January 19, 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, January 19, 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-02168     SEAN BARTON vs.NISS-CALI HOLDINGS, LLC, et al.

 

 

BARTON, SEAN                           PARSONS, JON R

NISS-CALI HOLDINGS, LLC                GALEN M. LICHTENSTEIN

 

 

demurrer to Plaintiff's Complaint

TENTATIVE RULING:

 

The Demurrer of Defendants Hamid Nawabi and Sam Nawabi to the third, fourth, sixth, and seventh causes of action is SUSTAINED WITHOUT LEAVE TO AMEND. As a matter of law, supervisors and managers cannot be personally liable for Labor Code wage violations committed by an employer. (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1087-88.) Plaintiff’s reliance on Martinez v. Combs (2010) 49 Cal. 4th 35, Guerrero v. Superior Court (2013) 213 Cal.App. 4th 912, 947, and Noe v. Superior Court (2015) 237 Cal.App.4th 316, 333 are inapplicable. None of those cases holds that a manager or supervisor can incur personal liability for wage law violations of the employer.  In addition, Labor Code section 558.1 does not give rise to a private cause of action. Since Plaintiff makes no offer of proof or argument that he can allege facts demonstrating that Hamid Nawabi or Sameh Nawabi was his employer, leave to amend is not granted.

 

Demurrer to the twelfth cause of action is overruled. Although it appears possible that the common count is based on the same factual allegations giving rise to the earlier causes of action, nothing in the complaint necessarily compels that conclusion. Therefore, the failure of the earlier causes of action to state a claim does not render the twelfth cause of action deficient. 

 

Defendants shall file and serve their respective answers no later than February 2, 2017.

 

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

Line: 2

16-CLJ-00516     LILLIAN MARDIKIAN vs. WAWANESA GENERAL INSURANCE COMPANY

 

 

LILLIAN MARDIKIAN                      GEORGE E. MARDIKIAN

WAWANESA GENERAL INSURANCE COMPANY     JOHN D. EDSON

 

 

DEMURRER  to PLAINTIFF'S FIRST AMENDED COMPLAINT

TENTATIVE RULING:

 

Defendant Wawanesa General Insurance Company’s demurrer to the First Amended Complaint is GRANTED WITHOUT LEAVE TO AMEND to the first and second causes of action for breach of contract and breach of the covenant of good faith and fair dealing, respectively.

 

In ruling on a demurrer, the Court looks to the face of the complaint and upon matters of which the Court may take judicial notice. Franz v. Blackwell (1987) 189 Cal. App. 91, 94. A complaint’s material factual allegations are presumed to be true, but this assumption may be rebutted or contradicted by documents or fact of which the Court may take judicial notice. CCP sec. 430.10(a). Although the allegations are presumed true, the Court does not accept bare legal conclusions as true for purposes of ruling on a demurrer. Serrano v. Priest (1971) 5 Cal. 3d 584, 591.

 

Plaintiff does not have standing to sue for either claim because she never made a claim to Defendant. Without a claim, Plaintiff cannot allege that Defendant breached the contract of insurance, nor that Defendant acted in bad faith.

 

Plaintiff cannot contradict harmful admissions in her original complaint that her son and attorney George previously made a claim and sued on her behalf (Complaint, para. 12, FAC, para. 14). Plaintiff cannot contradict allegations from her original complaint in her amended complaint to avoid a demurrer. Vallejo Develop. Co. v. Beck Develop. Co. (1994) 24 Cal. App. 4th 929, 946. Thus, Plaintiff cannot now allege that she made a claim to Defendant in her March 2016 letter, when she previously admitted that her son George made a claim on her behalf in 2014.

 

Plaintiff’s letter of March 2016 merely refers in passing to a request to “resolve these matters” including “the 2000 Mercedes s430 water damages” without more. (FAC, Ex. C.) This is hardly a “claim” to an insurance company.

 

Both claims are also barred by Res Judicata.  The exact same claim was brought by plaintiff’s son in small claims court and judgment was entered against him.  Plaintiff is in privity with him and therefore said judgment bars this action as well.

 

Defendant Wawanesa General Insurance Company’s Request for Judicial Notice in support of its Demurrer to Plaintiff’s First Amended Complaint is GRANTED as to Exhibits A, C, D, E, F, H, I and J. The request for judicial notice is denied as to Exhibits B and G.

