April 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 RICHARD H. DuBOIS

Department 16

 

400 County Center, Redwood City

Courtroom 7A

 

Friday, April 21, 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-02941     CHERIF MEDAWAR, et al. vs. NYLE MAMEESH, et al.

 

 

CHERIF MEDAWAR                         NIALL P. MCCARTHY

NYLE MAMEESH                           MICHAEL D. LIBERTY

 

 

1. hearing on demurrer to first amended complaint

TENTATIVE RULING:

 

The Demurrer to First Amended Complaint by Defendant Nyle Maneesh and NEC Holdings LLC is OVERRULED.

 

On demurrer, the factual allegations in the complaint, together with all reasonable inferences, must be accepted as true. Wolfe v. State Farm Fire & Cas. Ins. Co. (1996) 46 Cal. App. 4th 554, 559-560. A demurrer may be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. Blank v. Kirwan (1985) 39 Cal. 3d 311, 318. All facts are to be construed in the light most favorable to the plaintiff. Purdue v. Crocker Natl. Bank (1985) 38 Cal. 3d 913, 922.

 

As for the 2nd cause of action, Plaintiffs argue that the actions alleged are different from the 1st cause of action for breach of contract. The joint venture agreements provided for “project management” by Defendants, but did not say how “project management” was to be performed. The First Amended Complaint alleges that Defendants frustrated Plaintiffs’ rights under the contract by providing intentionally inaccurate estimates of the cost and duration of the projects and intentionally obstructing and delaying the project by sending the contractor to Defendant Anand’s private job for six weeks. These allegations are not superfluous, because they do not breach express language of the joint venture agreements (which only call for “project management” without more), but allege possible breach the implied covenant of good faith and fair dealing.

 

As for the 4th cause of action, Defendants argue that there is no claim for aiding and abetting a breach of fiduciary duty, yet Plaintiffs provide California case law that such a cause of action exists. Am. Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal. App. 4th 1451. Aiding and abetting focuses on whether a defendant knowingly gave substantial assistance to someone who performed wrongful conduct, as opposed to whether the defendant agreed to join the wrongful conduct. Am. Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal. App. 4th 1451, 1475-1476. The aider and abetter’s conduct need not, as separately considered, constitute a breach of duty. Ibid. 

 

As for the 8th cause of action, violation of B&P sec. 17200, for unlawful, unfair or fraudulent business practices, Plaintiffs have pleaded actions by Defendants that may be considered unfair or fraudulent, such as the Defendants sending the contractors from a project to Defendant Anand’s private project elsewhere for six weeks, and Defendant Mameesh’s knowing about this diversion, but not informing Plaintiffs. Whether any of the actions are true, or rise to the level of “unfair” is not a question to be considered at the pleading stage. The allegations were made, which is sufficient to withstand the 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.

 

 

2. Motion to strike portions of first amended complaint

tentative ruling:

 

Motions to strike are covered by CCP sec. 436, which states that a Court may strike out any irrelevant, false or improper matter in any pleading. As with a demurrer, the grounds for a motion to strike are extremely limited and must appear from the face of the Complaint or judicially noticeable matters. CCP sec. 437. For purposes of a motion to strike, the allegations of the Complaint are deemed true. Blakemore v. Superior Court (2005) 129 Cal. App. 4th 36, 53.

 

Defendants Nyle Mameesh and NEC Holdings LLC’s Motion to Strike Portions of the First Amended Complaint is DENIED.

 

The First Amended Complaint contains sufficient allegations to state a claim for punitive damages, as the fraud and breach of fiduciary duty causes of action could be fraudulent or malicious within the meaning of Civil Code sec. 3294, which requires a showing of oppression, fraud, or malice.

 

The First Amended Complaint alleges misrepresentations by Defendant Mameesh in the present tense, as if they are continuing. Defendant’s claim in the reply to the opposition that he “wants to distance himself as far as possible from Plaintiff Medawar” is insufficient to defeat the allegations in the First Amended Complaint, as the Court cannot consider anything not on the face of the complaint or judicially noticeable.

 

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

Lines: 3 & 4

17-CIV-00620     WESLEY NG, et. al. vs. KITOV PHARMACEUTICALS HOLDINGS

                      LTD., et. al.

 

 

CHRISTOPHER D. ZULCH                   ROBERT C. MOEST

KITOV PHARMACEUTICALS HOLDINGS LTD.     CRAIG C. CROCKETT

 

 

3. application to appear as counsel pro hac vice – aurora cassirer

TENTATIVE RULING:

 

The application to appear pro hac vice is off calendar by order entered April 13, 2017.

 

 

4. application to appear as counsel pro hac vice – bennet moskowitz

tentative ruling:

 

The application to appear pro hac vice is off calendar by order entered April 13, 2017.

 



 

9:00

Line: 5

CIV339119     H. LYN GARDELLA VS. REMY BERNASCONI

 

 

H. LYN GARDELLA                        david m. sloan

REMY BERNASCONI                        Pro/per

 

 

order to show cause hering why an order for sale of dwelling should not issue

TENTATIVE RULING:

 

The application for Order of Sale of Dwelling is DENIED.

