January 16, 2018
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 11, 2018

 

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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16-CIV-02486     ELIZABETH VALENCIA, et al. vs. HERON COURT

                   COOPERATIVE, INC., et al.

 

 

ELIZABETH VALENCIA                     AUDREY SMITH

HERON COURT COOPERATIVE, INC.           PHILIP A. SEGAL

 

 

PLAINTIFF’S MOTION FOR ORDER COMPELLING DISCOVERY OF DEFENDANT’S FINANCIAL CONDITION

TENTATIVE RULING:

 

Plaintiff’s motion to compel discovery of defendant’s financial condition is GRANTED.

 

Plaintiffs allege punitive damages in the third, fourth, ninth, eleventh, and twelfth causes of action. The evidence in support of the present motion fails to establish a substantial probability of prevailing on punitive damages for the fourth and eleventh causes of action. The evidence does not show that Defendant’s conduct was in retaliation for Plaintiff’s opposing the removal of Vincent Valencia from the premises (FAC para. 46) or that Defendant discriminated against Plaintiffs for associating with a person with a mental disability (Id. para. 78.) The moving and opposing evidence is consistent with Defendant’s acting to protect other tenants and its own staff.

 

The evidence does not support a substantial probability of prevailing on the claim for IIED, because it does not show that Defendant’s acts, however wrongful, were with the intent of causing emotional distress to Plaintiffs.

 

The evidence, however, does show a substantial probability of establishing entitlement to punitive damages for harassment and constructive eviction. Plaintiff offers evidence of 20 instances in which Defendant failed or refused to repair items relating to heating, water, kitchen, and bathrooms, existing for a year and sometimes two years before Plaintiffs vacated. Defendant’s Opposing papers do not contest these situations of disrepair. Defendant addresses only the issues relating to Vincent Valencia.

 

The undisputed evidence in connection with this motion shows that Plaintiffs have a substantial probability of establishing that Defendants acted with conscious disregard for the rights or safety of Plaintiffs.

 

Plaintiff is granted leave to serve financial discovery no later than January 17, 2018. Discovery responses and production of documents, if any, shall be served no later than January 31, 2018. Extensions of these deadlines must be confirmed in writing between the parties.

 

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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17-CIV-00790     SIOBHAN SMITH vs. THE CITY OF HALF MOON BAY, et al.

 

 

SIOBHAN SMITH                          KATHLEEN A. MCCORMAC

THE CITY OF HALF MOON BAY              TIMOTHY DAVIS

 

 

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

TENTATIVE RULING:

 

This matter is dropped from calendar as the entire case has been dismissed.

 

 



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17-CIV-01927     JOEL DROTTS vs. RONALD E. SNOW, et al.

 

 

JOEL DROTTS                            Pro/PER

INDEPENDENT ELECTRIC SUPPLY             STEPHEN HAYES

 

 

DEFENDANT’S HEARING ON DEMURRER TO PLAINTIFF’S THIRD AMENDED COMPLAINT

TENTATIVE RULING:

 

The Demurrer brought by defendants Ronald Snow, Independent Electric, and American Qualified Plans to Plaintiff’s Amended Complaint is sustained WITH LEAVE TO AMEND.

 

Plaintiff’s “Response” Brief Is In Violation of Several Procedural Rules. There are multiple procedural deficiencies with Plaintiff’s “Response” brief, which will be referenced herein as the “Opposition.”

 

First, a proof of service was not filed to show that the Opposition was served on Defendants. The Court will exercise its discretion to overlook this failure in light of the fact that Defendants filed a reply addressing the merits of the Opposition.

 

Second, the brief contains 61 pages or substantive argument and it is single-spaced.  California procedural rules generally limit a memorandum of points and authorities in opposition to 15-pages. Cal. Rules of Court, rule 3.1113(d); see also Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2017) ¶ 9:64.10 (citations omitted). By filing a 61-page brief, Plaintiff has violated this rule in a manner that is too significant to be overlooked. In addition, California procedural rules require that briefs be double-spaced, or, at a minimum, one-an-a-half line spaced. Cal. Rules of Court, rule 2.108; see also Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2017) ¶ 9:64-13-9:64.16 (citations omitted). By filing an Opposition that is single-space, Plaintiff has violated this rule as well. Taken together, these violations amount to Plaintiff submitting roughly six times the permissible briefing. Where a brief exceeds the page limit, the Court has discretion to treat it like a late-filed paper. Cal. Rules of Court, rule 3.1113(g); see also Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2017) ¶ 9:64.17 (citations omitted).

