May 29, 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, May 30, 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

Lines: 1 & 2

16-CIV-01546     WISHAM AHMED LASHUEL vs. FORD MOTOR COMPANY, et al.

 

 

WISHAM AHMED LASHUEL                   DAVID N. BARRY

FORD MOTOR COMPANY                     STEPHEN H. DYE

 

 

1. MOTION TO COMPEL DEPOSITION OF BILL PAPPAS, WITH PRODUCTION OF DOCUMENTS, ETC.

TENTATIVE RULING:

Plaintiff Hisham Lashuel’s Motion to Compel the Deposition of Bill Pappas, With Production of Documents, is GRANTED-IN-PART.  The “relevance to the subject matter” and “reasonably calculated to lead to discovery of admissible evidence” standards are applied liberally.  Any doubt is generally resolved in favor of permitting discovery.  Code Civ. Proc. Sect. 2017.010; Colonial Life & Acc. Ins. Co. v. Sup.Ct. (1982) 31 Cal.3d 785, 790; Davies v. Sup. Ct. (1984) 36 Cal.3d 291, 301; Volkswagen of America, Inc. v. Sup. Ct. (2006) 139 Cal.App.4th 1481, 1490-91.  Ford argues Mr. Pappas has limited personal knowledge of the facts, and that Plaintiff’s counsel previously deposed other persons who verified Ford’s discovery responses in other cases, and thus Mr. Pappas’ deposition will be of minimal value.  Plaintiff responds that Mr. Pappas is only Ford employee identified as a witness, and that he verified Ford’s discovery responses.  Mr. Pappas’ verifications do not state he has no personal knowledge; they state he does not have personal knowledge of “all” matters in Ford’s discovery responses.  Given the liberal scope of discovery, the Court does not find grounds to preclude the deposition.  Plaintiff may depose Mr. Pappas on a mutually agreeable date, time, and location, but only after Plaintiff is deposed. (The court has the power to order the sequence and timing of discovery under CCP Section 2019.020(b)).

As to the document requests, Ford’s Opposition states that all the documents requested in Mr. Pappas’ deposition notice have already been produced.  Accordingly, Ford shall amend its Objections to the Notice to state that all requested documents have been produced.  To the extent Plaintiff has questions about documents, he may ask them at the deposition. 

 

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, Plaintiff 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.

 

 

2. MOTION TO COMEPEL THE DEPOSITION OF PLAINTIFF, ETC.

TENTATIVE RULING:

 

Defendant Ford Motor Company’s (Ford) Motion to Compel the Deposition of Plaintiff and Production of Documents at Deposition is GRANTED.  The deposition shall take place on June 23, 2017, as the parties recently agreed.  Plaintiff did not serve objections to the document requests in Ford’s Nov. 4, 2016 deposition notice.  All objections to the document requests are waived.  Plaintiff shall produce all requested documents by June 15, 2017.    

Ford’s request for sanctions is GRANTED-IN-PART.  The Court awards sanctions against Plaintiff and his counsel, jointly and severally, in the amount of $1,500.  After having served no objections to the Ford’s Nov. 4, 2016 deposition Notice setting Plaintiff’s deposition for Jan. 18, 2017, Plaintiff’s counsel cancelled it on Jan. 17, 2017, the day before it was to take place, stating he had an obligation in another case.  Ford requested a new date, but Plaintiff did not respond.  Plaintiff only offered a new date after Ford filed this motion to compel.  Ford then offered to take this motion off-calendar in exchange for a Stipulation that Plaintiff would in fact appear on June 23 and produce all of the requested documents.  Plaintiff would not agree to a Stipulation.  Plaintiff’s agreement to the June 23 date did not render Ford’s motion moot, as Plaintiff contends, because Plaintiff refused to sign a Stipulation or agree to produce all requested documents.

 

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, Defendant 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: 3

16-CIV-02957     246 ATHERTON AVENUE LLC. vs. TRAIS FLUORS LLC, et al.