 

This Court will take judicial notice of Exhibits C, F, H and J under Evid. Code sec. 452(d), as orders of this Court. This Court will take judicial notice of Exhibits A, D, E, and I under Evid. Code sec. 452(d), as records of the Court to the extent that these documents were filed with the Court, but not as to the truth of the statements therein. The court cannot accept as true the contents of documents because such documents are inadmissible hearsay. Day v. Sharp (1975) 50 Cal. App. 3d 904, 914. 

 

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: 3

16-UDL-00264    THE BANK OF NEW YORK MELLON vs. SHANE J. TUSCH, et al.

 

 

The Bank of New York                   MICHAEL D. ZEFF

SHANE J. TUSCH                         MANDIP S. PUREWAL

 

 

Motion to Consolidate CIV535914

TENTATIVE RULING:

 

Plaintiff Shane and Elizabeth Tusch Motion to Consolidate or Alternatively to Stay the Unlawful Detainer is MOOT.

 

On January 3, 2017, in case number 16 UDL00264 [Unlawful Detainer], plaintiff Bank of New York Mellon and defendants Shane and Elizabeth Tusch entered into a written stipulation for judgment. Under the terms of the stipulation and the subsequent judgment entered, Shane and Elizabeth agreed to vacate the subject real property no later than February 2, 2017. The stipulation further provides that a writ of possession would issue immediately but that no lockout would occur on or before February 2, 2017.

 

Given the stipulated settlement and stipulated judgment of the unlawful detainer complaint in case No.16 UD L00264, the motion to consolidate the civil case with the unlawful detainer case is moot. Entry of judgment ends the proceeding in the unlawful detainer complaint. Further, Shane and Elizabeth Tusch have stipulated to vacating the subject property on or before February 2, 2017.

 



9:00

Line: 4

CIV458258      DAVID MELCHER VS. ELIZABETH KARNAZES

 

 

DAVID MELCHNER                         Pro/PER

ELIZABETH KARNAZES                     Pro/PER

 

 

MOTION FOR ATTORNEY'S FEES

TENTATIVE RULING:

 

This matter was continued to February 6, 2017 at 9:00 a.m. in the Law and Motion department.

 



9:00

Line: 5

CIV526079     HARRY LENCZNER vs. SC PROPERTY MANAGEMENT, INC.

 

 

SC PROPERTY MANAGMENT, INC             JOANNA KOZUBAL

HARRY LENCZNER                         PAUL J. STEINER

 

 

MOTION FOR GOOD FAITH SETTLEMENT

TENTATIVE RULING:

 

The Motion for Determination of Good Faith Settlement by Plaintiff and Defendants Quan is GRANTED.  Despite the lack of factors the court would normally take into account in making the determination of whether the settlement is in good faith, the motion is being granted in light of the remaining defendant’s non-opposition to the motion. 

 

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

CIV527347     KEALAONAPUA O'SULLIVAN LUM VS MIDPEN HOUSING ETAL

 

 

JOSEPH PRINCE ALFAFARA                 AMANDA L. EBEY

ANTHONY JOHNSON                        MARK S. POSARD

 

 

MOTION FOR SUMMARY ADJUDICATION OS ISSUES AS TO PLAINTIFF LUM'S FIRST AMENDED COMPLAINT

TENTATIVE RULING:

 

This matter is dropped from calendar as the court received a notice of settlement.

 



9:00

Line: 7 & 8  

CIV533189     MITROPOULOS VS. BUONOCORE

 

 

ELIZABETH MITROPOULOS                  PAUL J. SMOOT

CALIFORNIA VINE TIMES

 

 

7. DEMURRER to Plaintiff Elizabeth Mitropoulos' Complaint

TENTATIVE RULING:

 

Defendants’ Demurrer to Plaintiff’s First Amended Complaint (FAC) is SUSTAINED as follows:

 

With respect to all Defendants other than Annamarie Buonocore, the Demurrer to the first cause of action for stalking under Civ. Code Sect. 1708.7 is SUSTAINED WITH LEAVE TO AMEND.  Code Civ. Proc. Sect. 430.10(e).  The claim is not necessarily time-barred because the FAC alleges that on Dec. 18, 2013, Annamarie Buonocore violated a restraining order by contacting Plaintiff via LinkedIn (FAC, Parag. 39), which is less than two years before the initial Complaint was filed.  Code Civ. Proc. Sect. 335.1.  However, notwithstanding the statute of limitations issue, the FAC does not allege facts stating a claim for aiding and abetting stalking under Civ. Code Sect. 1708.7.  Even if true, the allegations do not state a claim for aiding and abetting stalking. See CACI 3610 (setting forth the elements for aiding and abetting an intentional tort). 

