August 31, 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 susan irene etezadi

Department 18

 

400 County Center, Redwood City

Courtroom 2M

 

Thursday, August 27, 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.

 

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 515744     JONATHAN LYNN VS. C.H.P. OFFICER JAMES MITCHELL

 

 

JONATHAN LYNN                         STANLEY GOFF

JAMES MITCHELL                        GRAYSON W. MARSHALL

 

 

MOTION FOR SUMMARY JUDGMENT AS TO FOURTH Amended COMPLAINT BY JAMES MITCHELL

 

 

The Court notes that in reviewing Plaintiff’s moving papers that he did not comply with California Rules of Court Rule 3.1110(c) (“Documents bound together must be consecutively paginated”).

 

Defendants’ objections 1 through 5 are sustained for lack of foundation.

 

Defendants’ motion for summary judgment is GRANTED. Under the undisputed material facts, Plaintiff’s complaint has no merit.

 

Defendant Mitchell is immune from liability arising from his decision to allow Plaintiff’s property to remain at the side of the road overnight.

 

Defendant Mitchell is immune from liability arising from his discretionary acts. (Gov’t Code § 820.2.) Plaintiff argues that Defendant Mitchell’s acts were not discretionary, but ministerial.  A ministerial act is “an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning such act's propriety or impropriety, when a given state of facts exists. Thus, where a statute or ordinance clearly defines the specific duties or course of conduct that a governing body must take, that course of conduct becomes mandatory and eliminates any element of discretion.” (Bullis Charter Sch. v. Los Altos Sch. Dist. (2011) 200 Cal. App. 4th 296, 1035-36.)

 

Vehicle Code section 22850 requires only that the police officer “take the vehicle to the nearest garage or other place of safety or to a garage designated or maintained by the governmental agency of which the officer or employee is a member . . . .” Nothing in the statute prescribes any guidelines or requirements on how the officer is to perform this task. Section 22850 does not indicate that that the vehicle be moved “in a prescribed manner . . .  without regard to [the officer’s] own judgment or opinion concerning the acts’ propriety or impropriety.” Nor does section 22850 “clearly define the specific duties or course of conduct” that is necessary to satisfy section 22850. (See Bullis Charter Sch. v. Los Altos Sch. Dist. (2011) 200 Cal. App. 4th 296, 1035-36.)  Therefore, the manner in which an officer impounds a vehicle is discretionary, not ministerial.

 

The undisputed material facts demonstrate that Defendant Mitchell considered all of the surrounding facts, weighed competing risks, and used his discretion to allow Plaintiff’s property to remain at the side of the road overnight. (UMF 6 through 16; Declaration Mitchell ¶¶ 3-11.) The immunity of Government Code section 820.2 applies to Defendant Mitchell. Since Defendant Mitchell is immune from liability, no liability can be imputed to defendant CHP.  

 

Further, Defendant Mitchell was not grossly negligent. Whether conduct amounted to “gross negligence” is generally a question of fact that cannot be resolved on summary judgment. However, when the facts are undisputed and they lead to only one reasonable inference, the Court may rule on the matter as a question of law. (Goodwin v. Goodwin (1935) 5 Cal. App. 2d 644, 646; see, e. g., Frittelli, Inc. v. 350 N. Canon Drive, LP (2011) 202 Cal. App. 4th 35, 53.)

 

Plaintiff alleges that the breach of duty was Defendant Mitchell’s failure to tow the boat to a secure yard until six days after the impounding. (4th Am. Comp. ¶¶ 18 & 19.) It was not the act of impounding, but the failure to move the boat immediately to a storage location that Plaintiff contends was grossly negligent. Plaintiff correctly points out that an officer must move a vehicle to a garage or “place of safety” after impounding it.  (Veh. Code § 22850.) The undisputed facts show that Defendant Mitchell complied with section 22850. The statute does not express or imply a specific time requirement.  Plaintiff’s allegation of a six-day delay is a red herring, since the boat was allegedly stripped within 24 hours. (Lynn Deposition at 58:15 – 60:10.) Therefore, Plaintiff’s true contention is that leaving the boat roadside for even 24 hours was grossly negligent.

 

Gross negligence is defined as “want of even scant care' or an extreme departure from ordinary standard of conduct.” (City of Santa Barbara v Superior Court (2007) 41 Cal 4th 747, 754.)  The undisputed facts show that Defendant made various attempts to arrange for an immediate tow, but the contracted companies were unable or unwilling to perform the job at the time. (UMF 12, 13, 14; Declaration of Mitchell ¶¶ 9 & 10.)

