January 23, 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

 

Tuesday, January 17, 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-00243  MICHAEL SHAPIRO vs. YELLOW CAB COOPERATIVE, INC., et al.

 

 

MICHAEL SHAPIRO                        CHRISTOPHER B. DOLAN

YELLOW CAB COOPERATIVE, INC.

 

 

MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT

TENTATIVE RULING:

 

The Motion to Strike is DENIED.  The First Amended Complaint alleges facts sufficient to constitute malice within the meaning of Civil Code §3294.  Malice is defined as conduct intended to cause injury to the plt or despicable conduct carried on with a willful and conscious disregard for the rights or safety of others. §3294(c)(1).  Conscious disregard is established where the plt shows the def was aware of the probable dangerous consequences of his conduct but willfully and deliberately failed to avoid them.  Oppression is despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.  §3294(c)(2). 

     The FAC alleges facts sufficient to show malice.  It states that defs Yellow Cab Company, Hint Peripherals and Yellow Card Services, were aware of prior injuries to passengers in taxi cabs due to defects in the credit card readers and mounting devices which were identical, or materially similar to, the credit card reader and/or mounting device which caused injury to plt.  Despite this knowledge, none of the defs took reasonable steps to warn the public of these defects and dangers or to ensure that the devices were safe. 

     To the extent def contends that the allegations in the FAC are conclusory, this argument lacks merit.  The facts to be pleaded are those upon which liability depends, i.e. the facts constituting the c/a.  These are commonly referred to as ultimate facts.  See Weil & Brown §6:123, citing Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 549-550.  Here, plt alleges that def had knowledge of prior identical or materially similar accidents.  This is not a conclusion, it is an ultimate fact. 

 

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: 2 & 3

16-CIV-02381     SALVADOR RANGEL vs. CIPRIANO RANGEL, et al

 

 

RANGEL, SALVADOR                       SULLIVAN, GARY W.

CIPRIANO RANGEL

 

 

2. demurrer to THE FOURTH CAUSE OF ACTION OF PLAINTIFF'S COMPLAINT

TENTATIVE RULING:

 

The unopposed Demurrer to the 4th Cause of Action for unjust enrichment by Defendant Cipriano Rangel is SUSTAINED without leave to amend. The 4th cause of action is based on the argument that defendant breached the residential lease between the parties by subletting the house to a subtenant without plaintiff’s knowledge or consent. It is based on the alleged breach of contract. A plaintiff cannot recover on an unjust enrichment theory where the alleged unjust enrichment arises out of a breach of contract. See Wilmer v. Sunset Life Insurance Co. (2000) 78 Cal App 4th 952, 958-59.

 

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.

 

 

3. MOTION TO STIKE PORTIONS OF PLAINTIFF’S COMPLAINT

TENTATIVE RULING:

 

 

The Motion to Strike by defendant Cipriano Rangel is GRANTED without leave to amend as to all references to a request for attorney’s fees paragraphs 10(c), BC-5, CC-3 [page 4] and CC-3 [page 5]. Plaintiff does not oppose this request as the residential lease between the parties does not contain an attorney’s fees provision.

 

The Motion to Strike by defendant Cipriano Rangel is GRANTED with leave to amend as to the phrase “ failing to pay late charges.” Orozco v.Casimiro (2004) 121 Cal App 4th Supp. 7, 12. Plaintiff has not sufficiently pled the elements of a claim for liquidated damages but leave to amend is granted so that he may attempt to do so if he wishes. See Civil Code §§1671(d), 1951.5.  The amendment must be filed within 10 days of the hearing 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.

 

 



9:00

Line: 4

16-UDL-00105     WORKING DIRT, LLC vs. ROCKY D RAYNOR, et al

 

 

WORKING DIRT, LLC                      JOANNA KOZUBAL

ROCKY D. RAYNOR                        Pro/PER

 

 

MOTION FOR SUMMARY JUDGMENT

TENTATIVE RULING:

 

APPEAR.  The parties are to update the court as to the status of Defendant’s bankruptcy proceeding.