 

 

246 ATHERTON AVENUE LLC                H. MICHAEL CLYDE

JAWAD KAMAL                            COLIN H. MURRAY

 

 

MOTION TO STAY LITIGATION OF THE CROSS-COMPLAINT

TENTATIVE RULING:

 

The Motion of Plaintiff and Cross-Defendant 246 Atherton Avenue LLC to Stay Litigation of the Cross-Complaint of Defendant and Cross-Complainant Trais Fluors LLC (“Trais”) is CONTINUED to 9:00 a.m. on June 20, 2017 in the Law and Motion Department, to be heard at the same time as Trais’ motion for judgment on the pleadings.

 

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-CLJ-00903     BARCLAYS BANK DELAWARE vs. ALEKSANDER RUBLEV, et al.

 

 

BARCLAYS BANK DELAWARE                 ROBERT SCOTT KENNARD

ALEKSANDER RUBLEV                      PRO/PER

 

 

MOTION TO TRANSFER VENUE TO SANTA CLARA COUNTY

TENTATIVE RULING:

 

This matter is dropped from calendar at the request of the moving party.

 

 

 


 

9:00

LineS: 5 - 7

17-CIV-01113     ADOLFO SEQUEIRA, JR. vs. MARCEL DUC NGUYEN, et al.

 

 

ADOLFO SEQUEIRA, JR.                   PrO/PER

MARCEL DUC NGUYEN                      bARRY MARSH

 

 

5. HEARING ON DEMURRER FILED BY DEFENDANT NGUYEN

TENTATIVE RULING:

 

The Demurrer to Plaintiff’s Complaint by Defendant Duc Marcel Nguyen, M.D. (erroneously sued herein as “Dr. Marcel Duc Nguyen”) to the 2nd through 5th causes of action in the Complaint is SUSTAINED with leave to amend.

 

In Plaintiff’s brief oppositions to the demurrers, Plaintiff does not contest sustaining the demurrers with leave to amend, and states his intention to file a First Amended Complaint. Due to the health condition of counsel’s mother, Plaintiff is granted until June 30, 2017 to file Plaintiff’s First Amended Complaint.

 

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.

 

 

6. MOTION TO STRIKE PRAYER FOR PUNITIVE DAMAGES

TENTATIVE RULING:

 

The Motion to Strike Prayer for Punitive Damages by Defendant Duc Marcel Nguyen, M.D. (erroneously sued herein as “Dr. Marcel Duc Nguyen”) is off-calendar, in light of the ruling on Dr. Nguyen’s 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.

 

 

 

 

 

7. HEARING ON DEMURRER FILED BY DEFENDANT DIGNITY HEALTH

TENTATIVE RULING:

 

The Demurrer to Plaintiff’s Complaint on Behalf of Defendant Dignity Health dba Sequoia Hospital is SUSTAINED with leave to amend to allow Plaintiff to allege more specificity as to the Principle-Agency relationship between Dignity Health and Nguyen.

 

In Plaintiff’s brief oppositions to the demurrers, Plaintiff does not contest sustaining the demurrers with leave to amend, and states his intention to file a First Amended Complaint. Due to the health condition of counsel’s mother, Plaintiff is granted until June 30, 2017 to file Plaintiff’s First Amended Complaint.

 

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

17-CIV-01849     EIREEN MALLARI, et al. vs. CARRINGTON MORTGAGE

                    SERVICES, LLC, et al.

 

 

 

JUANITA D. MALLARI                     KAT ARIANEJAD

CARRINGTON MORTGAGE SERVICES, LLC.      pRO/PER

 

 

MOTION TO CONSOLIDATE

TENTATIVE RULING:

 

The motion to consolidate is DENIED.

 

When title is acquired through a trustee’s sale, courts must make a limited inquiry into the basis of the plaintiff's title." (Old National Financial Services, Inc. v. Seibert (1987) 194 Cal. App. 3d 460, 465; see also Vella v. Hudgins (1977) 20 Cal.3d 251, 255.) When an unlawful detainer action is brought by a purchaser following a trustee's foreclosure sale, the purchaser must show the sale was conducted according to statutory requirements. (Code of Civ. Proc. Sect. 1161a, subd. (b)(3).) “The plaintiff need only prove a sale in compliance with the statute and deed of trust, followed by purchase at such sale . . . .” (Byrne v. Baker (1963) 221 Cal. App. 2d 1, 5.)