 

Defendant Mitchell considered the risks if Plaintiff were permitted to move the boat again. It is undisputed that Defendant Mitchell weighed these risks before deciding to leave the boat where it was. ((UMF 16; Declaration of Mitchell ¶ 11.) Under the undisputed facts, the only reasonable inference is that Defendant Mitchell’s conduct did not suffer from “want of even scant care” or constitute “an extreme departure from ordinary standard of conduct.” 

 

Plaintiff attempts to dispute Fact Number 16 with his testimony that the area was a “high crime” area where drug addicts lurked, and that he believed Defendant Mitchell was aware of these facts. (Declaration of Lynn ¶¶ 2, 3, 4, 9.) The court sustains Defendants’ objections to the above opinions for lack of foundation. Plaintiff fails to raise a triable issue of fact about whether Defendant acted with gross negligence.

 

Plaintiff’s only argument against immunity for Defendant CHP is that Defendant Mitchell is not immune. (See Opposing P & A at 7-8.)

 

 

 

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 to 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 Susan Irene Etezadi, Department 18.

 

_____________________________________________________________________


9:00

2

CIV 522416       TRADEWINDS INTERNATIONAL ENTERPRISES, INC. VS.

                   MIRACLEBEAM PRODUCTS, ET AL.

 

 

TRADEWINDS INTERNATIONAL ENTERPRISES  ARNOLD M. WOODS

MIRACLEBEAM PRODUCTS                  JONATHAN D. NICOL

 

 

MOTION TO STRIKE CROSS-COMPLAINTS AND FOR SANCTIONS AGAINST CROSS-DEFENDANTS BY KAI CLARKE

 

Defendant / Cross-Complainant KAI CLARKE’s Motion to Strike the Cross-Complaint of Defendants MIRACLEBEAM PRODUCTS and SCOTT TUCKER, filed on January 2, 2014, as well as the Cross-Complaint of Defendants MIRACLEBEAM PRODUCTS; SCOTT TUCKER; and MICHAEL SIEGEL on June 19, 2015 is GRANTED pursuant to Code Civ. Proc. § 436.

 

Clarke’s request for monetary sanctions is GRANTED in the amount of $2,575.95. 

 

Clarke’s request for judicial notice is GRANTED as to Exhibit B, the Court’s online docket, and the filing dates of Exhibits A and C, as well as the Proof of Service attached to Exhibit A.

 

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 to 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 Susan Irene Etezadi, Department 18.

 

_____________________________________________________________________


9:00

3

CIV 527347       KEALAONAPUA O'SULLIVAN LUM VS. MIDPEN HOUSING

                   CORPORATION, ET AL.

 

 

KEALAONAPUA O'SULLIVAN LUM            CHARLES J. SMITH

MIDPEN HOUSING CORPORATION            DAVID M. MCLAUGHLIN

 

 

MOTION TO COMPEL AUTHORIZATION FOR THE RELEASE OF MEDICAL RECORDS BY MIDPEN HOUSING CORPORATION, ET AL.

 

 

The matter is continued on the Court’s own motion to September 21, 2015 @ 9:00 a.m. in the Law and Motion Department.

 

_____________________________________________________________________


9:00

4

CIV 530296      IAR SYSTEMS SOFTWARE, INC. VS. KAUSHIK DATTANI, ET AL.

 

 

IAR SYSTEMS SOFTWARE, INC.            STEFANO ABBASCIANO

KAUSHIK DATTANI                       KRISTEN E. DRAKE

 

 

MOTION FOR SUMMARY JUDGMENT AS TO COMPLAINT BY KAUSHIK DATTANI, ET AL.

 

 

The Motion for Summary Judgment by Defendants Kaushik Dattani dba Dattani & Co. and Tej Dattani is DENIED. Defendants have not met their initial burden under CCP §437c(p)(2). They have not presented sufficient factual evidence to establish in pari delicto. They have not established that CEO Nadim Shehayed so dominated and controlled IAR that his wrongdoing should be imputed to the corporation.

 

 

Prevailing 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 to 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 Susan Irene Etezadi, Department 18.

_____________________________________________________________________


9:00

5

CIV 531566      MARGARITA SANTILLAN VS. MILLS PENINSULA MEDICAL

                  CENTER, ET AL.

