April 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, April 20, 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

 

9:00

Line: 1    

16-CIV-02361     LISA DALTON vs. GUY BERRY, et al.

 

 

LISA DALTON                            YOSEF PERETZ

GUY BERRY                              ISMAEL D. PEREZ

maxine dhin                            steven cohn   

 

motion for change of venue

TENTATIVE RULING:

 

Defendant Maxine Chin’s motion to change venue is DENIED. 

 

The motion is untimely as it was filed on after defendant’s answer to the First Amended Complaint.  Moreover, defendant has not established that this action was filed in an improper court.  Pursuant to CCP Section 395(a) venue is proper where defendants or some of them reside at the time the action is commenced.  The FAC alleges that defendant Han is a resident of San Mateo County and defendant has not offered evidence to refute this allegation.

 

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

Lines: 2 & 3

16-CIV-02698     MELISSA JEAN HANSELL vs. ERIC CARL DEBODE, et al.

 

 

MELISSA JEAN HANSELL                   KATE L. CHATFIELD

eric carl debode                       richard j. vaznaugh

 

 

2. hearing on demurrer to partially vberified first amended complaint

TENTATIVE RULING:

 

Defendants’ Demurrer is MOOT, because a Second Amended Complaint was filed on March 27, 2017 with leave of Court.

 

 

3. motion to STRIKE

tentative ruling:

 

Defendants’ Motion to Strike is MOOT, because a Second Amended Complaint was filed on March 27, 2017 with leave of Court.

 



9:00

Lines: 4 & 5

16-CIV-02828     MARTA CLAROS, et al. vs. SOMERS BUILDING MAINTENANCE,

                      INC., et al.

 

 

MARTA CLAROS                           ARLO URIARTE

sbm site services llc                  nick c. geannacopulos

 

 

4. motion to compel arbitration

TENTATIVE RULING:

 

The Motion of Defendant SBM Site Services LLC (“Defendant”) to Compel Arbitration is CONTINUED to May 3, 2017 at 9:00 a.m. in the Law and Motion Department. 

 

In Defendant’s reply, Defendant provided entire copies of Plaintiffs’ Spanish-language employment applications, updated translator’s certifications, as well as additional documents purportedly signed by Plaintiff Maria Recinos.  This evidence appears to be presented to address the arguments raised in Plaintiff’s opposition.  The court needs additional time to review these documents.  As such, Plaintiff is permitted, but not required, to file, on or before April 26, 2017, a sur-reply limited only to addressing any of the issues raised by this evidence.

 

 

 

5. motion to stay action

tentative ruling:

 

The Motion of Defendant SBM Site Services LLC (“Defendant”) to Stay Action is CONTINUED to May 3, 2017 at 9:00 a.m. in the Law and Motion Department. 

 



9:00

Lines: 6 & 7

16-CIV-02973     DAVID A. DAILEY vs. EXTRA SPACE STORAGE – REDWOOD

                         CITY

 

 

DAVID ARTHUR DAILEY                    PRO PER

extra space storage-redwood city        DONALD EICHHORN

 

 

6. MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFF’S AMENDED COMPLAINT

TENTATIVE RULING:

 

The motion to strike is GRANTED WITH LEAVE TO AMEND to allege, if possible, facts giving rise to a claim for which punitive damages may be awarded.  Civil Code §3294 permits an award of punitive damages in an action for breach of an obligation not arising from a contract.  The gist of plaintiff’s claim appears to be the breach of his rental agreement. 

 

Defendant 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.

 

7. HEARING ON DEMURRER TO PLAINTIFF’S AMENDED COMPLAINT

TENTATIVE RULING:

 

The special demurrer for uncertainty is OVERRULED.  The facts alleged in the complaint can reasonably be construed to allege a cause of action for breach of contract.  

 

The general demurrer is SUSTAINED WITH LEAVE TO AMEND.  The First Amended Complaint does not allege all of the required elements of a cause of action for breach of contract.  Plaintiff does not allege the terms of the contract verbatim nor does he attach a copy of the contract.  Otworth v. Southern Pacific Transportation Co. (1985) 166 Cal.App.3d 452.  Plaintiff also fails to allege his performance of the contract and the damages resulting from the breach. 