 



9:00

Line: 5

CIV518367     GEORGE KANAKIS VS. ERENDIRA JUDITH OLIVAS

 

 

GEORGE KANAKIS                         JOHN P. KRISTENSEN, ESQ

ERENDIRA JUDITH OLIVAS                 KEVIN J. GRAY

 

 

MOTION TO REOPEN DISCOVERY AFTER NEW TRIAL DATE AND ALLOWING DISCOVERY

TENTATIVE RULING:

 

Defendant Erendira Olivas’ Motion to Reopen Discovery is GRANTED.  Given the recent trial continuance and the fact that Plaintiff’s medical treatment has apparently been on-going, the Court agrees it is fair and reasonable, and that Defendant has shown good cause, for an order permitting narrowly-tailored supplemental discovery requests seeking an update on Plaintiff’s current condition, including any recent medical care and/or surgery.  Code Civ. Proc. Sect. 2024.050.  The Court finds Plaintiff has not provided good cause for its alternative request to re-open discovery for all purposes, and that request is denied.  Code Civ. Proc. Sect. 2024.050.   

 

Defendant may serve, within two days of the hearing on this motion, one set of supplemental interrogatories and one set of supplemental requests for production of documents, which shall be narrowly-tailored and limited to obtaining an update on Plaintiff’s current condition, and documents relating to any recent medical care/surgery.  Verified responses shall be served and all documents produced by Feb. 24, 2017.  

 

Any requests for sanctions are denied. 

 

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

CIV535902     REGINA MANANTAN VS. WELLS FARGO BANK, N.A., ET AL.

 

 

REGINA MANANTAN                        TIMOTHY L. MCCANDLESS

NATIONAL ASSOCIATION                   BRIAN S. WHITTEMORE

 

 

MOTION TO EXPUNGE LIS PENDENS

TENTATIVE RULING:

 

The Motion of Defendant Moab Investment Group, LLC (“Defendant”) to Expunge

Lis Pendens, is GRANTED, and the Notice of Pendency of Action is ORDERED

EXPUNGED.

 

The court shall order that the notice be expunged if the court finds that the

claimant has not established by a preponderance of the evidence the probable

validity of the real property claim. (Code of Civ. Proc. § 405.32.) The “probable

validity” in section 405.32 however, was written from the perspective of a trial

court judge trying to forecast, at some point before trial, the “probable” outcome

in the trial court, and is silent in the context of a trial judge trying to forecast the

probable outcome in the appellate court. (Amalgamated Bank v. Sup. Ct. (2007)

149 Cal.App.4th 1003, 1013, citing Mix v. Sup. Ct. (2004) 124 Cal.App.4th 987,

995.) A trial court confronted with an expungement motion after judgment

against the claimant and while an appeal is pending, must grant the motion unless it finds it more likely than not that the appellate court will reverse the judgment. (Amalgamated Bank, supra at 1015.) Here, Plaintiff fails to establish a likelihood that the appellate court will reverse the judgment entered in favor of Defendant and against Plaintiff.

 

Defendant’s request for attorney’s fees and costs is DENIED as the court finds substantial justification in contesting the motion..

 

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.

 



9:00

Line: 7

CIV536725     JAMES HAGGARTY, ET AL. VS. CHARLES HAGGARTY, ET AL.

 

 

JAMES HAGGARTY                         SHAUNA N. CORREIA

WDJ&CO                                 GREGORY J. WOOD

 

 

APPLICATION TO SEAL EXHIBTS

TENTATIVE RULING:

 

The unopposed Motion to Seal Exhibits brought by Defendants Norman T. Dress and WDJ & Co. CPAs, LLP is GRANTED. Exhibits “C”. “D” and “E” attached to the declaration of Norman Dress in support of Motion for Summary Judgment are order sealed.  The Defendants have demonstrated facts that establish that there is not only an overriding interest which supports sealing the exhibits and overcomes the weighty right of public access to the records, but also that there is a substantial probability that the overriding interest will be prejudiced if the record is not sealed, that the proposed sealing is narrowly tailored and that there are no less restrictive means to achieve the overriding interest. CRC, Rule 2.550(d).

 

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: 8

CIV537205     ACSEL HEALTH, LLC VS. CAMPBELL ALLIANCE GROUP, INC.