 

 

MARGARITA SANTILLAN                   AARON B. MARKOWITZ

MILLS PENINSULA MEDICAL CENTER

 

 

JOINDER OF MILLS PENINSULA HEALTH SERVICES AND SUTTER HEALTH TO DEMURRER TO PLAINTIFFS FIRST AMENDED COMPLAINT

 

 

Defendants Kimberly Dalal, M.D. and MPMG Medical Clinics, Inc. [dba Peninsula Medical clinic, Inc.]’s Request for Judicial Notice is GRANTED pursuant to Evidence Code §§452(d)(h) and 453.

 

 

The Joinder by Defendants Mills-Peninsula Health Services and Sutter Health to Defendants Kimberly Dalal, M.D. and MPMG Medical Clinics, Inc. [dba Peninsula Medical clinic, Inc.]’s demurrer  to the first amended complaint is GRANTED.

 

 

DEMURRER TO FIRST Amended COMPLAINT BY KIMBERLY DALAL MD., MPMG MEDICAL CLINICS, INC.

 

 

Defendants Kimberly Dalal, M.D. and MPMG Medical Clinics, Inc. [dba Peninsula Medical clinic, Inc.]’s demurrer to the first amended complaint is SUSTAINED without leave to amend.

 

 

As to the 2nd cause of action for fraud, the first amended complaint does not contain sufficient facts to support a cause of action for fraud against Dr. Dalal. The first amended complaint alleges that Dr. Dalal was provided the pathology interpretation of plaintiff’s biopsy specimen which had been analyzed by another physician, Dr. Thuy Nguyen. The amended complaint demonstrates that Dr. Dalal did not obtain the biopsy specimen, which was obtained by another physician, Dr. Vino Verghese; nor did she analyze or interpret the results of the biopsy, which were interpreted and reported by Dr. Nguyen. The factual allegations of the amended complaint do not support or set forth any intent or knowledge on the part of Dr. Dalal to deceive the plaintiff.

 

 

As to the 3rd cause of action for medical battery, the first amended complaint fails to allege any facts sufficient to constitute a cause of action against Dr. Dalal and her medical group. The factual allegations revealed that the claim is based entirely on the fact that plaintiff did not have cancer and therefore was fraudulently induced to have surgery. However, because Dr. Dalal is not alleged to have obtained, prepared, analyzed or interpreted the pathology report, the battery claim, which is based on fraud, fails because plaintiff is unable to state a fraud claim against Dr. Dalal. See above.

 

 

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 to 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 Susan Irene Etezadi, Department 18.

 

_____________________________________________________________________


9:00

6

CIV 531589    BARBARA BARTOSHUK, ET AL. VS. CARLEEN WHITTESLEY, ET AL.

 

 

BARBARA BARTOSHUK                     PRO/PER

CARLEEN WHITTESLEY                    CRAIG HANSEN

 

 

DEMURRER TO FIRST Amended COMPLAINT BY CARLEEN WHITTESLEY

 

 

The Demurrers as to the First Cause of Action (Concealment and Misrepresentation), the Second Cause of Action (Intentional Interference with Expected Inheritance) and the Third Cause of Action (Undue Influence) are OVERRULED.

 

 

Defendant’s answer shall be filed and served within 20 days after service of Notice of Entry of Order.

 

 

Defendant’s request to stay this action pending the appeal of the Probate matter is DENIED without prejudice to Defendant to bring a noticed motion supported by argument and authority.

 

 

Prevailing 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 to 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 Susan Irene Etezadi, Department 18.

____________________________________________________________________


9:00

7

CIV 531702       JIE-LIAN ZHAO VS. AVIS BUDGET CAR RENTAL, LLC. ET AL.

 

 

JIE-LIAN ZHAO                         JOSEPH W. CARCIONE

AVIS BUDGET CAR RENTAL, LLC.          GEME S STONE

 

 

MOTION TO COMPEL COMPLIANCE BY JIE-LIAN ZHAO

 

 

On August 26, 2015, Plaintiff filed a Notice of Settlement of Entire Case, Conditional, with the Court. Therefore, the Motion to Compel by Plaintiff is off calendar.

