July 27, 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 john l. grandsaert

Department 11

 

400 County Center, Redwood City

Courtroom 2D

 

Wednesday, July 26, 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-02097     BETH HILT vs. KENNY KWOK KWOKHINWONG, et al.

 

 

BETH HILT                              FRANK M. PITRE

YUH LIAN CHIANG                        JEFF B. ATTERBURY

 

 

MOTION FOR LEAVE FROM THE COURT TO FILE A CROSS-COMPLAINT AGAINST THE CITY OF SAN MATEO

TENTATIVE RULING:

 

The Motion is GRANTED.  Defendants shall file the proposed cross-complaint no later than July 28, 2017.  Code Civ. Proc. §428.10(b) provides that a party may file a cross-complaint setting forth any cause of action he has against a person alleged to liable thereon, whether or not such person is already a party to the action, if the cause of action arises out of the same transaction or occurrence as the cause brought against him.  The proposed cross-complaint arises out of the accident which is the subject of the complaint.  Resolving all claims arising from this accident in a single action is in the interest of justice.  (Code Civ. Proc. §428.50(c).) 

 

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, defendants shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to Cal. 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

Line: 2

17-CIV-02310     ESSAM EISSA, et al. vs. HELEN MICHAIL, et al.

 

 

ESSAM EISSA                            MARK COHEN

CHRISTIAN HUMANITARIAN AID             DAVID J. BERGER

 

 

HEARING ON DEMURRER

TENTATIVE RULING:

 

The Demurrer to the First Amended Complaint filed by defendants HELEN MICHAIL; MARY WILLIAM; BISHOY WILLIAM; JOE YOUSEF; ANDREW GORDON; and CHRISTIAN HUMANITARIAN AID (“CHA”) is OVERRULED in its entirety. 

 

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, plaintiffs shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to Cal. 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. 

 

Unless notice is waived at the time of the hearing, defendants shall file their answer to the FAC within 20 days after service of the notice of the ruling. 

 



9:00

Line: 3

17-CLJ-01855  SAN FRANCISCO FEDERAL CREDIT UNION vs. RENATO LOBUE, et al.

 

 

SAN FRANCISCO FEDERAL CREDIT UNION           BRET A. YAPLE

RENATO LOBUE                                Pro/PER

 

 

MOTION FOR JUDGMENT

TENTATIVE RULING:

 

Plaintiff’s Motion for Judgment on the Pleadings is DENIED.  Code Civ. Proc. §438(c)(1)(A) provides that a plaintiff may move for judgment on the pleadings on the grounds that the complaint states facts sufficient to constitute a cause of action and the answer does not state facts sufficient to constitute a defense. 

 

Here, plaintiff contends defendant’s answer admits that all of the statements of the complaint are true.  However, this is incorrect.  The answer asserts a general denial, stating that defendant denies generally and specifically each and every allegation and cause of action in plaintiff’s complaint.  Although the complaint is verified, defendant’s general denial is sufficient to put the material allegations of the complaint in issue in a limited civil case such as this. (Code Civ. Proc. §431.30(d).) 

 

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, plaintiff shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to Cal. 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

Line: 4

17-UDL-00516    FIRST EQUITY PROPERTY MANAGEMENT vs. ABIGAIL HOWE, et al.

 

 

FIRST EQUITY PROPERTY MANAGEMENT             Paul K. LEE

ABIGAIL HOWE                                Pro/PER

 

 

MOTION TO SET ASIDE DEFAULT/JUDGMENT

TENTATIVE RULING:

 

The Motion is DENIED.  Defendant has not attached a copy of the answer or other pleading proposed to be filed as required by Code Civ. Proc. §473(b), and the declaration in support of the motion fails to establish that defendant’s default was the result of mistake, surprise, inadvertence of excusable neglect. 

 

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, plaintiff shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to Cal. 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

LineS: 5 & 6

CIV532571     GARY CECCATO, ET AL. VS. 1893 WOODLAND EPA LLC, ET Al.

 

 

GARY CECCATO                           PETER H. BONIS

1893 WOODLAND EPA LLC                  DAVID J. LONICH

 

 

5. MOTION TO STRIKE

 

6. HEARING ON DEMURRER

TENTATIVE RULING:

 

North American Title Company, Inc.’s Demurrer to the Second Amended Cross-Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

 

The Second Amended Cross-Complaint alleges only a breach of contract cause of action against North American Title Company, Inc.  That cause of action, however, does not state any facts to show that a contract was entered into by the parties, nor that any consideration was given by Cross-Complainant. The Second Amended Cross-Complaint also fails to state facts to support the allegation that North American Title was the cause of Cross-Complainant’s alleged damages. Additionally, the alleged actions of North American are protected under Civil Code § 47’s litigation privilege, as those actions were based on, and in furtherance of, this Court’s Amended Receiver Order.