 

 

ACSEL HEALTH, LLC                      THOMAS M. MCINERNEY

CAMPBELL ALLIANCE GROUP, INC.          JONATHAN EDWARD SOMMER

 

 

MOTION TO COMPEL

TENTATIVE RULING:

 

Plaintiff ACSEL HEALTH, LLC’s Motion to Compel Further Discovery Responses is GRANTED.  Defendant CAMPBELL ALLIANCE GROUP, INC. is ordered to serve full and complete, verified responses to (1) Form Interrogatories (Set One); (2) Form Interrogatories – Employment (Set One); (3) Special Interrogatories (Set One); (4) Requests for Production of Documents (Set One); and (5) Requests for Admissions (Set One). 

 

With respect to the Requests for Production of Documents, where Defendant asserts an objection based on attorney-client privilege or attorney work product, Defendant must produce a privilege log pursuant to Code Civ. Proc. Sec. 2031.240(c).

 

All responses must be served no later than February 3, 2016. 

 

Plaintiff’s request for monetary sanctions is DENIED.  The court finds substantial justification for defendant’s action in light of the then pending motions that could have been dispositive of the entire case.  

 

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.

 

 



9:00

Line: 9

CIV537891     JOSUE BONET VS. KHACHO ENTERPRISES, INC., ET AL.

 

 

JOSUE BONET                            SCOTT MAURER

KHACHO ENTERPRISES, INC.               MATTHEW J. WEBER

 

 

MOTION TO COMPEL FURTHER RESPONSES TO WRITTEN DISCOVERY

TENTATIVE RULING:

 

Defendant’s Motion to Compel Further Responses to Written Discovery is DENIED. The discovery requests at issue, Request for Admission nos. 21 and 22 and Form Interrogatory no. 17.1, are irrelevant to the Plaintiff’s claims in this action and the defense of unclean hands.

 

There does not appear to be a direct connection between the use of another’s Social Security number or a made up Social Security number and the defense of unclean hands.  It does not appear from the moving papers that the Social Security number issue played any material role in the issues raised in the complaint or in the affirmative defense.  In general, the doctrine of unclean hands is disfavored in consumer actions because it could undermine the protective purposes of the consumer law. Mendoza vs. Ruesga (2008) 169 CA4th 270, 282.

 

All requests for sanctions are denied.

 

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

CIV539056     DIXON CHAN, ET AL. VS. MODERN HOME REMODELING, INC.

 

 

DIXON CHAN                             PATRICK J. WHITEHORN

MODERN HOME REMODELING, INC.

 

 

 

MOTION TO DEPOSIT BY STAKEHOLDER

TENTATIVE RULING:

 

Defendant/Cross-Complainant Wesco Insurance Company unopposed Motion to Deposit by Stakeholder and for Discharge and Attorney’s Fees is granted pursuant to CCP §386.5.  Defendant/Cross-Complainant Wesco Insurance Company is awarded the sum of $3000 in attorney’s fees pursuant to CCP §386.6.

 



9:00

Line: 11

CLJ211895     MOAB INVESTMENT GROUP VS. REGINA B. MANANTAN

 

 

MOAB INVESTMENT GROUP, LLC             JOANNA KOZUBAL

REGINA B. MANANTAN                     TIMOTHY L. MCCANDLESS

 

 

MOTION TO ENFORCE SETTLEMENT AGREEMENT

TENTATIVE RULING:

 

      Plaintiff Moab Investment Group, LLC’s Motion to Enforce the Settlement is DENIED without prejudice. Plaintiff is pursuing the motion pursuant to paragraph 4 of the settlement agreement. That paragraph provides that in the event that Manantan’s civil case, San Mateo County Superior Court case No. CIV 535902 is dismissed, and/or judgment is entered against Manantan, plaintiff shall be entitled to a judgment for possession pursuant to paragraph 6.

      In that case, CIV 535902, the court did sustain Moab’s demurrer to the second amended complaint in the civil action, and granted a judgment for dismissal. However, Both the order sustaining the demurrer and the judgment of dismissal are stayed pending the appeal filed by Manantan. Pursuant to the terms of the settlement agreement, as long as defendant is in compliance with the monthly payments required under paragraph 3, defendant is permitted to retain possession while the appeal is pending.

 

        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

 

© 2017 Superior Court of San Mateo County