 

Plaintiff shall file and serve an amended complaint within 15 days of notice of entry of this 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.

 



9:00

Line: 8

17-CIV-00158     HUDSON SHOREBREEZE, LLC vs. ISIGN SOLUTIIONS, INC., et al.

 

 

HUDSON SHOREBREEZE, LLC                KEVIN P. MONTEE, ESQ

ISIGN SOLUTIONS, INC.                  CRAIG P. RAMSDELL

 

 

WRIT OF ATTACHMENT – RIGHT TO ATTACH ORDER

TENTATIVE RULING:

 

On March 21, 2017, plaintiff filed an application for a writ of attachment in the amount of $147,375.52.  Defendant opposed the application as to some but not all of the amount sought to be secured.  Specifically, defendant’s opposition stated that it does not contest plaintiff’s application with respect to $106,144.18 which reflects unpaid rent, interest and late charges.  On April 18, 2017, plaintiff filed a reply brief indicating it would accept an attachment in that amount.  As a result, the court grants plaintiff’s application in the stipulated amount of $106,144.18.  Therefore, the court rules as follows:

 

A writ of attachment shall issue upon plaintiff filing an undertaking as required by CCP §489.210.  Plaintiff shall prepare a formal order consistent with this ruling.   

 



9:00

Line: 9

17-CIV-00347     AARON AMARO vs. COUNTY OF SAN MATEO, et al.

 

 

AARON AMARO                            KEVIN D. FREDERICK

COUNTY OF SAN MATEO                    CRAIG N. BAUMGARTNER

 

 

HEARING ON DEMURRER TO COMPLAINT

TENTATIVE RULING:

 

This matter is dropped from calendar as an amended complaint has been filed.

 



9:00

Line: 10

CIV533328     SIX4THREE, LLC VS. FACEBOOK, INC, ET AL.

 

 

SIX4THREE, LLC.                        BASIL P. FTHENAKIS

FACEBOOK, INC.                         LAURA E. MILLER

 

 

MOTION TO SANCTION

TENTATIVE RULING:

 

Defendant Facebook, Inc.’s (Facebook or FB) moving and reply papers do not comply with CRC Rule 3.1110(f), which require hard tabs between exhibits.  The March 28 and April 13, 2017 Declarations of Laura Miller consist of voluminous exhibits, but no tabs, which makes it burdensome for the Court to review this evidence.  Facebook and its counsel, the Durie Tangri firm, are directed to comply with all California Rules of Court and Local Rules in the future.

Counsel for both parties are REQUESTED TO APPEAR at the hearing on Facebook’s Motion for Sanctions.  The Court would like to hear argument as to why, under these circumstances, evidentiary sanctions against 643 would be unjust, such as an order precluding 643 from offering at trial any evidence of actual sales of the Pikinis App.  It appears the App. was sold exclusively through Apple’s APP Store from July/Aug. 2014 through April 2015.  Prior to filing this case, 643 sent FB a pre-litigation letter claiming that roughly 5,000 users had already purchased the App.  In fact, 643 continues to assert that allegation in its most recent Complaint.  In Sept. 2016, FB served discovery requests asking that 643 produce the sales data (the number of units sold, the price per unit, etc.).  It appears that after some meeting and conferring, 643 ultimately responded by producing non-sales information, such as information regarding the number of users who downloaded the App., but not the actual sales.  It appears many users downloaded the App. for free.  This led to FB filing a motion to compel, which the Court granted on Dec. 15, 2016, ordering 643 to either produce the sales data within 10 days, or explain its inability to do so.  On Dec. 27, 2016, 643’s Mr. Kramer verified a further response to FB’s interrogatories, stating that “the data around sales is maintained by another entity, Apple, Inc.,” and that 643 has no access to sales data prior to April 2015, and that Apple appears to remove (delete) older data.  Thus, in response to the Court’s Order to produce the documents, 643 told FB the pre-lawsuit sales data was no longer accessible.  On 4-5-17, however, after FB filed the present motion for sanctions, two days before 643’s Opposition was due, 643 apparently produced sales data for the months of Aug.-Oct. 2014.  643’s Opposition cites to this recent production, arguing FB’s motion is frivolous, that all sales data has been preserved, that no sales data was ever lost or deleted, and that the sales data has already been produced to FB.   

