April 16, 2014
Law & Motions Tentative Rulings
  • Law and Motion Department Tentative Ruling Line:  (650) 363-1882
  • 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.

Special Message:

 

DUE TO A POWER OUTAGE THE TENTATIVE RULINGS COULD NOT BE POSTED ON TIME. ALL PARTIES ARE DIRECTED TO APPEAR FOR THEIR HEARING ON TUESDAY, APRIL 15, 2014. THANK YOU.  

 

In the Superior Court of the State of California

In and for the County of San Mateo

 

Law and Motion Calendar

Judge: Honorable LISA A. NOVAK

Department 13

 

400 County Center, Redwood City

Courtroom 2C

 

APRIL 15, 2014

 

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

1. YOU MUST CALL (650) 363-1882 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.  

 

    Case                  Title / Nature of Case

9:00

1

CIV 497737    STEPHANIE ROSEN VS. MYCHELLE LEUTBECHER, ET AL.

 

 

STEPHANIE ROSEN                       LAWRENCE D. MILLER

MYCHELLE LEUTBECHER                   PRO/PER

 

 

MOTION FOR ORDERS COMPELLING ANSWERS TO INTERROGATORIES BY STEPHANIE ROSEN

 

 

·         Plaintiff STEPHANIE ROSEN’s Motion to Compel Responses to Discovery Requests is DENIED.  Defendant Pacific View LLC’s default was entered on June 22, 2012.  As a result of the entry of default, Defendant cannot oppose Plaintiff’s Motion, and the Court no longer has jurisdiction over Defendant except to enter judgment or set aside a default.  See W. A. Rose Co. v. Municipal Court for Oakland-Piedmont Judicial Dist., Alameda County (1959) 176 Cal.App.2d 67, 72.  A defendant against whom a default has been entered is out of court and is not entitled to take any further steps in the cause affecting, until such default is set aside in a proper proceeding, file pleadings or move for a new trial or demand notice of subsequent proceedings.”  Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385-86.  Further, Plaintiff did not make the required showing that Defendant Pacific View LLC was properly served with the discovery requests at issue.  See Leach v. Sup.Ct. (1980) 111 Cal.App.3d 902, 905-906.  Additionally, a successful Motion to Compel Discovery Responses must show that the Discovery Requests were properly served on the responding party.  See Leach v. Sup.Ct. (1980) 111 Cal.App.3d 902, 905-906.  Here, although Plaintiff claims to have served Defendant Pacific View LLC in the Miller Declaration, the proofs of service attached to the discovery requests do not include Defendant Pacific View LLC.  Further, the Miller Declaration does not actually specify that the defendant served was Pacific View.

 

·         A party who unsuccessfully brings a motion to compel discovery shall be subject to a sanction.  This is clearly an abuse of the discovery process.  The Plaintiff’s counsel, having filed this completely unmeritorious and improper motion, shall pay a sanction of $900 to the court within 10 court days of today’s date.

 

·         If the tentative ruling is uncontested, it shall become the order of the Court. The moving party 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

2

CIV 500530    ENVIRONMENTAL CAPITAL GRUP, INC. VS. CAPITAL DYNAMICS, INC., ET AL.

 

 

ENVIRONMENTAL CAPITAL GRUP, INC.      MARK MARTEL

CALPERS CLEAN ENERGY & TECHNOLOGY     IAN JOHNSON

 

 

MOTION RE: (ANTI SLAPP) TO STRIKE BY CALPERS CLEAN ENERGY & TECHNOLOGY FUND, LLC, PCG CLEAN ENERGY & TECHNOLOGY FUND (EAST)

 

 

·         Cross-Defendant CALPERS CLEAN ENERGY & TECHNOLOGY FUND, LLC’s Special Motion to Strike is GRANTED as to Cross-Complainants PCG ASSET MANAGEMENT, LLC and PCG CLEAN TECH, LLC (“the PCG Entities”)’s First Cause of Action for Contractual Indemnity, pursuant to Code Civ. Proc. § 425.16.

 

·         CalPERS has met its burden of demonstrating that this cause of action arises out of protected activity.  City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79.  The anti-SLAPP statute governs any statements, writings and pleadings that are made “in connection with” civil litigation, regardless of whether they implicate a matter of public interest.  Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1261.  The Civil Code § 47 litigation privilege may be considered as an aid in determining whether a given communication falls within the ambit of the anti-SLAPP statute.  Flatley v. Mauro (2006) 39 Cal.4th 299, 322-325.  Clearly, the litigation privilege protects statements made in litigation, such as the filing of a complaint.  Jarrow Formulas, Inc. v. LaMarche (2008) 31 Cal.4th 728, 738.