 

An application for Order of Sale of Dwelling must be executed under penalty of perjury. (Code of Civ. Proc. § 704.760.)  The application before the Court is verified, but the verification is only on information and belief. (See Application at 4:19-20.)  “An affidavit based on information and belief is hearsay and must be disregarded ..., and it is ‘unavailing for any purpose’ whatever.... A ruling ‘of the court is to be based upon facts which may be presented to it, and not upon the belief of the affiant.’ ... Such allegations on ‘information and belief’ furnish ‘“no proof of the facts stated...’” (Thiebaut v. Blue Cross of Indiana, (1986) 178 Cal.App.3d 1157, 1161.)

 

A declaration on information and belief is proper only where permitted by statute or “where the facts to be established are incapable of positive averment.” (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 86.) Declarations by moving party's counsel as to essential facts are generally objectionable and inadmissible as hearsay, except where the lawyer somehow has personal knowledge of the facts. (Star Motor Imports, Inc. v. Sup.Ct. (Shake) (1979) 88 CA3d 201, 204.) The application does not demonstrate personal knowledge of Judgment Creditor’s attorney who signed the verification. It also does not demonstrate Judgment Creditor’s personal knowledge.

 

In the context of enforcing judgments, strict compliance with the applicable statutes is required.  (Epstein v. Abrams (1997) 57 Cal. App. 4th 1159, 1166–67.)  Since the verification is not based on personal knowledge, the application is not submitted under penalty of perjury.

 

In addition, various statements in the application are on the “information and belief” of the Judgment Creditor, who has not signed the verification. It is signed by the attorney, who states no basis for personal knowledge of the Judgment Creditor’s information and belief. Finally, the application lacks any evidence of the information on which Judgment Creditor bases his belief of the truth of the matters stated.

 

Among other things, no facts or evidence are submitted to show the number or amount of liens or encumbrances against the property. No evidence is offered to establish the fair market value of the property. Without admissible evidence of fair market value, liens and encumbrances, or homestead exemptions, the Court is unable to determine whether sufficient equity in the property exists to satisfy any part of the judgment. (See Code of Civ. Proc. § 704.780, subd. (b).)   

 

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

CIV534868     YAZAN ALKHUDARI VS AMANDA JANE REED, ET AL.

 

 

YAZAN ALKHUDARI                        GREGORY C. CATTERMOLE

AMANDA JANE REED                       CRAIG A. LIVINGSTON

 

 

motion to compel deposition subpoena

TENTATIVE RULING:

 

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

 

 

 



9:00

Line: 7

CIV535761      ALAN D. BILLER & ASSOCIATES, INC. VS. FIDUCIARY

                   RESEARCH AND CONSULTING LLC, ET AL.

 

 

ALAN D. BILLER & ASSOCIATES, INC.       RANDALL M. WIDMANN

FIDUCIARY RESEARCH AND CONSULTING LLC   MARIE ELIZABETH JONAS

 

 

motion for summary judgment against cross-complaint fiduciary research and consulting llc’s cross-complaint for breach of contract

TENTATIVE RULING:

 

This matter is continued to MaY 11, 2017 AT 9:00 A.M. IN THE LAW AND MOTION DEPARTMENT



 

 

 

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

 

Friday, April 21, 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

CIV524391     ELIZABETH WHITE, ET AL. VS. JEFFERSON UNION COUNTY

                 SCHOOL DISTRICT

 

 

ROBERT DOUGLAS                         MICHAEL FLYNN

JEFFERSON UNION COUNTY SCHOOL DISTRICT  JOHN A. SHUPE

 

 

Motion to Continue Trial Date

TENTATIVE RULING:

 

The parties are ordered to appear.

 

 



 

 

 

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 JONATHAN E. KARESH

Department 20

 

400 County Center, Redwood City

Courtroom 8C

 

Friday, April 21, 2017

 

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

 you must call (650) 261-5120 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

2:00

Line: 1

16-CIV-00756     VERA P. VARGAS, et al. vs. TRAVELERS PROPERTY

                     CASUALTY COMPANY OF AMERICA

 

 

VERA P. VARGAS                                   BRIAN M. HEIT

TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA    ETHAN A. MILLER

 

 

motion for Reconsideration

TENTATIVE RULING:

 

The motion is GRANTED pursuant to CCP section 473(d).  Petitioner voluntarily dismissed this action prior to the Court’s ruling on the petition.  As a result, the order is void.  While respondents argue the dismissal was ineffective, the Court’s docket indicates that the dismissal was entered prior to the issuance of the Court’s tentative ruling.  To the extent respondents argue the dismissal is a ploy to avoid an inevitable order of denial because petitioner had two similar petitions denied on similar grounds, they offer no authority to support this assertion.

 

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 Jonathan E. Karesh, Department 20.

 

 


 

 

 

 

 

 


POSTED:  3:00 PM

 

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