February 25, 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

 

Thursday, February 23, 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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Line: 1

16-CIV-00045     STEPHANIE HARDING vs. SEQUOIA HOSPITAL, et al.

 

 

HARDING, STEPHANIE                     Pro/PER

SEQUOIA HOSPITAL                       JULIE GREBEL-GAVERY

 

 

MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT ON BEHALF OF DEFENDANT DIGNITY HEALTH dba SEQUOIA HOSPITAL

TENTATIVE RULING:

 

Defendant DIGNITY HEALTH dba SEQUOIA HOSPITAL’s unopposed Motion to Strike Portions of Plaintiff’s Complaint is DENIED WITHOUT PREJUDICE.  Defendant’s moving papers were not served on Plaintiff in accordance with the requirements of Code Civ. Proc. § 1005.  The motion must be filed at least 16 court days before the hearing, and where service is effectuated by mail on an address outside of the State of California but within the United States, the required 16-day notice period is increased by 10 calendar days.  Id.

 

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-00859     SAMMY OH vs. STERICYCLE, INC., et al.

 

 

SAMMY OH                               TYLER J. BARNETT

STERICYCLE, INC.                       MAKRK L. COKEE

 

 

MOTION TO BE RELIVED AS COUNSEL

TENTATIVE RULING:

 

Good cause appearing, the unopposed motion of attorneys James Carr and Tyler Barnett of the law firm Yuhl Carr LLP to be relieved as counsel for Plaintiff SAMMY OH 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, Attorney Carr or Barnett 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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16-CIV-02165     JOHN CLARK vs. CITY OF MILLBRAE

 

 

JOHN CLARK                             ANDY KATZ

CITY OF MILLBRAE                       ALEXANDRA V. ATENCIO

 

 

DEMURRER

TENTATIVE RULING:

 

Defendant City of Milbrae’s (City) Demurrer to Plaintiff’s Complaint is SUSTAINED WITH LEAVE TO AMEND.  As an initial matter, the Court notes that although Plaintiff’s Opposition was filed and served two days late under Code Civ. Proc. Sect. 1005(b), the Court has nonetheless considered it in ruling on the Demurrer. Plaintiff is admonished to strictly comply with Sect. 1005(b) going forward.

 

The Complaint does not allege facts establishing the existence of a contract between Plaintiff and the City.  Code Civ. Proc. Sect. 430.10(e).  First, the alleged facts do not support the conclusion that the City intended to be bound to Plaintiff by virtue of sending a  letter to CalPERS, or by creating an internal Personnel Action Form.  The Complaint alleges Plaintiff retired in 1988, and that two 1989 documents (the City’s letter to CalPERS and the Personnel Action Form) created a written agreement between the parties.  Plaintiff alleges he made his decision to retire in exchange for the City’s representation, set forth in the aforementioned two documents, that he should receive Industrial Disability retirement status.  The Complaint, however, does not allege that the City ever made any representation or promise to Plaintiff.  There is no allegation the City ever spoke to Plaintiff, or sent him either the letter or the Form. 

 

Further, the allegations do not establish consideration for a binding agreement.  Jara v. Suprema Meats, Inc. (2004) 121 Cal.App.4th 1238, 1248 (discussing requirement of a bargained-for exchange); Civ. Code Sect. 1605.  Based on the alleged facts, Plaintiff could not have agreed to retire in 1988 in exchange for the City’s alleged representations made to CalPERS (and statements on an internal City form) issued the following year.  There are no alleged facts suggesting the City made its determination regarding Plaintiff’s Industrial Disability retirement status in exchange for Plaintiff’s decision or promise to retire.  Nor does the Complaint allege facts indicating the City had anything to gain from Plaintiff’s retirement, or even desired it. 

 

As alleged, the breach of contract claim is also time-barred. Code Civ. Proc. 337 (four year limitation period for breach of written agreement).  The Complaint alleges Plaintiff and the City formed a written agreement roughly 27 years ago. Specifically, Plaintiff agreed to “accept retirement and severance from public service” (Parag. 6) in exchange for and in reliance on the City’s alleged representation that Plaintiff would receive “Industrial Disability retirement status.”  It alleges the City breached the agreement by classifying Plaintiff as “miscellaneous service category,” which reduced his benefits.  (Parag. 7).  As alleged, the City’s breach occurred in 1988/89 when the City misclassified him.  The Complaint does not allege facts supporting a later date of breach or accrual.  Thus, on its face, the claim is time-barred.  Plaintiff cites to Govt. Code Sect. 20160 and 20164, arguing no statute of limitations applies where, as here, a CalPERS participant seeks to correct a misclassification.  But the cited Government Code statutes pertain to proceedings before the PERS Board.  The statute of limitations set forth in the Code of Civil Procedure applies here.  