 

North American Title Company, Inc.’s Motion to Strike Portions of 1893 Woodland EPA, LLC’s Second Amended Cross-Complaint is MOOT in light of the above ruling.

 

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, Cross-Defendant North American Title Company, Inc. shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to Cal. 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

Line: 7

CIV535274   MICHAEL A. MCCARTHY, ET AL. VS. CHRISTOPHER EDWARD kaye, et al.

 

 

MICHAEL A. MCCARTHY                    JEFFREY V. TA

CHRISTOPHER EDWARD KAYE                RODRIGO E. SALAS

 

MOTION FOR ENTRY OF JUDGMENT

TENTATIVE RULING:

 

The Motion of Defendants and Cross-Complainants Christopher Edward Kaye and Teresa Robin Kaye (“Kayes”) for Entry of Judgment Pursuant to Settlement, is GRANTED as follows: 

 

On a motion under Code of Civil Procedure section 664.6, the court must determine whether the parties entered into a valid and binding settlement. (Hines v. Lukes (2008) 167 Cal.App.4th 1174, 1182.)  “A settlement is enforceable under section 664.6 only if the parties agreed to all material settlement terms.”  (Ibid.)  The court may consider the parties' declarations and other evidence in deciding what terms the parties agreed to.  (Ibid.)  If the court finds that the parties entered into an enforceable settlement, then the court should grant the motion and enter a formal judgment pursuant to the terms of the settlement.  (Ibid.) 

 

After reviewing all of the papers filed, including, the supplemental oppositions and supplemental reply, the court finds that the parties entered into a valid and binding settlement agreement.  The threshold issue raised in this case is the parties’ right of access with respect to the existing 1929 right of way easement.  The Stipulation between the parties extinguishes the 1929 right of way easement and replaces it with three easements.  (See Ta Decl., Ex. C.)  The court finds that the all of the parties signed a written stipulation agreeing to the material settlement terms, and therefore the court may enter judgment pursuant to the terms of the stipulation.  (See Code Civ. Proc., § 664.6; see also Ta Decl., Ex. C.) 

 

Plaintiffs and Cross-Defendants Michael McCarthy and Susan Chan McCarthy (“McCarthys”) contend that the stipulation is unenforceable because there are issues that were not addressed, and therefore the parties did not agree to all of the material terms.  They provide draft Formal Settlement Agreements exchanged by the parties to show that the parties cannot reach an agreement on these details. 

 

While the size and location of the second and third easements is a material term, the McCarthys do not show that an agreement was not reached.  Paragraph 3 of the Stipulation describes these easements and states they are denoted on the attached map.  (See Ta Decl., Ex. C.)  To the extent that the McCarthys now claim that the parties differ on the size and location as reflected in their proposed Formal Settlement Agreements, this appears to be an interpretation issue, and does not establish that the parties did not agree to the size and location of the easements. 

 

The remainder of the issues raised by the McCarthys are not material, but rather are details adjunct to the substance of the agreement.  (See Provost v. Regents of University of Cal. (2011) 201 Cal.App.4th 1289, 1302.)  Nonmaterial terms may be negotiated after a basic agreement has been reached.   (Ibid., citing Elite Show Services, Inc. v. Staffpro, Inc. (2004) 119 Cal.App.4th 263, 269 [“neither law nor equity requires that every term and condition of an agreement be set forth in the contract”].) 

 

The McCarthys also assert that the stipulation is unenforceable because the parties were unable to reach a maintenance agreement, as provided in the Stipulation.  There is no other language in the agreement to support the argument that the parties intended that the Stipulation would be unenforceable if the parties were unable to agree on a maintenance agreement.  To the contrary, the language in the Stipulation supports that the parties intended for the Stipulation to be a binding and enforceable agreement.  (See Ta Decl., Ex. C.)  A settlement agreement is enforceable so long as it is “sufficiently certain to make the precise act which is to be done clearly ascertainable.” (Provost, supra, at p. 1301.)  The parties agreed to draft a maintenance agreement, and the McCarthys show only that they have been unable to reach an agreement as to the terms of the maintenance agreement.  The court finds that judgment may still be entered as to the term agreed to by the parties, i.e. to draft a maintenance agreement. 

