July 28, 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 JOSEPH C. SCOTT

Department 25

 

400 County Center, Redwood City

Courtroom 2G

 

Thursday, July 23, 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.

 

N.B. 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 525068       ALPHA CARD SYSTEMS, LLC. VS. JOLLY TECHNOLOGIES, INC.

 

 

ALPHA CARD SYSTEMS, LLC.                  MATTHEW A HAULK

JOLLY TECHNOLOGIES, INC.                  ENOCH H LIANG

 

 

MOTION FOR SUMMARY ADJUDICATION OF ISSUES BY JOLLY TECHNOLOGIES,

INC.

 

 

·         The motion is DENIED as to all three causes of action.

 

·         Defendant’s motion attempts to dispose of claims for breach of contract, breach of implied covenant, and anticipatory breach by demonstrating that Alpha Card cannot recover any damages. The 2005 and 2007 Agreements preclude recovery of special or consequential damages. Under those agreements, Alpha Card is limited to direct damages. It is also undisputed that the End User License Agreement precludes damage claims by an end user. 

 

·         The Complaint alleges that Jolly’s early termination left Alpha Card with software licenses that were now “unsalable because of Defendant's breach and refusal to provide maintenance and support . . . .” (Complaint ¶¶ 40, 48, 54.) Alternatively, the measure of damages would be the value of the licenses with maintenance and support and the value of licenses without maintenance and support. Either measure of damages is direct, not special damages.

 

·         Jolly argues that this damage is of Alpha Card’s own doing: “Jolly gave Alpha Card six months' notice before it terminated the parties’ Agreement. Alpha Card was fully capable during that time of distributing any Branded Software licenses that remained in its possession. Alpha Card chose not to do so.”  (Reply at 9:4-7). No evidence supports this Reply argument. No evidence demonstrates that Alpha Card could have distributed the licenses or was under any legal obligation to do so. This argument does not dispose of the issue of whether damage occurred, but raises a question as to whether Alpha Card failed to mitigate its damages. Mitigation of damages is a question of fact, (Sackett v. Spindler (1967) 248 Cal.App.2d 220, 239), and it was not the basis of the present motion.

 

·         For failure to dispose of the damages alleged in paragraphs 40, 48, and 54 of the Complaint, the motion must be denied in its entirety. (Code of Civ. Proc. § § 437c, subd. (f) [summary adjudication shall be granted only if it completely disposes of cause of action].) 

 

      

 

·         Jolly has also argued that Alpha Card waived any breach of confidentiality because Alpha Card expressly agreed that the EULA disclose Alpha Card’s relationship with Jolly and that Jolly was the originator of the software. The argument has merit as to that portion of the breach. However, the Complaint alleges more than disclosure to end users; it also alleges disclosure to third parties. (Complaint ¶¶ 34 & 37.)  The motion fails to address the allegation beyond end users, thereby failing to meet the moving burden. Jolly addresses this contention, not in its moving papers, but only in a Reply footnote. (Reply at 4 n.4.) The footnote’s argument that the EULA’s disclosure to end users was tantamount to disclosure to competitors is unsupported by evidence. It is minimally a question of fact.

 

·         Since the motion fails to demonstrate that Alpha Card waived all of the alleged disclosures of confidential information, it fails to demonstrate that Alpha Card cannot recover any direct damages flowing from the breach of contract or implied covenant.

 

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

 

 

 

MOTION TO QUASH DEPOSITION SUBPOENA TO EXCHANGEIT BY ALPHA CARD SYSTEMS, LLC

 

 

·         Counsel for Alpha Card, Jolly Technologies, and ExchangeIt are directed to appear and agree on a continued hearing date for the motions to quash subpoena brought by ExchangIt and Alpha Card.

 

·         The motion by ExchangeIt is not supported by any admissible evidence regarding issues of confidentiality, trade secret, overbreadth, or a non-disclosure agreement. The Declaration of Floum sets forth no personal knowledge regarding these issues. According to the moving papers, the person with knowledge of such facts was unavailable at the time the motion was required to be filed.   

 

·         Alpha Card’s motion violates the Protective Order in this action by failing to include a compliant cover sheet for every document lodged under seal. (See Protective Order ¶ 14(b) [documents lodged under seal “shall bear a legend stating that such materials shall be unsealed upon expiration of ten (10) business days, absent the filing of a motion to seal . . . or Court order”].) 

 

·         ExchangeIt shall file and serve a supplemental Declaration by a person with personal knowledge in support of its motion no later than ten court days before the continued hearing date. Jolly may file and serve, no later than five court days before the hearing, a responding brief, not to exceed 5 pages, addressing only the matters set forth in the supplemental declaration.

