS POZDRO                         CRYSTAL ELLER

 

 

MOTION FOR ATTORNEYS' FEES AND COSTS PURSUANT TO CCP §425.16(c) BY LAURA BERNADETTE HAYWARD

 

 

[The Court allowed the parties the opportunity to provide supplemental briefs regarding the effect of an appeal on the Court’s ability to award attorney fees.  In light of the fact that the parties now agree that the Court has jurisdiction to rule on the subject motion, the tentative ruling of January 6, 2015, as outlined below, remains the Court’s tentative ruling.]

 

  • Plaintiff’s Motion for Attorney’s Fees and Costs is DENIED. A Plaintiff who successfully defeats a Special Motion to Strike is entitled to attorney’s fees if the Court finds that the Special Motion to Strike was frivolous or solely intended to delay. (Code of Civ. Proc. § 425.16, subd. (c)).

 

  • Defendant’s Motion argued that his alleged statements to Plaintiff’s employer, insurer, and union fell within the “public interest” category of protected speech. Although the argument was found to have lacked merit, it was not objectively unreasonable to the point that “any reasonable attorney would agree such motion is totally devoid of merit.’” (Baharian-Mehr v. Smith (2010) 189 Cal. App. 4th 265, 275.)

 

  • In Baharian-Mehr, the Court noted that because of a “continuous flow of unambiguous case law in the past decade,” “any reasonable attorney should be aware that” the motion had no merit. (Id.) No wealth of case law exists that addresses the specific facts of this case. Defendant’s Motion to Strike and his opposition to the present Motion cite cases in which reports of wrongdoing constituted matters of public interest. Those cases involved reports to law enforcement or entities charged with combatting or investigating wrongdoing. This Court concludes that it is not objectively reasonable to argue that if an employer or insurer’s report to regulators or law enforcement falls within public interest, then an individual’s initial report of the same incident to the employer or insurer also meets that test. Although Defendant’s Motion lacked merit, it was not frivolous.

 

  • The evidence cited by Plaintiff (Moving Points and Authority at 6:12 – 7:10) do not demonstrate that Defendant’s Motion was solely intended to delay proceedings.

 

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

 

 

_____________________________________________________________________


9:00

9

CIV 531460       PETRITA RED VS. FLYERS ENERGY LLC

 

 

PETRITA RED                           EDWIN AIWAZIAN

FLYERS ENERGY, LLC                    PRITEE K. THAKARSEY

 

 

MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT BY FLYERS ENERGY, LLC

 

 

·         Continued to March 27, 2015 at 9:00a.m. on the Court’s motion.

 

 

DEMURRER TO COMPLAINT of PETRITA RED BY FLYERS ENERGY, LLC

 

 

·         Continued to March 27, 2015 at 9:00a.m. on the Court’s motion.

 

 

 

_____________________________________________________________________


9:00

10

CLJ 209293       JEANNE S. BURKE REVOCABLE LIVING TRUST, ET AL. VS.

                   SUSAN L. HUNTINGTON

 

 

JEANNE S. BURKE REVOCABLE LIVING TRUST RICHARD F. KELLY

SUSAN L. HUNTINGTON                   PRO/PER

 

 

MOTION TO BE RELIEVED AS COUNSEL BY RICHARD F. KELLY

 

 

·         Appear.

 

 

_____________________________________________________________________


9:00

11

CLJ 529335       JOSE MELENDEZ VS. RACHEL GOSIENGFIAO, ET AL.

 

 

JOSE MELENDEZ                         ANTHONY R. LOPEZ

RACHEL GOSIENGFIAO                    JEROME P. BELLOTTI

 

 

MOTION TO COMPEL ANSWERS TO FORM INTERROGATORIES; SPECIAL INTERROGATORIES AND FOR MONETARY SANCTIONS AND ATTORNEYS’ FEES BY RACHEL GOSIENGFIAO AND GLORIA GOSIENGFIAO

 

 

  • The unopposed Motion is GRANTED. Plaintiff shall provide verified responses to the form and special interrogatories, without objection, within 15 days of notice of entry of order.

 

  • The request for sanctions is also GRANTED. Plaintiff shall pay $390.00 to Defendant within 15 days of notice of entry of 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 Joseph C. Scott, Department 25.

 

_____________________________________________________________________


 

In the Superior Court of the State of California

In and for the County of San Mateo

 

WRITS AND RECEIVERS CALENDAR

Judge: Honorable GEORGE A. MIRAM

Department 28

 

400 County Center, Redwood City

Courtroom 2F

 

Thursday, February 26, 2015

 

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

 you must call (650) 261-5128 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

2:00

1

CIV 531697       RAUL ALFRED CASTRO JR. VS. GEORGE VALVERDE, ET AL.

 

 

RAUL ALFRED CASTRO JR.                MAJEED S. SAMARA

GEORGE VALVERDE                       KAMALA D. HARRIS

 

 

PETITION FOR WRIT OF MANDATE

 

 

·         Continued to March 26, 2015 at 2:00 PM.

 

_____________________________________________________________________


2:00

2

CIV 528792       MAURO ALVAYERO CRUZ, ET AL. VS SIERRA CORPORATE

                   MANAGEMENT, INC., ET AL.

 

 

MAURO ALVAYERO CRUZ                   SHIRLEY E. GIBSON

SIERRA CORPORATE MANAGEMENT, INC.     TERRY R. DOWDALL

 

 

CASE MANAGEMENT CONFERENCE

 

 

·         Continued to March 5, 2015 at 2:00 PM.

 

_____________________________________________________________________


 

In the Superior Court of the State of California

In and for the County of San Mateo

 

Special Set Calendar

Judge: Honorable V. RAYMOND swope

Department 23

 

400 County Center, Redwood City

Courtroom 7D

 

FEBRUARY 26, 2015

 

IF YOU INTEND TO APPEAR ON ANY CASE ON THIS CALENDAR YOU MUST DO THE FOLLOWING:

3.  YOU MUST CALL (650) 261-5123 BEFORE 4:00 P.M. TO INFORM THE COURT OF YOUR INTENT TO APPEAR.

4.  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

1

CIV 496994    BEALS MARTING & ASSOCIATES VS. LIFE TECHONOLOGIES CORPORATION

 

 

BEALS MARTING & ASSOCIATES            P. KURT PETERSON

LIFE TECHONOLOGIES CORPORATION        ADAM M. TSCHOP

 

 

MOTION FOR AWARD OF ATTORNEY'S FEES AND COSTS ON SPECIAL MOTION TO STRIKE AND IN DEFENSE OF CROSS-COMPLAINANT'S APPEAL OF SAID MOTION BY 384 FOSTER CITY BOULEVARD PARTNERS

 

 

·         Matter continued to June 11, 2015 at 9:00 AM

 

 _____________________________________________________________________

 

 

 

 


POSTED:  3:00 PM

 

 

 

 

© 2015 Superior Court of San Mateo County