 

Third, the Opposition was also late-filed. The Opposition was due to be filed and served nine court days (which do not include weekends or holidays, like the New Year’s holiday) prior to the hearing. Code Civ. Proc. § 1005(b). The hearing is set for Jan 11, 2018. Therefore, the deadline to file opposition papers fell on Dec 28, 2017. Plaintiff filed his Opposition on Jan 04, 2018. Again, this delay is too substantial to be overlooked. Thus, the same rules cited above with regard to a brief that exceeds the page limit also apply here because of the late filing. Cal. Rules of Court, rule 3.1300(d); see also Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2017) ¶ 9:105.4 (citations omitted).

 

Because the Plaintiff has violated both the page limitations rules and the deadline rules, and because his violation is quite substantive with regard to both, the Court expressly declines to consider Plaintiff’s Opposition papers.

 

Uncertainty.

 

Defendants demur on grounds of uncertainty. Code Civ. Proc. § 430.10(f). The law requires that each cause of action be separately labeled, numbered, specify its nature, and specify which parties it is between. Cal. Rules of Court, rule 2.112; see also Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2017) ¶ 6:104 (citations omitted). In fact, Cal. Rules of Court, rule 2.112 provides such specificity that is suggests the following format:

 

First Cause of Action

(for Fraud)

(by plaintiff Jones against defendant Smith)

 

The operative complaint does not contain this kind of clear labeling. Moreover, it is a 56-page document, such that the failure to provide clear labeling cannot be easily overlooked. Additionally, the Plaintiff in this case is acting in pro per and Defendants are challenging Plaintiff’s authority to represent other entities in his name (i.e. “as a trustee” or “as an heir/beneficiary”) on the ground that he is not an attorney and thus not authorized to represent anyone other than himself as an individual. Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2017) ¶ 6:75. The failure to specify which entities each cause of action is between (as in the example above “by plaintiff Jones, in his capacity as beneficiary of the XYZ trust against defendants Smith and Brown, in their capacities as trustees of the XYZ trust”) makes it difficult to distinguish between where Plaintiff is representing his own, individual interests, and where he is attempting to represent interests that must be represented by an attorney. To clarify this, Plaintiff will need to specify the nature of the capacity in which he is acting with regard to each of the separate causes of action. Here, Plaintiff’s failure to abide by Cal. Rules of Court, rule 2.112 makes it impossible to parse out the various capacities in which Plaintiff is suing with regard to each of the cause of action, and that, in turn, makes it impossible to separate the proverbial wheat from the chafe in considering the substantive grounds of Defendants’ demurrer. For these reasons, Plaintiff will need to comply with Cal. Rules of Court, rule 2.112 in order to provide a complaint that is sufficiently certain to survive demurrer under Code Civ. Proc. § 430.10(f).

The remaining causes of action.

 

Because of the lack of clarity, and because it appears that even the number of claims being alleged in the Operative Complaint cannot be easily counted (the Court counted ten causes of action, the Demurrer demurs to twelve causes of action, and Plaintiff’s Opposition (which is not being substantively considered) references fourteen causes of action). As such, the Court declines to address the substantive arguments raised until the procedural deficiencies are corrected.

 

The meet and confer requirement.

 

The law requires that a demurring party meet and confer telephonically or in-person prior to filing a demurrer. Code Civ. Proc. § 430.41. Defense counsel attempted such a meet and confer by plaintiff did not cooperate.  This case, and in particular the volume and confusion of the allegations, can benefit from a good faith meet and confer effort. To that end, if Plaintiff chooses to file an amended complaint, and if Defendants choose to again demur, both parties are ordered to conduct a good faith meet and confer conference in-person or via telephone prior to that demurrer, and each is Ordered to include, with any briefing pertinent to the demurrer, a declaration setting forth the specifics of when the meet and confer occurred, what was discussed, and the issues upon which the parties could not reach agreement. Failure to do so may result in the issuance of an Order to Show Cause re Monetary Sanctions.

 

The Court notes that certain of the substantive issues raised in the briefing are particularly prime for a good faith meet and confer effort. For example, to the extent that the Plaintiff may be attempting to invoke trust remedies under Probate Code § 16420, a discussion of whether such claims are more appropriately brought in the Probate Court is appropriate. Likewise, to the extent that the parties are arguing the statute of limitations, the various documents (the emails from September 2009) and admissions (in paragraphs 89-91 of Plaintiff’s Opposition) may be used to help sharpen the arguments as to Plaintiff’s claims—particularly as to whether Plaintiff’s delayed discovery rule applies to all of his claims or only as to some of the capacities under which he is purporting to bring causes of action. Furthermore, as the parties seem to be in agreement that Plaintiff is not a licensed attorney and thus can only represent his individual interests, a meet and confer discussion should be of value in resolving several of the capacities under which Plaintiff is attempting to bring claims.