 

The City also argues, citing to documents attached to its Request for Judicial Notice, that any alleged agreement would have been unlawful and unenforceable, because the City could not legally have reclassified Plaintiff as a “safety worker,” and because the City never amended its contract with CalPERS or provided additional funding to enable Plaintiff to receive enhanced retirement benefits.  While this argument may have merit, it improperly relies on evidence outside the Complaint, which the Court cannot consider on Demurrer. See Reply at 6 (City arguing it never amended its CalPERS contract, and never paid additional contributions to CalPERS, and that Plaintiff’s contention that he handled hazardous materials is “unsupported by the facts”). 

 

While Plaintiff may ultimately be unable to state a valid breach of contract claim, given the Court’s liberal policy of permitting amendments, the Court grants leave to amend.  Plaintiff also requests leave to plead an alternative theory of liability based on detrimental reliance, promissory estoppel, and/or quasi-contract.  Without passing on the viable of any such claim, this request for leave is also GRANTED.

 

Defendant’s Request for Judicial Notice is ruled upon as follows:

·         Ex. A (Complaint).  GRANTED.  Evid. Code Sect. 452(d).

·         Ex. B-1, B-2, C, D, and E (letters between Plaintiff and the City; Nov. 25, 2015 claim letter; Plaintiff’s Claim Form; City of Milbrae Personnel Action Form; letters from City to CalPERS; June 20, 2013 letter from CalPERS to Plaintiff; “Summary” of CalPERS contract; “CalPERS Optional Benefits Listing”).  GRANTED-IN-PART.  Evid. Code Sect. 452(c), (h); Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 368, FN1.  The Court takes judicial notice of these documents’ existence, but not the truth of any allegations/facts stated therein. 

 

Any amended Complaint must be filed within 15 days of service of the Notice of Entry of Order. 

 

Demurring 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 Richard H. DuBois, Department 16. 

 



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16-UDL-00559     EQUITY GROWTH ASSET MANAGEMENT vs. Patsy V. Cardona

 

 

EQUITY GROWTH ASSET MANAGEMENT         Jak Marquez

Patsy V. Cardona                       Pro/PER

 

 

DEMURRER TO COMPLAINT

TENTATIVE RULING:

 

Defendant PATSY V. CARDONA’s Demurrer to Complaint is OVERRULED. 

Defendant’s motion argues that Plaintiff failed to serve her with a notice to quit, and that the Proof of Service attached to Plaintiff’s Complaint is untrue and defective.  However, a demurrer tests the legal sufficiency of a pleading and raises only issues of law, not fact.  “A demurrer does not challenge the truthfulness of allegations in a pleading; quite the contrary, it assumes all of the facts pleaded are true, no matter how improbable.”  Serrano v. Priest (1971) 5 Cal.3d 584, 891. 

 

Plaintiff’s cause of action for unlawful detainer pursuant to Code of Civil Procedure § 1161a has been sufficiently stated.

 

Defendant shall file an answer to the complaint by March 3, 2017. 

 

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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CIV522042     JAMES IRIZARRY VS. TERRACE ASSOCIATES, INC., ET AL.

 

 

JAMES IRIZARRY                         DANIEL RAY BACON

LARRY AIKINS                           PAUL S. SHENG

 

 

MOTION TO BIFURCATE ISSUE OF PUNITIVE DAMAGES FOR TRIAL

TENTATIVE RULING:

 

The Motion to Bifurcate Trial is denied without prejudice to either party’s bringing the Motion before the judge who eventually is assigned for trial.

 

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

Line: 6

CIV528409     SAMER JABRI VS. SMART & FINAL LLC

 

 

 

SAMER JABRI                            CONSTANTINE P. TSAGARIS

SMART & FINAL LLC                      MARK HEISEY

COMET BLDG                             JOHN PEARSON

KB SAN MATEO LLC                       LESLIE FALES

 

MOTION FOR SUMMARY JUDGMENT BY COMET BLDG MAINTENANCE

TENTATIVE RULING:

 

The Motion of Defendant Comet Building Maintenance, Inc. (“Comet”) for Summary Judgment is DENIED.

 

Plaintiff Samer Jabri (“Plaintiff”) brings this action for premises liability and negligence arising out of a slip and fall injury that occurred in the parking lot at 1840 South Norfolk in San Mateo (“property”).  