The Court finds 643’s argument confusing.  If none of the sales data was lost (deleted), why did 643’s Dec. 27, 2016 verified discovery response state that all pre-April 2015 sales data was no longer available?  And why was the Aug.-Oct. 2014 sales data not produced until four months after the Court’s Dec. 15, 2016 Order compelling its production, and only after FB filed this motion seeking sanctions?  Where is the remaining 6 months of sales data, and why is the missing 6 months of data not addressed in 643’s Opposition brief?  Mr. Kramer also testified (Tr. at 198) that 643 received periodic sales reports from Apple, and notifications whenever the App. was purchased, but it does not appear those documents have been produced, despite Mr. Kramer’s statement that the sales data was secured in multiple locations. 

Counsel is requested to appear to address these issues before the Court rules on the motion. 

 



 

9:00

Line: 11

CIV538043     HENRY LIEU, ET AL. VS. HARDY MARULI, ET AL.

 

 

HENRY LIEU                             STEVEN ROOD

ARSENIO V. ARCILLA                     MARK C. CARLSON

 

 

MOTION TO STRIKE by eurus corp and aresnio arcilla

TENTATIVE RULING:

 

Defendant’s EURUS CORP and ARESNIO ARCILLA motion to strike Arsenio Arcilla as a defendant is DENIED. Defendants contend that the amendment is an improper Doe substitution because Plaintiffs knew Arcilla’s identity from the beginning. The argument lacks merit. Arcilla was not substituted into this action in place of a Doe Defendant; he was named as an entirely new defendant. No Doe Substitution is on file, and nothing in the Second Amended Complaint alleges that Arcilla is in place of any Doe Defendant. All fifty Doe defendants continue to be alleged under the Doe designation. (SAC para. 7.)

 

The motion is DENIED as to the 11th cause of action. The claim for constructive fraud is substantially similar to the previous claim for breach of fiduciary duty, to the point that it appears to be merely an alternative legal theory based on the same facts. It is not a substantively different cause of action. Although the addition of this cause of action is technically beyond the scope of leave to amend, it is not a material violation of the order justifying an order striking the cause of action.

 

The motion is DENIED as to claims for attorney’s fees. Plaintiffs allege that Defendant Eurus’s breach of fiduciary duty required Plaintiffs to bring an action against Defendants Barbagelata and Marulis. As between Plaintiffs on one hand and the seller and seller’s agent on the other, Defendant Eurus’s alleged breach of fiduciary duty is the “tort of another.” The fees alleged in paragraph 65 are not the fees incurred to sue Eurus; they are an element of damage arising from Eurus’s alleged breach.

 

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.

 

 



 

9:01

Line: 12

16-CIV-02698     MELISSA JEAN HANSELL vs. ERIC CARL DEBODE, et al.

 

 

MELISSA JEAN HANSELL                   KATE L. CHATFIELD

ERIC CARL DEBODE                       RICHARD J. VAZNAUGH

 

 

MOTION TO QUASH

TENTATIVE RULING:

 

Defendants’ Motion to Quash Subpoenas for Private Financial Information and For Sanctions From Plaintiff and Her Counsel is CONTINUED to May 25, 2017 AT 9:00 A.M. in the Law and Motion Department for review and status of the causes of action stated in the Plaintiff’s Second Amended Complaint and ruling on the motion.

 

 



 

 

In the Superior Court of the State of California

In and for the County of San Mateo

 

WRITS AND RECEIVERS CALENDAR

Judge: Honorable JOHN RUNDE

Department 42

 

400 County Center, Redwood City

Courtroom 2F

 

Thursday, April 20, 2017

 

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

Line: 1

16-CIV-01388     DAVID LAU, et al vs. TOWN OF HILLSBOROUGH

 

 

DAVID LAU                              WILLIAM C. LAST, JR.