 

·         The burden shifts to the PCG Entities to demonstrate a probability of prevailing on this claim.  Zamos v. Stroud (2004) 32 Cal.4th 958, 965.  To do so, the PCG Entities must show that the claim 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.  The Court finds that the PCG Entities have not met this burden.  The PCG Entities concede that under Delaware law, which governs the interpretation of the Operating Agreement, indemnification disputes generally cannot be resolved until the conclusion of the underlying litigation, since indemnification usually turns on whether the indemnitee has acted in good faith or otherwise fulfilled his obligations.  Majkowski v. Am. Imaging Mgmt. Servs., LLC (Del. Ch. 2006) 913 A.2d 572, 586.  The PCG Entities argue that even if an indemnity claim is not yet ripe, they have a valid claim for advancement of their legal expenses pursuant to Section 7.2 of the Operating Agreement.  There is no such claim alleged in the PCG Entities’ Amended Cross-Complaint.  Accordingly, this argument is rejected. 

 

·         If the tentative ruling is uncontested, it shall become the order of the Court.  The moving party 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

3

CIV 506451    DEVON VAENUKU VS. AMERICAN AIRLINES

 

 

DEVON VAENUKU (ULUKALALA)             PRO/PER

AMERICAN AIRLINES                     LARA VILLARREAL HUTNER

 

 

MOTION FOR SUMMARY JUDGMENT AS TO COMPLAINT of VAENUKU (ULUKALALA) FILED BY AMERICAN AIRLINES

 

 

·         Defendant American Airlines, Inc.’s motion for summary judgment is DENIED.  Defendant failed to give the requisite notice of the motion required by Code of Civ. Proc. Sec. 437c(a).  See, McMahon v. Sup.Ct. (American Equity Ins.) (2003) 106 Cal.App.4th 112, 116. 

 

·         In addition, Defendant has failed to meet its burden to show that there is a complete defense to plaintiff’s cause of action under Code of Civ. Proc. Sec. 437c(p)(2) in that it did not submit admissible evidence in support of the motion.  The declaration of Katina Brountzas is unsigned in violation of Code of Civ. Proc. Sec. 2015.5 and contains hearsay by incorporating an unsigned declaration.  The declaration of Lara Villarreal Hutner contains inadmissible hearsay in paragraphs 4 and 5.  See, Lopez v. University Partners (1997) 54 Cal.App.4th 1117, 1124.  Moreover, there is no indicia that any of the documents in the request for judicial notice were actually filed in defendant’s bankruptcy matter as they are not certified or otherwise endorsed by the court.  Finally, Exhibit C to the request for judicial notice is not an official claims register but appears to be a copy of a web page.

 

·         If the tentative ruling is uncontested, it shall become the order of the Court.  The moving party 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 507178    MARK E. YEADAKER, ET AL. VS. RESIDENTIAL CREDIT SOLUTIONS, ET AL.

 

 

MARK E. YEADAKER                      DAVID L. SMART

RESIDENTIAL CREDIT SOLUTIONS          GLENN H. WECHSLER

 

 

MOTION TO ENFORCE SETTLEMENT AGREEMENT AND FOR MONETARY SANCTIONS BY MARK E. YEADAKER, SHERI J. VITOLO YEADAKER

 

 

·         The parties and Counsel are ordered to appear.  Defendant has indicated in its opposition to the motion that a typed or “final” copy of the settlement agreement was forwarded to Plaintiffs on March 15, 2014, two days after the filing of this motion.  If Plaintiffs are in fact satisfied with that agreement and the parties have signed it, then this matter will be deemed moot.  If not, it is the Court’s tentative ruling to GRANT the motion to enforce the settlement agreement and award monetary sanctions against Defendant.  It seems untenable for Defendant to have been so dilatory in agreeing to a final product following the efforts of everyone involved to resolve this matter through mediation back in August 2013. 

 

 

_____________________________________________________________________

 

9:00

5

CIV 512066    SEAN J. ANDERSEN VS. BANK OF AMERICA

 

 

SEAN J. ANDERSEN                      MARC D. BENDER

BANK OF AMERICA, N.A.                 JASON M. RICHARDSON

 

 

MOTION FOR SUMMARY JUDGMENT AS TO 3rd Amended COMPLAINT of ANDERSEN FILED BY BANK OF AMERICA, N.A., RECONTRUST COMPANY, N.A.

 

 

·         Matter dismissed.

 

 

_____________________________________________________________________

 

9:00

6

CIV 519761    KAREN WILSON VS. LAW OFFICES OF DAVID G. FINKELSTEIN, ET AL.

 

 

KAREN WILSON                          RUSSELL H. TOWNSEND

LAW OFFICES OF DAVID G. FINKELSTEIN   JERRY R. HAUSER

 

 

SPECIAL MOTION TO STRIKE 3RD & 4TH CAUSES OF ACTION PURSUANT TO CCP 425.18 BY LAW OFFICES OF DAVID G. FINKELSTEIN, APC, DAVID M. FINKELSTEIN, BRUCE M. LUBARSKY

 

 

·         Defendant’s special motion to strike is granted as to the Fourth Cause of Action for malicious prosecution.  The cause of action arises from an act in furtherance of free speech or petition rights within the meaning of CCP §425.16(e)(1) as it is based on defendants filing an interpleader action. 

 

·         Plaintiff has not established a probability that she will succeed on this claim as she has not offered evidence to show a termination of the interpleader action in her favor, which is a necessary element of malicious prosecution.  The action was dismissed pursuant to the parties’ stipulated settlement and agreement that the funds would be released and held by a third party.  The fact that another court, in a separate proceeding, found the filing of the interpleader to be without merit for purposes of a fee award does not change the fact that the action was terminated due to a settlement. 