 

 

 

MOTION TO QUASH OR FOR PROTECTIVE ORDER REGARDING DEPOSITION SUBPOENA BY EXCHANGEIT, B.V.

 

 

·         See above.

 

 

_____________________________________________________________________


9:00

2

CIV 525991       KHALFANI JAMA VS. OFFICE DEPOT, INC., ET AL.

 

 

KHALFANI JAMA                         PRO/PER

OFFICE DEPOT, INC.                    MICHAEL E. BREWER

 

 

MOTION FOR ORDER DEEMING REQUESTS FOR ADMISSIONS ADMITTED AND FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION BY OFFICE DEPOT, INC.

 

 

·         The unopposed Motion for Order Deeming Requests for Admissions (Set One) Admitted brought by Defendant OFFICE DEPOT, INC. is GRANTED.  [Code Civ. Proc. § 2033.280].

 

·         The unopposed Motion for Summary Judgment brought by Office Depot, Inc. is GRANTED.  Defendant has demonstrated that one or more elements of each of Plaintiff’s causes of action cannot be established or there is a complete defense to it.  Plaintiff has failed to meet his burden of showing the existence of any triable issue of material fact.  [Code Civ. Proc. § 437c(p)(2); Calvillo-Silva v. Home Grocery (1998) 19 Cal.4th 714, 735].

 

·         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 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 Joseph C. Scott, Department 25.

 

 

_____________________________________________________________________


9:00

3

CIV 531403       EVANSTON INSURANCE COMPANY VS. NATIONAL UNION FIRE

                   INSURANCE COMPANY OF PITTSBURGH, PA.

 

 

EVANSTON INSURANCE COMPANY            IRENE K. YESOWITCH

NATIONAL UNION FIRE INSURANCE CO. OF PITTSBURGH, PA. KEVIN G MCCURDY

 

 

DEMURRER TO SECOND Amended COMPLAINT BY NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH

 

 

 

  • The Demurrer to the second cause of action (estoppel) by Defendant National Union Fire Insurance Co. is SUSTAINED WITHOUT LEAVE TO AMEND. The allegations do not describe any representations or actions by National Union on which Evanston relied. The allegations remain insufficient.

 

  • In addition, Plaintiff is alleging estoppel as a means of creating coverage under the National Union policy where none otherwise exists. The Second Amended Complaint expressly states that National Union should be estopped from denying coverage to Beutler.[ SAC ¶ 37]. California case law does not allow the relief that plaintiff is requesting. Coverage cannot arise through estoppel. [Aetna Casualty & Surety Co. v. Richmond (1977) 76 Cal App 3d 645, 653].

 

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

4

CIV 532785       AUTOHAUS-EUROPA, INC. VS. ERIBERTO MENDOZA

 

 

AUTOHAUS-EUROPA, INC.                 BRUCE D.M. PRESCOTT

ERIBERTO MENDOZA                      CHRISTOPHER SHENFIELD

 

 

DEMURRER TO CROSS-COMPLAINT BY AUTOHAUS-EUROPA, INC.

 

 

  • The Demurrers to the First (Violation of Bus. & Prof. Section 17200), Second (Constructive Fraud), Third (Negligent Misrepresentation), Fourth (Deceit) Causes of Action by Cross-defendants are OVERRULED.

 

  • The Demurrer as to the Fifth Cause of Action (Violation of California Franchise Investment Law) is SUSTAINED WITH LEAVE TO AMEND.  Cross-complainant must allege sufficient facts constituting a cause of action that is not outside the applicable statute of limitations. (See People Ex  rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (2002) 95 Cal. App. 4th 709; Corp. Code sections 31303, 31304 and related statutes).

 

  • Cross-complainant’s amended pleading shall be filed and served within 15 days after service of Notice of Entry of Order.

 

  • Demurring party is directed to prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court.  The order is to be submitted directly to Judge Joseph C. Scott, Department 25.

 

 

_____________________________________________________________________


9:00

5

CIV 533948       MAX KEECH VS. JAMES HAMM

 

 

MAX KEECH                             KENNETH R. VAN VLECK

JAMES HAMM

 

 

MOTION TO STRIKE PLAINTIFF’S COMPLAINT BY JAMES HAMM

 

 

  • The Special Motion to Strike pursuant to Code Civ. Proc. § 425.16 brought by Defendant James Hamm is DENIED.

 

·         Code of Civil Procedure § 425.16(b)(1) provides: “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”Section 425.16(b)(2) further states, “In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.”

 

·         A defendant specially moving to strike has the burden to show that the conduct underlying a cause of action arises from protected activity. [City of Cotati v. Cashman (2002), 29 Cal. 4th 69, 79]. Once this has been established, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the claim.  [Zamos v. Stroud (2004) 32 Cal. 4th 958, 965].  In order to do so, the plaintiff must show that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence is credited. [Id].