 

With respect to all Defendants other than Annamarie Buonocore, the Demurrer to the second cause of action for intentional infliction of emotional distress is SUSTAINED WITH LEAVE TO AMEND.  Code Civ. Proc. Sect. 430.10(e).  The FAC includes no allegations against these Defendants that can reasonably be characterized as constituting extreme and outrageous conduct (“so extreme as to exceed all bounds of that usually tolerated in a civilized community”). Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001).  Nor has it been sufficiently alleged that Defendants’ acts can be reasonably characterized as providing substantial assistance to, and encouragement of, Annamarie Buonocore’s alleged intentional infliction of emotional distress.    

 

The Demurrer to the third and fourth causes of action for intentional and negligent misrepresentation are SUSTAINED WITH LEAVE TO AMEND.  Code Civ. Proc. Sect. 430.10(e).  Due to the delayed discovery rule, the fraud claim is not necessarily time-barred.  Code Civ. Proc. Sect. 338(d) (a fraud claim does not accrue “until discovery, by the aggrieved party, of the fact constituting the fraud . . .”).  However, the FAC does not state a claim for either intentional or negligent misrepresentation.  First, the FAC does not sufficiently allege a misrepresentation of fact.  Statements pertaining to future events are generally not actionable as misrepresentations of existing fact.   Further, the FAC does not allege Vickie Buonocore knew her alleged statement was untrue at the time it was made, or that she was reckless as to its truthfulness.  See CACI 1900.  Further, the alleged facts cannot support a finding of reasonable reliance.  Moreover, the FAC does not sufficiently allege damage from the alleged misrepresentation(s).  Plaintiff alleges she relied on Vickie Buonocore’s statement(s) by not filing a civil suit.  Even if Plaintiff had filed a civil suit against Annamarie in 2009, it is entirely speculative to conclude that a civil suit would have prevented future harassment, particularly given the allegations that Annamarie has repeatedly violated restraining orders.   

 

As to the first four causes of action, it appears unlikely Plaintiff can, in good faith, amend the FAC to state a claim for relief.  However, in light of the liberal policy with respect to permitting amendments, the Court grants leave to amend as to those claims.  Any further amended Complaint shall be filed within 20 days of Notice of Entry of this Order. 

 

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 TO STRIKE PORTIONS OF Plaintiff’S FIRST AMENDED COMPLAINT  

TENTATIVE RULING:

 

Defendants Vickie Buonocore’s and In-Flight USA’s motion to strike the punitive damages claim in the first, second, and fourth causes of action is GRANTED-IN-PART.  As stated above, the Demurrer as to these claims is sustained.  Further, the allegations against the moving Defendants in these three causes of action cannot support a finding of malice, fraud, or oppression under Civ. Code Sect. 3294.  “The law does not favor punitive damages and they should be granted with the greatest caution.”  Beck v. State Farm Mut. Auto. Ins. Co. (1976) 54 Cal.App.3d 347, 355.   Civ. Code Sect. 3294 reflects a public policy determination that certain conduct—“oppression, fraud or malice”—is so reprehensible that a penalty should be exacted to deter the commission of similar wrongful acts.  This must be shown by a higher standard of clear and convincing evidence, meaning evidence so clear as to leave no substantial doubt and “sufficiently strong to command the unhesitating assent of every reasonable mind.”  In Re Angela P. (1981) 28 Cal.3d 908, 919.  The allegations against the moving Defendants in the first, second and fourth causes of action are insufficient to support a finding of malice, fraud, or oppression. 

 

The motion to strike, however, is overbroad in requesting that the Court strike a large portion (13 paragraphs) of the FAC, which appears to be virtually all references to the moving Defendants. The Court will not strike all of the paragraphs identified by Defendants.  However, the Court does strike the punitive damages claim based on the first, second, and fourth causes of action. 

 

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: 9

CIV535914      SHANE J. TUSCH, ET AL. VS. BANK OF NEW YORK MELLON, ET AL.

 

 

ELIZABETH SCHUMANN-TUSCH              MANDIP S. PUREWAL

BANK OF NEW YORK MELLON               THOMAS N. ABBOTT

 

 

MOTION TO CONSOLIDATE THE INSTANT UNLAWFUL DETAINER ACTION (16-udl-00264) OR ALTERNATIVELY STAY UNLAWFUL DETAINER

TENTATIVE RULING:

 

Plaintiff Shane and Elizabeth Tusch Motion to Consolidate or Alternatively to Stay the Unlawful Detainer is MOOT.

