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

 

Wednesday, January 10, 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-01223     MADHU SINGH vs. SMART & FINAL STORES LLC, et al.

 

 

MADHU SINGH                            PETER M. LAZARUS

smart & FINAL STORES, INC.             ROBERT RYDER

MISSION LINEN SUPPLY                   ARRON NESBITT

 

 

MISSION LINEN SUPPLY MOTION FOR SUMMARY JUDGMENT ON THE CROSS-COMPLAINT OF SMART AND FINAL AND ON PLAINTIFF’S COMPLAINT

TENTATIVE RULING:

 

Summary judgment directed at Plaintiff’s complaint as a Defendant.

 

Defendant Mission Linen Supply’s (Mission) Motion for Summary Judgment directed to Plaintiff Madhu Singh’s Complaint against Mission, which alleges one cause of action for premises liability, is GRANTED. 

 

To establish a premises liability claim, Plaintiff must demonstrate that Mission “owned/leased/occupied/or controlled the property” (i.e., the premises).  CACI 1000.  Plaintiff’s Opposition merely argues Mission may have serviced the floor mat negligently, which may have caused Plaintiff to fall.  Although the two claims are related, the elements of a general negligence claim and premises liability are not identical.  There is no evidence here, or even an allegation, that Mission (as opposed to Smart & Final) owned, leased, occupied, or controlled the premises, which is a prerequisite to establishing premises liability.      

 

Summary judgment directed at Smart & Final Cross-Complaint as a Cross-Defendant

 

Defendant Mission Linen Supply’s (Mission) Motion for Summary Judgment directed to Defendant and Cross-Complainant Smart & Final Stores LLC’s indemnity Cross-Complaint against Mission, is DENIED. 

 

As stated in the Court’s Order denying Smart & Final’s motion for summary judgment directed to Plaintiff’s Complaint, the image from the video produced by Smart & Final appears to show (that is, a reasonable trier of fact could conclude) that part of the mat was curled up and raised above the floor, and that Plaintiff tripped over it.  The Court agrees that even if the trier of fact were to find that Plaintiff tripped over the mat, that finding alone would not necessarily mean Mission was negligent.  However, given that the evidence must be viewed in a light favorable to the non-moving party, the Court cannot summarily adjudicate Smart & Final’s indemnity Cross-Complaint against Mission.  Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856. 

 

Although it would not change the result, the Court has disregarded the Declaration of Arron Nesbitt filed with Mission’s Reply brief, on grounds it is inadmissible hearsay.  Code Civ. Proc. Sect. 2015.5; Kulshrestha v. First Union Comm’l Corp. (2004) 33 Cal.4th 601, 612-618.  Nor is the “Further Evidence” submitted with Mission’s Reply authenticated by any admissible declaration. 

 

The Court also notes that while it has considered Mission’s Reply memorandum, it was not validly served.  The Proof of Service states it was served by email and regular mail.  There is evidence of an agreement by the parties to accept service by email, without which email service is not valid.  Service by regular mail is also improper, because Code Civ. Proc. Sect. 1005 requires that Reply briefs be served by overnight delivery.  The signature on the Proof of Service is also defective, for the same reason noted above.  See Code Civ. Proc. Sect. 2015.5. 

 

Mission’s “Objections to Plaintiff’s Evidence” (which appears directed to evidence offered by Smart & Final) are OVERRULED.   

 

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, moving 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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16-CIV-01654     MATTHEW TOERPE, et al. vs. RUDOLPH AND SLETTEN,

                  INC., et al.

 

 

MATTHEW TOERPE                         ZACHARIAH D. HANSEN

RUDOLPH AND SLETTEN, INC.              WILLIAM BOGDAN

 

 

MATTHEW TOERPE AND LANAE TOERPE’S MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR ADMISSION, SET ONE

TENTATIVE RULING:

 

This matter is continued to January 25, 2018 at 9:00 a.m. in the Law and Motion Department so that the summary judgment motion currently pending can be heard first.

 

 



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17-CIV-00572     EL CAMINO MOTORS, LLC vs. VALLI CONSTRUCTION,

                   INC., et al.

 

 

EL CAMINO MOTORS, LLC                  DARREN ENENSTEIN

VALLI CONSTRUCTION, INC.               MARCUS TURNER

 

 

VALLI CONSTRUCTION, INC. AND CHAD LANZA’S MOTION TO CONSOLIDATE

TENTATIVE RULING:

 

Defendants VALLI CONSTRUCTION, INC. and CHAD LANZA’s unopposed Motion to Consolidate is DENIED WITHOUT PREJUDICE for failure to comply with the requirements of California Rules of Court, Rule 3.350(a)(1)(C) and (a)(2)(B). 