 

The Request for Judicial Notice.

 

Defendants’ Request for Judicial Notice is overruled as to Request Nos. 1-7, but granted as to Request No. 8. Defendants request judicial notice of seven emails (Request Nos 1-7) and of the fact that Plaintiff is not a licensed attorney in California (Request No. 8). Defendants make this request pursuant to Evidence Code § 452(h).

 

With regard to Request Nos. 1-7, emails are not fact “that are not reasonably subject to dispute and… capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy” as is the standard under Evidence Code § 452(h).

 

With regard to Request No. 8, the fact that Plaintiff is not a licensed attorney in California can be determined by reference to the California State Bar records, and thus is judicially-noticeable pursuant to Evidence Code § 452(h).

 

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, DEMURRING 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.

 



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17-CIV-02888     FRED H. GEISLER, MD, et al. vs. TERRY J. JOHNSTON, et al.

 

 

GENA ZISCHKE                           Jeffrey F. Ryan

TERRY JOHNSTON                         JAMES JACOBS

TEDAN SURGICAL INNOVATIONS             ROBERT BODZIN

 

 

plaintiff’s MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

TENTATIVE RULING:

 

The Motion of Plaintiffs Fred Geisler, Norman C. Fleming and Gena Zischke (“Plaintiffs”) for Leave to File Second Amended Complaint, is CONTINUED to 9:00 a.m. on March 9, 2018 in the Law and Motion Department, to allow the court to first rule on Specially Appearing Defendant Tedan Surgical Innovations, LLC’s pending Motion to Quash Service of the Summons and First Amended Complaint (“Tedan’s Motion”).  Tedan’s Motion was continued by Judge Novak from October 16, 2017 to March 2, 2018 to allow Plaintiffs to conduct discovery limited to the issues of jurisdiction. 

 

Plaintiffs contend that Tedan’s Motion is moot if this motion is granted, and Tedan must then file a new motion to quash as to the Second Amended Complaint.  Notwithstanding whether Plaintiffs’ contention is correct, the court finds that the issue of the court’s jurisdiction over Tedan should be resolved first, prior to the court ruling on Plaintiffs’ motion for leave to file the Second Amended Complaint. 

 

Defendants need not file a responsive pleading to the First Amended Complaint, pending the court’s ruling on this 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.

 

 



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17-CIV-04683   PILAR PODESTA vs. FOREVER YOUNG ASSISTED LIVING INC., et al.

 

 

PILAR PODESTA                          JAY WITHEE

FOREVER YOUNG ASSISTED LIVING INC.      BARBARA CHIANG

 

 

5. PLAINTIFF’S MOTION TO STRIKE ATTORNEY-FEE PRAYER IN DEFENDANT FOREVER YOUNG ASSISTED LIVING, INC’S ANSWER

TENTATIVE RULING:

 

This motion is dropped from calendar as it was already ruled on.  Judge Buchwald granted the motion on December 18, 2017.  See the court’s minute order.

 

 

6. PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES BY DEFENDANT FOREVER YOUNG ASSISTED LIVING, INC. TO PLAINTIFF’S FIRST SET OF FORM INTERROGATORIES, GENERAL, FIRST SET OF FORM INTERROGATORIES, EMPLOYMENT, AND FIRST SET OF REQUEST FOR ADMISSION AND REQUEST FOR MONETARY SANCTIONS AGAINST DEFENDANT

TENTATIVE RULING:

 

Counsel is expected to be familiar with, and to comply with, the California Rules of Court when filing motions.  Plaintiff’s counsel, Mr. Withee, is admonished for violating CRC Rule 3.1110(f), which requires hard tabs between exhibits.  Mr. Withee’s Dec. 13, 2017 declaration includes numerous exhibits, but with no hard tabs, making it tedious for the Court to review the attached documents.  Compliance with the Rules of Court is expected going forward.

 

Plaintiff Pilar Podesta’s motion to compel Defendant Forever Young Assisted Living, Inc. to provide further responses to Plaintiff’s first set of form interrogatories (general), form interrogatories (employment), and requests for admission, is DENIED AS MOOT, in light of Defendant’s Dec. 18, 2017 service of amended responses.  The Court acknowledges the parties’ current dispute regarding the adequacy of Defendant’s Dec. 18 responses, which are apparently the subject of an on-going meet and confer.  As this motion is directed to Defendant’s Dec. 1, 2017 objections, Defendant’s service of the Dec. 18 amended responses renders the motion moot.  Any irreconcilable dispute(s) regarding the adequacy of the Dec. 18 responses must be addressed by separate motion. 