 

Comet moves for summary judgment to both of Plaintiff’s claims on the ground that Comet did not own, possess or control the property, and therefore owed no duty of care to Plaintiff.  “A defendant cannot be held liable for the defective or dangerous condition of property which it did not own, possess, or control. Where the absence of ownership, possession, or control has been unequivocally established, summary judgment is proper.” (Isaacs v. Huntington Mem'l Hosp. (1993) 38 Cal. 3d 112, 134.) 

 

Comet fails to meet its burden of establishing that no triable issue of fact exists as to these claims.  Comet acknowledges that it contracts to provide portering services, parking lot sweeping and monthly sidewalk steam cleaning for the property.  (See Comet’s Undisputed Material Fact no. 6.)  However, Comet contends only that it was not in control of the property at the time of Plaintiff’s injury because this injury occurred outside Comet’s normal working hours at the property and no Comet employee was on site at the time of Plaintiff injury.  (See Comet’s Undisputed Material Facts nos. 7-10 (except as to the portion of the evidence cited in  no. 9 to which objection is sustained), and 12.)  Comet fails to present  evidence to show that it was not in control of the property at the time the spill occurred though. 

 

Furthermore, a triable issue of fact exists as to whether Comet was in control of the property, given that the contract provides for Comet to provide a project manager available 24 hours per day, 7 days a week in the event of an emergency.  (See Plaintiff’s Separate Statement of Facts no. 9.) 

 

Defendant KB San Mateo LLC’s Objections are ruled on as follows:

 

Objection nos. 1, 3, 4 and 5 are OVERRULED. 

 

Objection no. 2 is SUSTAINED IN PART only as to the portion of Basile’s Declaration stating “between 9:00 p.m. and 12:00 a.m. to minimize any disruption in the store,” as misstating the evidence.

 

 

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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CIV537530     SOPHIA ANDRITSAKIS VS. DAVID J. KAPLAN, ET AL.

 

 

SOPHIA ANDRITSAKIS                     EDIRIVERERE PATIENCE ADEYANJU

DAVID J. KAPLAN                        ARTHUR W. CURLEY

 

 

7. MOTION TO COMPELL Responses to Form Interrogatories and a Request for Order Establishing the Request for Admissions be Deemed Admitted and Request for Monetary Sanctions BY PLAINTIFF

TENTATIVE RULING:

 

Plaintiff Sophia Andritsakis’ Motion to Compel Further Responses to Form Interrogatories and a Request for Order Establishing the Request for Admissions Be Deemed Admitted and Request for Monetary Sanctions is DENIED WITHOUT PREJUDICE. The motion was not properly noticed for this hearing date, as 16 court days’ notice was not provided, as required by CCP sec. 1005(b).

 

Plaintiff is reminded to comply with CRC 3.1110(f) which requires each exhibit to be separated by a hard 8 1/2 x 11 sheet with hard paper or plastic tabs extending below the bottom of the page.

 

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.

 

 

8. MOTION FOR PROTECTIVE ORDER BY DEFENDANT

TENTATIVE RULING:

 

Defendant Dr. Kaplan’s Motion for Protective Order and for Sanctions is DENIED, as the discovery requests at issue do not pose unwarranted annoyance, embarrassment, oppression, or undue burden and expense to Defendants. Plaintiff has justified the limited number of discovery requests propounded in the sets at issue in this motion by citing to the limited issues the discovery was directed toward and the large number of affirmative defenses asserted (22 for each defendant) and the complicated corporate relationships among the three defendants.

 

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.

 



 

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

 

Thursday, February 23, 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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Line: 1

16-CIV-01563     DARRELL ESPINOZA vs. PRIME COMMUNICATIONS OF

                    CALIFORNIA, LLC

 

 

DARRELL ESPINOZA                       KYLE R. NORDREHAUG

PRIME COMMUNICATIONS OF CALIFORNIA, LLC simon yang

 

 

Complex Case Status Conference

TENTATIVE RULING:

 

Pursuant to the 2-9-2017 minutes of the Court, Judge Dubois ordered that Plaintiff’s class action claim be dismissed and stricken without leave to amend. Judge Dubois further granted Prime’s motion to compel arbitration of Plaintiff’s individual claims against the company. Further, Plaintiff’s PAGA claim was ordered bifurcated and stayed pending resolution of the arbitration. Accordingly, the Complex Case Status Conference is vacated as this action is no longer deemed Complex.  


 

 

 

 


POSTED:  3:00 PM

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