 

Plaintiff EL CAMINO MOTORS, LLC’s counsel is listed as Darren Enenstein of Enenstein Pham & Glass, located at 12121 Wilshire Boulevard, Suite 600, Los Angeles CA 90025.  Defendants have served Plaintiff’s counsel at this address in the past.  However, for this motion, Defendants’ Proof of Service indicates that the moving papers were served on another attorney of the firm, Tony Cheng, at 650 Town Center Drive, Ste. 840, Costa Mesa, CA 92626. 

 

The procedure for obtaining consolidation are set forth in California Rules of Court, Rule 3.350: 

(a)  Requirements of motion

(1)  A notice of motion to consolidate must:

(A) List all named parties in each case, the names of those who have appeared, and the names of their respective attorneys of record;

(B) Contain the captions of all the cases sought to be consolidated, with the lowest numbered case shown first; and

(C) Be filed in each case sought to be consolidated. 

 

(2)  The motion to consolidate:

(A)    Is deemed a single motion for the purpose of determining the appropriate filing fee, but memorandums, declarations, and other supporting papers must be filed only in the lowest numbered case;

(B)    Must be served on all attorneys of record and all nonrepresented parties in all of the cases sought to be consolidated; and

(C)    Must have a proof of service filed as part of the motion.

 

 

Here, the motion to consolidate was not filed in Case No. 17-CIV-02016 and does not appear to have been correctly served in this case.

 

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-02564     SHALINI BHUTANI, et al. vs. SUNRUN INC., et al.

 

 

SHALINI BHUTANI                        BALI GAURAV S.

SUNRUN INC.                            DANIEL CROWLEY

 

 

SUNRUN, INC. AND SUNRUN INSTALLATION SERVICES, INC.’S MOTION TO COMPEL ARBITRATION

TENTATIVE RULING:

 

This matter is continued to February 2, 2018 at 9:00 a.m. in the Law and Motion Department by stipulation of all parties.

 

 



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

 

 

GENA ZISCHKE                           Jeffrey F. Ryan

TERRY JONHSTON                         JAMES JACOBS

TEDAN SURGICAL INOOVATIONS             ROBERT BODZIN

 

TEDAN SURGICAL INNOVATIONS, LLC’S MOTION TO VACATE OR REVOKE THE ORDER GRANTING PLAINTIFF’S LEAVE TO FILE A SECOND AMENDED COMPLAINT

TENTATIVE RULING:

 

The Motion of Specially Appearing Defendant Tedan Surgical Innovations, LLC (“Defendant”) to Vacate or Revoke the Order Granting Plaintiffs’ Leave to File a Second Amended Complaint, is GRANTED. 

 

Defendant presents new or different facts or circumstances to warrant the court’s reconsideration of its October 24, 2017 Order (“Order”).  On October 24, 2017, Plaintiffs’ counsel brought an ex parte application and presented the court with a “Joint Stipulation To Allow Filing of Second Amended Verified Complaint For Damages and Relief” (hereinafter “Joint Stipulation”) for approval.  However, although titled as a Joint Stipulation, it is clear that Defendant did not stipulate to the filing of the Second Amended Verified Complaint.  (See Decl. of Robert Bozdin.) 

 

Even though Plaintiffs’ counsel included within the Joint Stipulation that Defendant opposed the leave to amend portion (see Joint Stipulation, p.2), the court mistakenly believed it was a joint stipulation by all parties to file a Second Amended Complaint when in fact, it is not.

 

Upon reconsideration, in light of the above, the court ORDERS that the October 24, 2017 order be VACATED in its entirety. 

 

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-03802     COLDWELL BANKER COMMERCIAL-WESTBAY REAL ESTATE GROUP,

                   LLC vs. HILDA LAI

 

 

COLDWELL BANKER COMMERCIAL-WESTBAY      SEAN RILEY

REAL ESTATE GROUP, LLC

HILDA LAI                              CHARLES RIBLE

 

 

PLAINTIFF’S mOTION TO COMPEL HILDA LAI’S DEPOSITION AND PRODUCTION OF DOCUMENTS AND REQUEST FOR SANCTIONS

TENTATIVE RULING:

 

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

 



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CIV212190     DALY CITY SERRAMONTE CENTER, llc VS. J. REFLECTION, INC.