 

With respect to the parties’ on-going meet and confer regarding the Dec. 18 responses, defense counsel is reminded that in general, discovery rights are broad.  Relevance objections are normally resolved in favor of permitting the discovery requests.  Further, the Court generally does not look favorably upon a party refusing to respond to requests on grounds of alleged vagueness or ambiguity, unless the requests are clearly unintelligible. 

 

Plaintiff’s request for sanctions against Defendant and its counsel, Ms. Mertes and Ms. Harris Chiang, jointly and severally, is DENIED.  The Court finds Defendant’s Dec. 1 objections, which included no substantive responses whatsoever, were largely frivolous and intended solely to delay.  Balanced against this is the fact that, although no party is entitled to extensions of time to respond to discovery requests, arguably, under the circumstances, Defendant’s request for a 3-week extension was at no time unreasonable. 

 

Counsel is reminded of the importance of extending professional courtesies.  Simple tasks, such as forwarding a Word version of documents to opposing counsel upon request, will make the case run more smoothly. 

 

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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17-CIV-05112     BELMONT HOTELS, LLC vs. S&R DRYWALL, INC.

 

 

BELMONT HOTELS, LLC                    PAUL H. KIM

S&R DRYWALL, INC.                      DAVID MCKIM

 

 

PLAINTIFF’S MOTION FOR ORDER REMOVING OR REDUCING MECHANIC’S LIEN

TENTATIVE RULING:

 

This matter is continued to February 2, 2018 at 9:00 a.m. in the Law and Motion Department so that it can be heard with the scheduled hearing on demurrer.

 

 



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17-CIV-05464     YUTAO JIANG vs. GENENTECH, INC., et al.

 

 

YUTAO JIANG                            LAWREANE A. BOHM

GENENTECH USA, INC.                    ALLISON GIESE

 

 

8. GENENTECH AND GENENTECH USA, INC.’S MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT

TENTATIVE RULING:

 

Defendant GENENTECH, INC.’s Motion to Strike references to “write-ups” is DENIED

 

A motion to strike is appropriate to strike all or any part of any pleading that is irrelevant or false, or that contains improper matter that is inserted in the pleading, or that is not drawn or filed in conformity with the laws of the State of California, a court rule or an order of the court.  Code Civ. Proc. § 436. 

 

Here, Defendant GENENTECH, INC. seeks to remove all references to the HR write-up that was filed against Plaintiff during his employment, arguing, as in its demurrer below, that the severity of a write-up does not rise to the level of “adverse employment action”.  However, considering that the write-up occurred around the time Plaintiff began voicing his concerns about testing irregularities and considering the difficult conversations he was having with his managers at the time (which ultimately led to his termination), it is inappropriate to make this determination at the pleading phase. 

 

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. GENENTECH AND GENENTECH USA, INC.’S HEARING ON DEMURRER TO PLAINTIFF’S COMPLAINT

TENTATIVE RULING:

 

Defendant GENENTECH, INC.’s Demurrer to Complaint is OVERRULED as to the Second Cause of Action for Adverse Employment Action in Violation of Public Policy.  This cause of action is sufficiently stated.

 

Defendant is ordered to file its Answer to Complaint on or before January 31, 2018.

 

 

A demurrer is used to challenge defects that appear on the face of the pleading, or from matters outside the pleading that are judicially noticeable.  Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Weil & Brown, Cal. Practice Guide:  Civil Procedure Before Trial (The Rutter Group 2018), Ch. 7, § 7:7.8.  When considering a demurrer, all facts pleaded in the complaint are assumed to be true.  Weil & Brown, supra, Ch. 7, § 7:5.  Moreover, a general demurrer does not lie to only part of a cause of action.  If there are sufficient allegations to entitle plaintiff to relief, other allegations cannot be challenged by general demurrer.  Kong v. City of Hawaiian Gardens Redevelop. Agency (2003) 108 Cal.App.4th 1028, 1046; Weil & Brown, supra, Ch. 7, § 7.42.2.

 

Here, Defendant GENENTECH, INC. argues that Plaintiff’s allegation of a sole write-up is not severe enough to constitute an “adverse employment action” within the scope of FEHA.  However, as discussed in Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028 and Kelley v. Conco Companies (2011) 196 Cal.App.4th 191, the Court must consider the specific facts of this case, including that the write-up occurred right around the time Plaintiff first raised his concerns about the irregular testing data, and that Plaintiff’s employment was ultimately terminated, in determining whether the action “materially affected the terms, conditions, or privileges of plaintiff’s employment”.  Yanowitz, supra.  As the Court must assume the facts of the Complaint to be true, such a factual inquiry appears inappropriate at this time.