 

·         Section 425.16(e) describes four categories of conduct that constitute protected activity under the statute, including “(3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”  [Code Civ. Proc. § 425.16(e)(3)-(4)].  

 

·         Section 425.16 cannot be invoked by a defendant whose protected activity is illegal as a matter of law, and for that reason, not protected by constitutional guarantees of free speech and petition. [Flatley v. Mauro (2006) 39 Cal. 4th 299, 317 ].

 

·         Even if the Court were persuaded that the Defendant’s statements were protected under the statute, the motion must be denied because Plaintiff has a probability of prevailing on the claims. The probability of prevailing is demonstrated if the plaintiff presents evidence establishing a prima facie case which, if believed by a trier of fact, will result in a judgment for the Plaintiff. [Mattel, Inc. v. Luce, Forward, Hamilton & Scripps (2002) 99 Cal. App. 4th 1179, 1188-1189].  If plaintiff meets its burden, the motion must be denied.  [Ibid].  Plaintiff need only show is that the complaint is not “meritless;” i.e., that it is legally sufficient and supported by a prima facie showing of facts to sustain a favorable judgment. [Rusheen v. Cohen (2006), 37 Cal. 4th 1048, 1056].  Based on this standard, Plaintiff has demonstrated a probability of prevailing on the claims in the Complaint.

 

·         Defendant’s Request for Judicial Notice is GRANTED.

 

·         Plaintiff’s Objections to Defendant’s Evidence are SUSTAINED.   A declaration made upon information and belief is insufficient evidence. The objection to Exhibit A attached to Defendant’s declaration is sustained on the grounds that is lacks foundation and is hearsay.

 

  • 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 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 Joseph C. Scott, Department 25.

 

 

_____________________________________________________________________


9:00

6

CLJ 211287       MELISA GUADALUPE RIOS VS. CYNTHIA B. MCCOY

 

 

MELISA GUADALUPE RIOS                 PRO/PER

CYNTHIA B MCCOY                       PRO/PER

 

 

MOTION TO STRIKE UNLAWFUL DETAINER COMPLAINT BY CYNTHIA B. MCCOY

 

 

·         Moot. A 1st Amended Complaint was filed on June 24, 2015.

 

 

_____________________________________________________________________


 

 

In the Superior Court of the State of California

In and for the County of San Mateo

 

Presiding Judge Law and Motion Calendar

Judge: HONORABLE JOHN L. GRANDSAERT

Department 11

 

400 County Center, Redwood City

Courtroom 2D

 

Thursday, July 23, 2015

 

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

 you must call (650) 261-5111 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 528509       JAMES HAGGARTY, ET AL. VS. CHARLES HAGGARTY, ET AL.

 

 

JAMES HAGGARTY                        JOHN P. CHRISTIAN

CHARLES HAGGARTY                      WALTER J.R. TRAVER

 

 

MOTION TO CONTINUE TRIAL DATE BY JAMES HAGGARTY, ET AL.

 

 

  • Plaintiff’s Motion to Continue Trial is GRANTED.  Trial is continued from August 3, 2015 to October 26, 2015.  Unless agreed to by stipulation, any extension of discovery deadlines must be sought by noticed motion from the Law and Motion Department.  Plaintiff to provide notice to all parties of this court’s order.

 

 

_____________________________________________________________________

 

 

 

 

In the Superior Court of the State of California

In and for the County of San Mateo

 

Law and Motion Calendar

Judge: Honorable JOSEPH C. SCOTT

Department 25

 

400 County Center, Redwood City

Courtroom 2G

 

Thursday, July 23, 2015

 

IF YOU INTEND TO APPEAR ON ANY CASE ON THIS CALENDAR YOU MUST DO THE FOLLOWING:

3. YOU MUST CALL (650) 261-5125 BEFORE 4:00 P.M. TO INFORM THE COURT OF YOUR INTENT TO APPEAR.

4. 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.

 

N.B. 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

9:01

1

CIV 522390       ANDY SABERI, ET AL. VS. SAEED GHAFOORI, ET AL.

 

 

ANDY SABERI                           BEHROUZ SHAFIE

SAEED GHAFOORI                        ORESTES A. CROSS

 

 

Motion to Enforce Court Order and for Terminating Sanctions BY Saeed Ghafoori

 

 

 

·         Appear.