 

 

DALY CITY SERRAMONTE CENTER, LLC        ERNIE ZACHARY PARK

J. REFLECTION, INC.                    PRO/PER

 

 

7. DALY CITY SERRAMONTE CENTER, LLC’S MOTION TO COMPEL RESPONSE TO POST-JUDGMENT DEBTOR WRITTEN INTERROGATORIES AND FOR MONETARY SANCTIONS AGAINST DEFENDANT J. REFLECTION IN THE AMOUNT OF $1,035.00

TENTATIVE RULING:

 

Plaintiff’s discovery motion is GRANTED.  Defendant shall provide verified answers, without objection, to the interrogatories on or before January 26, 2018. 

 

The request for sanctions is also granted pursuant to CCP §§2030.290(c) and 2031.300(c).  Defendant shall pay plaintiff $385 for this motion on or before January 26, 2018. 

 

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.  Plaintiff shall still provide notice of entry of this order to Defendant.

 

 

8. DALY CITY SERRAMONTE CENTER, LLC’S MOTION TO COMPEL RESPONSES TO POST-JUDGMENT DEBTOR REQUEST FOR PRODUCTION OF DOCUMENTS AND FOR MONETARY SANCTIONS AGAINST DEFENDANT J. REFLECTION IN THE AMOUNT OF $1,035.00

TENTATIVE RULING:

 

Plaintiff’s discovery motion is GRANTED.  Defendant shall provide verified responses, without objection, to the production request on or before January 26, 2018. 

 

The request for sanctions is also granted pursuant to CCP §§2030.290(c) and 2031.300(c).  Defendant shall pay plaintiff $385 for this motion on or before January 26, 2018. 

 

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.  Plaintiff shall still provide notice of entry of this order to Defendant.

 

 



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CIV529639     WAI BUN KWOK, ET AL. VS. CYPRESS LAWN CEMETERY, ET AL.

 

 

GEORGE SIMS                            GREGORY BULLIUNG

CYPRESS LAWN CEMETERY ASSOCIATION       RYAN GREENSPAN

 

 

PLAINTIFF’S MOTION TO BE RELIEVED AS COUNSEL

TENTATIVE RULING:

 

Gregory Bulliung’s motion to be relieved as counsel of record for Plaintiffs is denied without prejudice for failure to establish that all required documents were served in compliance with CRC 3.1362(d). 

 

In this case, counsel has used all of the required forms, but he has not established that they were served on each plaintiffs and all other parties in compliance with CRC 3.1362(d) and CCP §1005.  The Proof of Service indicates that the notice of motion and declaration were served on Jenny Kowk on behalf of the entire Kwok family by mail on December 6, 2017.  Counsel cites no authority indicating that service on one of several named plaintiffs, even if they are family members, constitutes appropriate notice to all other plaintiffs.  Finally, the Proof of Service does not indicate that any of the moving papers were served on defendants as required by the CRC 3.1362(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.

 



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CIV538987     RAPAKKO ASSOCIATES, INC. VS. H2H PROPERTY OY

 

 

RAPAKKO ASSOCIATES, INC.               CHRISTOPHER CANTON

H2H PERFORMACE OY                       RICHARD HORNING

 

 

HINTSA PERFORMANCE OY’S MOTION TO QUASH SERVICE OF SUMMONS FOR LACK OF PERSONAL JURISDICATION

TENTATIVE RULING:

 

 

This matter is continued to February 6, 2018 at 9:00 a.m. in the Law and Motion Department by stipulation of all parties.

 

 



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17-UDL-00525     REDWOOD PROPERTY INVESTORS II, LLC vs. ARLENE

                  GASPAR, et aL.

 

 

REDWOOD PROPERTY INVESTORS II, LLC      SCOTT M. HARRIS

ARLENE GASPAR                          Pro/PER

 

 

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

TENTATIVE RULING:

 

Plaintiff REDWOOD PROPERTY INVESTORS II, LLC’s Motion for Summary Judgment as to each defendant is GRANTED. 

 

Plaintiff has established the essential elements of its unlawful detainer action: (1) that the subject Property was sold in accordance with Civil Code § 2924 and that title was duly perfected; (2) that the requisite three-day notice to quit was served on Defendants and all others in possession; and (3) Defendants held over and continued in possession past the three-day notice period.  Code Civ. Proc. § 1161a; Stephens, Partain & Cunningham v. Hollis (1987) 196 Cal.App.3d 948, 952.

 

The burden then shifts to Defendants pursuant to Code Civ. Proc. § 437c(p)(1) to establish a triable issue of material fact.  As no Opposition has been forthcoming, Plaintiff is awarded a judgment for possession only.

 

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, moving 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 and judgement are to be submitted directly to Judge Richard H. DuBois, Department 16.

 


 

 

 

 


POSTED:  3:00 PM

 

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