 

Moreover, the demurrer does not dispose of this entire cause of action, since it is targeted only to the HR write-up and not to the allegation that Plaintiff was wrongfully terminated. 

 

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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17-CIV-05607     DARRELL WASHINGTON vs. GEICO

 

 

DARRELL WASHINGTON                     Gregory C. Cattermole

GEICO                                  THOMAS MURRAY

 

 

PLAINTIFF’S MOTION TO COMPEL BINDING UIM ARBITRATION AND REQUEST FOR DECLARATORY RELIEF                    

TENTATIVE RULING:

 

Plaintiff DARRELL WASHINGTON’s Petition to Compel Arbitration is GRANTED.  The Court finds that a valid and enforceable written agreement to arbitrate exists pursuant to Code Civ. Proc. §§ 1281 and 1281.2.  The parties are ordered to arbitrate their claims in accordance with American Arbitration Association rules before one neutral arbitrator, as provided in their arbitration agreement.

A determination of whether Mr. Williams was, in fact, an uninsured motorist at the time of the accident should be left to the arbitrator.

 

Here, the Geico Policy contains the following express language:

 

LOSSES WE PAY

 

Under this coverage, we will pay damages for bodily injury to an insured, caused by accident which the insured is legally entitled to recover from the owner or operator of an uninsured vehicle, underinsured motor vehicle or a hit-and-run motor vehicle arising out of the ownership, maintenance or use of the motor vehicle.

 

The amount to the insured’s recovery for these damages will be determined by agreement between the insured or his representative and us. The dispute will be arbitrated if an agreement cannot be reached.

 

DISPUTES BETWEEN US AND AN INSURED

 

If any insured making claim under this policy and we do not agree that he is legally entitled to recover damages under this Coverage from the owner or operator of an uninsured/underinsured motor vehicle because of bodily injury to the insured, or do not agree as to the amount payable, either party will have the right to demand arbitration.

 

The matter(s) in dispute shall then be settled according to American Arbitration Association rules.  One neutral arbitrator will conduct the arbitration. 

 

Geico argues that unless and until Plaintiff can definitively prove, to its satisfaction, that Lance Williams was an uninsured motorist at the time of the accident, Geico will not pay out any UIM benefits under the Policy.  There is, therefore, an obvious dispute over whether Plaintiff is “legally entitled to recover damages under this Coverage”, as well as the amount payable, since Geico asserts this amount is zero. 

 

As part of his uninsured motorist claim, Plaintiff will have the burden of proof on the issue of whether Mr. Williams was uninsured.  This factual question will, of necessity, be resolved by the arbitrator.

 

 

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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CIV537867     KATHY AI GEN TONG VS. DAVID CHAN, ET AL.

 

 

KATHY AI GEN TONG                      STEVEN M. MORGER

DAVID CHAN                             GRANT H. BAKER

 

11.  FIDELITY NATIONAL TITLE COMPANY’S HEARING ON DEMURRER TO THIRD AMENDED CROSS-COMPLAINT

TENTATIVE RULING:

 

Cross-Defendant FIDELITY NATIONAL TITLE COMPANY has not complied with Code Civ. Proc. Sec. 430.41(a).  The statute provides that before filing a demurrer, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.

   

The hearing on the demurrer is therefore continued to February 5, 2018 at 9:00 a.m. in the Law and Motion Department so that the parties may meet and confer.  The demurring party is required to file, no later than five days prior to the new hearing date, a Code-compliant declaration stating either: (1) the parties have met and conferred in person or by telephone and (a) the parties have resolved the objections raised in the demurrer, which shall be taken off calendar or (b) the parties did not reach an agreement resolving the objections raised in the demurrer; or (2) the party who filed the pleading subject to demurrer failed to respond to the meet and confer request or otherwise failed to meet and confer in good faith.  If the demurring party fails to file and serve the declaration demonstrating compliance with the requirements of Section 430.31, the demurrer will be stricken as procedurally improper.

 

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.

 

 

12. FIDELITY NATIONAL TITLE COMPANY’S MOTION TO STRIKE PORTIONS OF THE THIRD AMENDED CROSS-COMPLAINT

TENTATIVE RULING:

 

Cross-Defendant FIDELITY NATIONAL TITLE COMPANY’s Motion to Strike is continued to February 5, 2018 at 9:00 a.m. in the Law and Motion Department, to be heard in conjunction with the demurrer. 

 

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.

 

 


 

 

 

 

 


POSTED:  3:00 PM

 

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