 

 

_____________________________________________________________________


 

In the Superior Court of the State of California

In and for the County of San Mateo

 

Special Set Calendar

Judge: Honorable V. RAYMOND swope

Department 23

 

400 County Center, Redwood City

Courtroom 7D

 

Thursday, July 23, 2015

 

IF YOU INTEND TO APPEAR ON ANY CASE ON THIS CALENDAR YOU MUST DO THE FOLLOWING:

5.  YOU MUST CALL (650) 261-5123 BEFORE 4:00 P.M. TO INFORM THE COURT OF YOUR INTENT TO APPEAR.

6.  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.

 

N.B. Notifying CourtCall with your intent to appear is not an alternative to notifying the court.  

 

Case                   Title / Nature of Case

9:00

1                             

CIV 508978  suzanne m. valente VS. Michael h. whitehill

 

 

suzanne m. valente                    COREY A. EVANS

Michael h. whitehill                  JAMES A. MUROHY

 

 

MOTION FOR SANCTIONS PURSUANT TO CCP 128.7 BY MICHAEL H. WHITEHILL

 

·         Defendant Michael H. Whitehill’s Motion for Sanctions pursuant to CCP § 128.7

 

·         Is GRANTED for the following reasons.

 

·         Procedurally, this Court has jurisdiction to hear the instant motion, as the Court of Appeal has issued a remittitur, which is the act by which the reviewing court transfers jurisdiction to the court reviewed.  In re Anna S. (2010) 180 Cal.App.4th 1489, 1500, Gallenkamp v. Superior Court  (1990) 221 Cal.App.3d 1, 12. When the remittitur issues, the jurisdiction of the reviewing court terminates and the jurisdiction of the trial court reattaches.  In re Anna S. at 1500.

 

·         Regarding the merits of Defendant’s motion, whether Section 128.7 sanctions are available is an objective standard by which  the Court reviews the pleading, motion or document filed and asks whether it is frivolous, legally unreasonable or without factual foundation. Bockrath v. Aldridge Chemical Company (1999) 21 Cal.4th 71, 82. Section 128.7 is modeled after Federal Rule of Civil Procedure, Rule 11, for the purpose of deterring frivolous actions and costly, meritless maneuvers by a party or counsel. Cromwell v. Cummings (1998) 65 Cal.App.4th Supp. 10, 14.  Under Rule 11, frivolous filings are those that are both baseless and made without a reasonable and competent inquiry. Estate of Blue v. County of Los Angeles (9th Cir. 1997) 120 F. 3d 982, 985.  An attorney’s good faith is not determinative of whether sanctions should be imposed.  Rather, the inquiry goes to the reasonableness of the attorney’s inquiry in the law and facts.  G.C. & K.B. Investments v. Wilson (9th Cir. 2009) 326 F. 3d 1096, 1109. 

 

·         Here, it was not reasonable for Plaintiff’s attorney to file this verified Complaint when it is clear from its face that Plaintiff’s claims are all time-barred.  Plaintiff specifically alleges that she “suffered injury” from Defendant’s actions in August 2008, after she lost the retrial on the punitive damages issue in the underlying action.  The Complaint in this matter was not filed until October 12, 2011, over three years later.  On December 23, 2011, Defendant’s counsel wrote Plaintiff’s counsel a detailed letter explaining how Plaintiff’s claims were all time-barred.  Another letter was sent to Plaintiff’s counsel on February 29, 2012, requesting that the Complaint be withdrawn.

 

·         The only response from Plaintiff’s counsel cited the unpublished decision of Wilkerson v. Portner (2009) 2009 WL 485901, and Levine v. Diamanthuset, Inc. (N.D.Cal.1989) 722 F.Supp. 579, 590 (reversed on other grounds in Levine v. Diamanthuset, Inc. (9th Cir.1991) 950 F.2d 1478)  wherein the four-year statute of limitations was applied to an unfair business practice claim against an attorney, without any discussion as to whether that was the appropriate limitations period.  These are the same cases cited in Plaintiff’s Opposition.

 

·         However, California Rules of Court, Rule 8.115(a) provides that any court of appeal opinion “that is not certified for publication or ordered published must not be cited or relied upon by a court or a party in any other action.”  Thus, Plaintiff’s reliance on Wilkerson, an unpublished decision, as the basis for her Complaint is not reasonable, especially considering she was represented by counsel.

 

·         For the foregoing reasons, Defendant’s Motion for Sanctions pursuant to Code of Civil Procedure § 128.7 is GRANTED.  Defendant is hereby awarded sanctions in the amount of $8,012.00, which is the amount supported by counsel’s declaration (39.8 hours x $190 per hour, plus $450 appearance fee and filing fee). The court further finds that the fees and costs are reasonable.

 

·         IT IS SO ORDERED.

 

 

_____________________________________________________________________

 

 

 

 


POSTED:  3:00 PM

 

 

 

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