 

Accordingly, the motion is GRANTED, and judgment is to be entered pursuant to the terms of the Stipulation. 

 

The McCarthys request that judgment be entered based on the entire Stipulation rather than just the terms set forth in Attachment 8 to the Stipulation. The Kayes are therefore to submit to the court, after review by the other parties as to form, an amended proposed judgment that includes the entire Stipulation.

 

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, Defendants and Cross-Complainants Christopher Edward Kaye and Teresa Robin Kaye Inc. shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to Cal. 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

Line: 8

CIV537894     DOROTHY MCGEE VS. MI PUEBLO STORE

 

 

DOROTHY MCGEE                     GERALD H. SCHER

MI PUEBLO STORE                   CHRISTOPHER J. BEEMAN

 

 

MOTION TO COMPEL

TENTATIVE RULING:

 

The Motion is GRANTED.  Plaintiff shall provide verified responses, without objection, to the interrogatories and requests for production of documents within 10 days. 

 

The Request for Sanctions is also GRANTED pursuant to Code Civ. Proc. §§2030.290(c), and 2031.300(c).  Plaintiff shall pay defendant $400 within 10 days. 

 

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, defendant shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to Cal. 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

LineS: 9 - 11

CLJ531814     BARCLAYS BANK DELAWARE VS. ARTHUR KOSOY

 

 

BARCLAYS BANK DELAWARE                 ASHLEY MB WISTROM

ARTHUR KOSOY                           Pro/PER

 

 

9. MOTION TO COMPEL RESPONSE TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS

 

10. MOTION TO DEEM FACTS AS ADMITTED

 

11. MOTION TO COMPEL RESPONSE TO PLAINTIFF’S FIRST SET OF INTERROGATORIES

TENTATIVE RULING:

 

The Motion is GRANTED.  Defendant shall provide verified responses, without objection, to the form interrogatories and requests for production of documents within 15 days.  The genuineness of any documents and the truth of any matters in the requests for admission are DEEMED ADMITTED. 

 

If the tentative rulings are uncontested, they shall become the order of the Court. Thereafter, plaintiff shall prepare a written order consistent with the Court’s rulings for the Court’s signature, pursuant to Cal. Rules of Court, rule 3.1312, and provide written notice of the rulings  to all parties who have appeared in the action, as required by law and the California Rules of Court.

 



9:01

Line: 12

16-UDL-00076     CAPITAL ONE, N.A. vs. OSCAR BRAUN, et al.

 

 

CAPITAL ONE, N.A.                 ADAM N. BARASCH

OSCAR BRAUN                       DAVID G. FINKELSTEIN

 

 

MOTION FOR SUMMARY JUDGMENT

TENTATIVE RULING:

 

The Motion for Summary Judgment is dropped from calendar at the request of the moving party.

 



 

 

 

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 susan irene etezadi

Department 18

 

400 County Center, Redwood City

Courtroom 2L

 

Wednesday, July 26, 2017

 

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

 you must call (650) 261-5118 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

Line: 1

16-CIV-00884     CHARLES BLOOM, et al. vs. GOLDMAN, SACHS & CO, et al

 

 

MERRILL LYNCH                          PATRICK D. ROBBINS

CHARLES BLOOM                          JOHN T. JASNOCH

 

 

Complex Case Status Conference

TENTATIVE RULING:

 

This matter was removed to Federal Court in August of 2016. The matter has not been remanded to State Court. Therefore, the Complex Case Status Conference is continued for approximately 90 days to October 26, 2017 at 9:00 a.m. on the Presiding Judge’s Law and Motion Calendar.

 

 



9:00

Line: 2

17-CIV-02284     BILLY GONZALEZ vs. AVINGER, INC., et al.

 

 

Billy GONZALEZ                         lionel z. GLANCY

CANACCORD GENUITY, INC.

 

 

Complex Case Status Conference

TENTATIVE RULING:

 

This matter was removed to Federal Court in June of 2017. Therefore, the Complex Case Status Conference is continued for approximately 90 days to October 26, 2017 at 9:00 a.m. on the Presiding Judge’s Law and Motion Calendar.

 


 

 

 

 

 


POSTED:  3:00 PM

 

 

© 2017 Superior Court of San Mateo County