 

On January 3, 2017, in case number 16 UDL00264 [Unlawful Detainer], plaintiff Bank of New York Mellon and defendants Shane and Elizabeth Tusch entered into a written stipulation for judgment. Under the terms of the stipulation and the subsequent judgment entered, Shane and Elizabeth agreed to vacate the subject real property no later than February 2, 2017. The stipulation further provides that a writ of possession would issue immediately but that no lockout would occur on or before February 2, 2017.

 

Given the stipulated settlement and stipulated judgment of the unlawful detainer complaint in case No.16 UD L00264, the motion to consolidate the civil case with the unlawful detainer case is moot. Entry of judgment ends the proceeding in the unlawful detainer complaint. Further, Shane and Elizabeth Tusch have stipulated to vacating the subject property on or before February 2, 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.

 



9:00

Line: 10

CIV536292     DAVID G. ARELLA VS. ALLAN P. NUTTALL

 

 

DAVID G. ARELLA                        Pro/PER

ALLAN P. NUTTALL                       SHELLEY S. BUCHANAN

 

 

MOTION FOR JUDGMENT ON THE PLEADINGS

TENTATIVE RULING:

 

The Motion for Judgment on the Pleadings is DENIED.  The complaint states facts sufficient to show the necessary causation.  Plaintiff alleges defendant misrepresented that the trustee’s sale had been postponed and that, although he knew the sale was going forward, he failed to inform plt.  Plt alleges that, as a result of this conduct, his home was sold, he was evicted and he incurred legal fees.

 

Defendant cites no authority indicating that Wells Fargo’s breach of its duty to postpone, if any, would preclude def’s liability for the breach of independent duties he owed to the plt, particularly when, as in this case, the risk of harm to the plaintiff was foreseeable.  

 

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: 11

CLJ530172     PITCAIRN HOMEOWNERS ASSOCIATION VS. ELIZABETH MARIE

                 BARNSON KARNAZES

 

 

PITCAIRN HOMEOWNERS ASSOCIATION        JOHN L. FITZGERALD

ELIZABETH MARIE BARNSON KARNAZES       Pro/PER

 

 

MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR ADMISSIONS; REQUEST FOR PRODUCTION OF DOCUMENTS

TENTATIVE RULING:

 

The Motion of Plaintiff and Cross-Defendants Pitcairn Homeowners Association (“Pitcairn HOA”), Dan James, and Mulqueeney and Associates (collectively referred to as “Cross-Defendants”), to Compel Further Responses, and Request for Sanctions, is GRANTED.  The court finds that the Objection and Further Objection by Defendant/Cross-Complainant Elizabeth Karnazes (“Ms. Karnazes”) to the discovery propounded by Cross-Defendants, are without merit.  

 

Ms. Karnazes is ordered to provide verified responses, without objections, by February 17, 2017, to the following discovery:

 

  1. Cross-Defendants’ Request for Production of Documents, Set One
  2. Pitcairn HOA’s Request for Admissions, Set One
  3. Pitcairn HOA’s Form Interrogatories, Set One
  4. Pitcairn HOA’s Form Interrogatories, Set Two
  5. Pitcairn HOA’s Special Interrogatories, Set One
  6. Mulqueeney and Associates’ Request for Admissions, Set One
  7. Mulqueeney and Associates’ Form Interrogatories, Set One
  8. Dan James’ Request for Admissions, Set One
  9. Dan James’ Form Interrogatories, Set One

 

Cross-Defendants’ Request for Sanctions is also GRANTED.  Ms. Karnazes is to pay sanctions of $750.00 to Cross-Defendants on or before February 17, 2017.

 

Ms. Karnazes’ Request for Sanctions is DENIED.

 

Ms. Karnazes is advised that failure to comply with this order or further discovery misuse may result in the imposition of future sanctions, including evidentiary, monetary, or terminating sanctions.

 

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 Richard H. DuBois, Department 16.

 


 

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, January 19, 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-02977     MEIPING WU, et al. vs. JOHN GAO, et al.

            

 

DAVID DAVIES                          MONTE S. TRAVIS

WEIHAO CUI

 

 

WRIT OF POSSESSION

TENTATIVE RULING:

 

DENIED without prejudice.  There are no proofs of service on file.

 


 

 

 


POSTED:  3:00 PM

 

 

© 2017 Superior Court of San Mateo County