 

_____________________________________________________________________


9:00

8

CIV 532068       ERIKA VILCHEZ VS. BIANCA BELLA BALBONI

 

 

ERIKA VILCHEZ                         JACOB SHAPIRO

BIANCA BELA BALBONI                   JAMES P. MOLINELLI

 

 

MOTION TO COMPEL ATTENDANCE AND TESTIMONY AT DEPOSITION OF DEFENDANT BY ERIKA VILCHEZ

 

 

Plaintiff’s Motion to Compel the Deposition of Defendant Biana Bella Balboni is DENIED as a deposition of Defendant took place on August 6, 2015.  Plaintiff’s Motion for Sanctions is GRANTED, pursuant to CCP §§ 2025.450(g)(1) and 2023.010 for Defendant’s failure to appear and Defendant’s failure to meet and confer in good faith.  Defendant shall pay Plaintiff $1290.00 within 15 days of service of the 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 to 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 Susan Irene Etezadi, Department 18.

 

_____________________________________________________________________


9:00

9

CIV 532688       BETTY REIS, ET AL. VS. DUANE MANOR RESIDENTIAL CARE

                   HOME, ET AL.

 

 

BETTY REISS                           ANTHONY D. GHECEA

DUANE MANOR RESIDENTIAL CARE HOME     MICHAEL B. LEVIN

 

 

DEMURRER TO FIRST Amended COMPLAINT BY MANALO'S BOARD & CARE

 

 

Defendant Edaljo, LLC and dba Manalo’s Board & Care’s Demurrer to the First Amended Complaint is SUSTAINED with leave to amend. CCP § 430.10(e).

 

 

The First Amended Complaint fails to state sufficient facts to state causes of action against this defendant, and has failed to state sufficient facts to differentiate among the three named entity defendants.

 

 

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 to 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 Susan Irene Etezadi, Department 18.

 

____________________________________________________________________


9:00

10

CLJ 448972       GREAT SENECA FINANCIAL CORPORATION VS. CARLA M.

                   VISENIO

 

 

GREAT SENECA FINANCIAL CORPORATION           FLINT C. ZIDE

CARLA M VISENIO

 

 

MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT AND TO QUASH SERVICE BY CARLA M. VISENIO

 

 

Defendant’s Motion to Set Aside Default and Default Judgment and to Quash Service of Summons is denied on the grounds that it is untimely.  CCP §473.5(a).  Here, the default judgment was entered on May 1, 2006 and this motion was not filed until June 30, 2015.

 

 

Prevailing 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 to 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 Susan Irene Etezadi, Department 18.

 

_____________________________________________________________________


9:00

11

CLJ 527788       IN RE: $4239.00 US. CURRENCY

 

 

THE PEOPLE OF THE STATE OF CALIFORNIA MEGAN WILKINS

AARON L. HARRISON

 

 

MOTION FOR ORDER FOR TERMINATING SANCTIONS AAND STRIKING CLAIM BY THE PEOPLE OF THE STATE OF CALIFORNIA

 

 

Petitioner’s Motion for Terminating Sanctions is DENIED for failure to provide sufficient notice to Interested Party pursuant to CCP §1005. 

 

 

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 to provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court. 

 

_____________________________________________________________________


 

 


If an appearance is required or if a party has provided timely notice of intent to appear, any party may appear telephonically through Court Call.  To do so, you must contact Court Call at (888) 882-6878 no later than 4:30 p.m. on the court day prior to the hearing.


 

In the Superior Court of the State of California

In and for the County of San Mateo

 

Special Set Law and Motion Calendar

Judge: Honorable joseph e. bergeron

Department 4

 

400 County Center, Redwood City

Courtroom 2B

 

August 27, 2015

 

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

 you must call (650) 261-5104 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

9:00

1

CIV 515707       SANDRA ROSENBERG VS. MERIDIAN BAY HOMEOWNERS

                   ASSOCITATION, ET AL.

 

 

SANDRA ROSENBERG                      SIMON OFFORD

MERIDIAN BAY HOMEOWNERS ASSOCITATION  RICHARD SWENSON

 

 

MOTION FOR IN CAMERA REVIEW BY MERIDIAN BAY HOMEOWNERS ASSOCIATION 

 

  • Moving Defendant Meridian Bay Homeowner’s Association is instructed to bring to the hearing all documents for which they are requesting an in camera review. This shall include all documents ordered to be produced, unless such documents have already been produced. If a particular item to be reviewed in camera is part of an email chain, the entire email chain shall be submitted.

 

 

  • The Court notes that in the Appellate Court’s March 11, 2015 ruling the Appellate Court states (pg. 3):

 

 

  • “Evidence that is not presumptively privileged may be ordered produced. In that case, the party resisting production may request an in camera examination of the evidence in order to substantiate its claim of privilege [citing to Costco, at pp. 738-739.]”

 

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Posted:  3:00 PM

 

 

 

 

 

 

© 2015 Superior Court of San Mateo County