 

·         The motion is, however denied as to the Third Cause of Action for breach of fiduciary duty.  Plaintiff’s First Amended Complaint alleges numerous acts which constituted a breach of defendants’ fiduciary duty.  Among these are depositing the trust funds with the court in conjunction with filing the interpleader and seeking to obtain a portion of the trust funds in the interpleader action.  Clearly the, this is a mixed claim for purposes of a special motion to strike.  While plaintiff argues the protected conduct is merely incidental to the unprotected conduct, where each of several allegations purports to identify a breach of fiduciary duty, the protected conduct is not incidental.  Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539.

 

·         Plaintiff has met her burden to show a probability of success on the claim as her declaration offers evidence sufficient to support the prima facie elements of the cause of action.  To the extent defendants any claim arising from the filing of the interpleader is barred by the litigation privilege, the cause of action alleges the failure to disburse funds in accordance with the terms of the trust as an act of breach separate from the filing of the interpleader.  As to this conduct, defendants have not established the privilege applies.  In general, the privilege protects communicative conduct, not non-communicative acts. 

 

·         If the tentative ruling is uncontested, it shall become the order of the Court.  The moving party 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

7

CIV 521054   ANGELIQUE M. ALYSWORTH VS. WELLS FARGO BANK, N.A., ET AL.

 

 

ANGELIQUE M. ALYSWORTH                SEPTEMBER J. KATJE

WELLS FARGO BANK, N.A.                EDWARD R. BUELL

 

 

DEMURRER TO COMPLAINT of ALYSWORTH BY WELLS FARGO BANK, N.A., CITIBANK, N.A. AS TR FOR BEAR STEARNS ARM TR, PRIVATE MORTGAGE ADVISORS, LLC

 

 

·         Plaintiff removed the instant action to Federal Court on May 20, 2013.

 

·         On June 11, 2013, while the matter was pending in federal court, the Plaintiff filed an amended complaint against all defendants.  An order granting a joint stipulation to dismiss the 7th cause of action and to remand the remaining causes of action back to state court was signed and filed on February 20, 2014.

 

·         On March 13, 2014, defendant Wells Fargo filed a demurrer to the first amended complaint.  Opposition was filed on April 2, 2014 and a reply brief was filed on April 8, 2014.

 

·         Unfortunately, the first amended complaint was filed in federal court.  That amended complaint has never been filed in the state court and no copy of the federal first amended complaint has been provided to our court by any of the parties.

 

·         The only complaint in the state court file is the original complaint which has apparently been superseded by a first amended complaint.  At this point, there is no first amended complaint for which the court can consider a demurrer.  The court hereby orders the plaintiff to file her first amended complaint with the San Mateo County Superior Court on or before April 23, 2014.  The demurrer by defendant Wells Fargo is hereby continued to June 13, 2014.

 

 

_____________________________________________________________________

 

9:00

8

CIV 525733    ELDORADO FORKLIFT COMPANY VS. SIERRA PACIFIC RECYCLING, INC.

 

 

ELDORADO FORKLIFT COMPANY             ROBERT H. DEWBERRY

SIERRA PACIFIC RECYCLING, INC.

 

 

DEMURRER TO COMPLAINT of ELDORADO FORKLIFT COMPANY BY KENNETH P. GRAUNSTADT, JR.

 

 

·         Defendant Graunstadt’s general demurrer is SUSTAINED WITH LEAVE TO AMEND.

 

·         Defendant’ Graunstadt’s special demurrer for uncertainty is SUSTAINED WITH LEAVE TO AMEND.

 

·         Plaintiff has alleged claims on common counts, namely Account Stated and Open Book Account.  Plaintiff has failed to set forth facts sufficiently establishing one of the three elements which must be alleged:  the consideration forming the basis of the sum due yet not paid.  The Court does not accept Defendant’s position that the Plaintiff need either allege verbatim terms of the alleged “contract” nor attach a copy thereto.  Plaintiff is not alleging a cause of action for breach of contract.

 

·         If the tentative ruling is uncontested, it shall become the order of the Court. The moving party 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. 

 

·         Plaintiff shall file an amended pleading within 10 court days of service of the written order.

 

 

_____________________________________________________________________

 

 

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 ROBERT D. FOILES

Department 21

 

400 County Center, Redwood City

Courtroom 2J

 

APRIL 15, 2014

 

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

 you must call (650) 261-5121 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 512676    COUNTY OF SAN MATEO ISSUANCE OF AN INSPECTION

 

 

IN THE MATTER OF THE COUNTY OF SAN MATEO   JOHN C. BEIERS

615-11TH AVENUE MENLO PARK, CA

 

 

MOTION RE: DEMAND FOR JURY TRIAL AND OR TRIAL PREFERENCE BY HARVEY BLIGHT

 

 

·         Appear. 

 

 

______________________________________________________________________

 

 

© 2014 Superior Court of San Mateo County