 

Nothing in the civil action complaint attacks the propriety of the trustee’s sale. Rather, the Mallaris allege that Carrington Mortgage Services violated a statutory requirement that foreclosure not proceed pending a loan modification application review. (See Civil Code section 2923.6.) The remedy for violating section 2923.6 is damages. (See Id. section 2924.12, subd. (b).) (Ralph Partners erroneously cites section 2924.19(b).) Since the statutory remedy is damages, then Plaintiff’s remedy is not to declare the sale to Ralph Partners, a BFP, void.

 

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: 9

17-UDL-00372     RALPH PARTNERS II, LLC. vs. ALFONSO D MALLARI, SR, et

                      al.

 

 

RALPH PARTNERS II, LLC                 PAMELA C. JACKSON

ALFONSO D. MALLARI, SR                 SARAH SHAPERO

 

 

TO TRAIL MOTION TO CONSOLIDATE SET ON CASE 17-CIV-01849

TENTATIVE RULING:

 

The motion to consolidate is DENIED.

 

When title is acquired through a trustee’s sale, courts must make a limited inquiry into the basis of the plaintiff's title." (Old National Financial Services, Inc. v. Seibert (1987) 194 Cal. App. 3d 460, 465; see also Vella v. Hudgins (1977) 20 Cal.3d 251, 255.) When an unlawful detainer action is brought by a purchaser following a trustee's foreclosure sale, the purchaser must show the sale was conducted according to statutory requirements. (Code of Civ. Proc. Sect. 1161a, subd. (b)(3).) “The plaintiff need only prove a sale in compliance with the statute and deed of trust, followed by purchase at such sale . . . .” (Byrne v. Baker (1963) 221 Cal. App. 2d 1, 5.)

 

Nothing in the civil action complaint attacks the propriety of the trustee’s sale. Rather, the Mallaris allege that Carrington Mortgage Services violated a statutory requirement that foreclosure not proceed pending a loan modification application review. (See Civil Code section 2923.6.) The remedy for violating section 2923.6 is damages. (See Id. section 2924.12, subd. (b).) (Ralph Partners erroneously cites section 2924.19(b).) Since the statutory remedy is damages, then Plaintiff’s remedy is not to declare the sale to Ralph Partners, a BFP, void.

 

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

CIV536666     LOIS GIANNONI VS. ANDREW ABRAMS, ET AL.

 

 

LOIS GIANNONI                          PETER J. SHEARER

RICHARD TYLER                          ELIZABETH C. BONN

 

 

MOTION FOR LEAVE TO CONDUCT A MENTAL EXAMINATION

TENTATIVE RULING:

 

Defendants ANDREW ABRAMS and TARA ABRAMS’ Motion to Compel Mental Examination of Plaintiff LOIS GIANNONI is GRANTED pursuant to Code Civ. Proc. §§ 2032.310 and 2032.320.  The examination will take place as follows:

 

Date:          June 12, 2017

     Time:          1:00 pm

     Examiner:      Joanna L. Berg, Ph.D.

     Place:         5665 College Ave, Suite 240E, Oakland, CA

     Exam:          Clinical interview and normalized, psychological                          tests consisting of MMPI-2, MCMI-IV, Rorschach Performance Assessment System and Rotter Incomplete Sentence Blank (adult).

 

The clinical interview may inquire into any prior claims of emotional distress or depression plus various associated physical complaints including nervousness, anxiety, fatigue, upset stomach, headache, hair loss, chest pain, heart palpitations, weight gain, concentration difficulties, memory impairment, and anhedonia.

 

Plaintiff’s request for sanctions is denied.

 

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, Defendants are 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.

 


 

 

 

 


POSTED:  3:00 PM

 

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