TOWN OF HILLSBOROUGH                   mark d. hudak

 

 

Petition for writ of mandate

TENTATIVE RULING:

 

The Petition for Writ of Administrative Mandamus filed by David Lau and May Lam seeking to vacate the Decision and Order dated August 25, 2016 by the Town of Hillsborough is DENIED.  The administrative record shows that there was substantive evidence in support of each of the findings that various permits were required, that work was performed after Stop Orders were issued.   There was substantial evidence supporting each of the findings that a code violation occurred.  The hearing panel was entitled to discount the testimony of Mr. Lau to the extent the found it to lack credibility. 

 

Petitioners argue that evidence presented at the hearing should be disregarded because such evidence might not be admissible under the rules of evidence.  First, a hearing of this type does not need to be conducted according to the technical rules of evidence and witnesses.  Second, evidence submitted without objection at the hearing may be considered. (See Government Code § 11513; Carl S. v. Commission for Teacher Preparation and Licensing (1981) 126 Cal.App.3d 365, 370.)

 



2:00

Lines: 2 & 3 

16-CIV-02779     JOHN W. DAVIS, et al. vs. HACIENDA VILLA 14, LLC, et al.

 

 

JOHN W. DAVIS                          SONIA S. SHAH

HACIENDA VILLA 14, LLC                   Robert c. holtzapple

 

 

2. Motion to appoint receiver

TENTATIVE RULING:

 

 

 

 

3. Motion to appoint receiver

TENTATIVE RULING:

 

The Motion by Plaintiffs John W. Davis and Christine Davis for Appointment of a Receiver and for Preliminary Injunction is DENIED.

 

First, there is no evidence that a receiver could increase the number of rental days per year, that any rental opportunity was rejected by the current management, that there was a failure to effectively market the rental property, that the member use of the Villa pursuant to the bylaws interfered with rental income, that a receiver would not be bound by the same bylaws permitting member use when the property was not rented, or that any aspect of the business operations would change if a receiver were appointed.  Defendants argue persuasively that a $5,000 per night villa doesn’t rent as frequently as a low priced condo.

 

Second, the fact that the fact that the LLC is not as profitable as the Plaintiff might prefer is not the type of dire circumstances necessary for the appointment of a receiver under California law. (See .Golden State Glass Corp. v. Superior Court of Los Angeles (1939) 13 Cal.2d 384, 394-395.)    There is no evidence that the management of the LLC pursuant to its bylaws and operating agreement and the majority votes of the members is in breach of any fiduciary duty to Plaintiffs, but even if there were, there is no evidence that damages are not an adequate remedy for the alleged lost rental income and the alleged unnecessary capital calls set forth in the complaint because the sole harm alleged is monetary loss. 

 

Third and Finally, Plaintiffs do not meet the requirements for any form of injunctive relief.  They have not demonstrated a reasonable likelihood that they will prevail on the merits, they have not demonstrated irreparable harm or any kind other than monetary loss, and there is no showing that an action for monetary damages would not provide an adequate remedy for all harms alleged.

 

Plaintiffs raise hearsay, lack of foundation, improper opinion, and best evidence objections to testimony in the Johnston, Shimmon, and Jacobson Declarations concerning the discussion leading to management decisions and the rationale for those decisions.  Those objections are all OVERRULED.  The management decisions of an organization are acts of independent significance that are not hearsay, and testimony concerning the rationale or reasoning behind the decisions is admissible for purposes of evaluating the good faith basis for those decisions, the primary question that plaintiffs have placed in issue.  Plaintiffs also object that the declaration misstate or contradict Plaintiffs’ declarations or are argumentative.  Those objections are all OVERRULED.    

 

The arguments by the parties address litigation before the Santa Clara County Superior Court that is apparently currently pending before the California Court of Appeal for the Sixth Appellate District.  That litigation will be resolved on its merits in that action.  This court makes no ruling relating to or based on that litigation.

 


 

 

 


POSTED:  3:00 PM

 

 

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