June 24, 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, June 23, 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-00915     KATHERINE L. GALLO-PODESTA, et al. vs. MIKE ASSAF

 

 

KATHERINE L. GALLO-PODESTA             Pro/PER

MICHAEL "MIKE" ASSAF                   MICHAEL A. FARBSTEIN

 

 

1. MOTION TO STRIKE 4TH AMENDED BILL OF PARTICULARS

TENTATIVE RULING:

 

The Motion of Plaintiffs Katherine Gallo-Podesta and John Podesta (“Plaintiffs”) to Strike the Fourth Amended Bill of Particulars (“Fourth Bill”) of Defendant Michael Assaf dba ITLayer (“Defendant”), is DENIED.  Plaintiffs fail to establish a basis for striking Defendant’s Fourth Bill. 

A bill of particulars merely amplifies the allegations of the complaint by providing more specific allegation of the facts recited in the complaint, and does not take the place of necessary evidence in proof of the alleged cause of action.  (Gough v. Security Trust & Sav. Bank of San Diego (1958) 162 Cal.App.2d 90, 94.) 

 

The facts here are distinguishable from the facts in Burton v. Santa Barbara Natl. Bank (1966) 247 Cal.App.2d 427, upon which Plaintiffs rely.  The plaintiff in Burton failed to furnish a bill of particulars as ordered by the trial court, failed to make a showing of a reasonable effort to locate the records from which a bill of particulars could be made, and failed to exercise reasonable effort to take oral depositions of persons who he had reason to believe would have knowledge of the whereabouts of the records.  (Id. at 431.) 

 

In contrast, Plaintiffs have not shown that the Defendant in this case failed to comply with the court’s prior December 21, 2016 order, or failed to make such reasonable efforts to comply.  Plaintiffs provide no authority to support of the level of details they claim are required to comply with the court’s prior order.  The order required only that the bill of particulars “be accompanied by copies of all business records, ledgers, contemporaneous documents, etc. showing the services allegedly rendered that form the basis of the cross-complaint, to the extent such records exist. As to the individual entries, it should provide as much clarity as reasonably possible (note, for example, the vague entries, such as: communication re multiple issues, remote support, remote assist, miscellaneous issues, etc.).”  (See court’s December 21, 2016 Minute Order.)  The level of detail in the Bill of Particulars provided by defendants is adequate and complies with CCP 454.

 

To the extent Plaintiffs take issue with Defendant’s method of preparation of the Fourth Bill, the court finds that this argument also does not warrant striking the Fourth Bill. It is sufficient that Defendants produce records upon which they relied in the preparation of the Bill of Particulars.

Plaintiffs’ objections to Defendant’s entire declaration and paragraphs 2, 3 and 4 of Defendant’s declaration are OVERRULED.

 

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 COMPEL FURTHER RESPONSES

TENTTAIVE RULING:

 

The Motion of Plaintiff and Cross-Defendant Katherine Gallo (“Plaintiff”) to Compel Further Responses from Defendant Mike Assaf dba IT Layer (“Defendant”) and Produce Documents, and Motion for Sanctions for Violations of Court Order, are ruled on as follows:

 

The motion to compel further responses is MOOT in light of Defendant’s service of amended responses to the Requests for Production.  Plaintiff’s motion sought further responses as to Defendant’s Third Amended Responses.  Plaintiff was served with Defendant’s Fifth Amended Responses on May 24, 2017.  (See Plaintiff’s Second Supplemental Reply, 3:8-9.)  To the extent that Plaintiff contends that Defendant’s Fifth Amended Responses are still insufficient, Plaintiff must file a new motion to compel further response after meeting and conferring in good faith with Defendant about these amended responses.

 

As to the motion for Production of Documents, there appear to be two issues raised in connection with the document production.  First, Plaintiff claims that Defendant still has not identified which documents are responsive to each Request for Production as provided in the court’s February 10, 2017 Order. However, after Plaintiff filed this motion, the court issued a Revised Order on May 12, 2017 (“Revised Order”).  The Revised Order revoked the court’s February 10, 2017 Order and was amended to order that Defendant produce documents “as they are kept in the usual course of business, and be organized and shall include identifying information as to which documents go with each of the requests. Defendant shall produce the documents no later than May 24, 2017.”  (See Revised Order.)  Thus, this motion is MOOT as the court has now issued an order for Defendant to identify which documents are responsive to each Request for Production. 

 

Second, to the extent Plaintiff is claiming that Defendant has not produced any new documents as agreed to in Defendant’s Fifth Amended Responses, this issue is not properly before the court.

 

Plaintiff’s motion for a privilege log is DENIED as it appears that no privilege is being asserted.

 

Plaintiff’s motion for sanctions under C.C.P. sections 2023.010 and 177.5 are DENIED.  Plaintiff sought sanctions based on Defendant’s failure to comply with the court’s February 10, 2017 order.  In light of the Revised Order, Plaintiff must file a new motion for sanctions to the extent Plaintiff contends Defendant has failed to comply with that Revised Order.

 

Defendant’s request for monetary sanctions is DENIED.

 

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: 3

16-CIV-01923     MARY E. MOHOROVICH vs. KEVIN J. KUHLOW, et al.

 

 

MARY E. MOHOROVICH                     DAVID H.S. COMMINS

KEVIN J. KUHLOW                        NATHAN E. SMITH

 

 

MOTION TO COMPEL APPEARANCE, ETC.

TENTATIVE RULING:

 

Plaintiff’s Motion to Compel Insurance Coverage Deposition is GRANTED. Plaintiff is entitled to take a deposition of the person(s) most qualified as stated in the second deposition notice, as limited by CCP sec. 2017.210: “A party may obtain discovery of the existence and contents of any agreement under which any insurance carrier may be liable to satisfy in whole or in part a judgment that may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. This discovery may include the identity of the carrier and the nature and limits of the coverage. A party may also obtain discovery as to whether that insurance carrier is disputing the agreement's coverage of the claim involved in the action, but not as to the nature and substance of that dispute.  Information concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial.”

 

Although the existence of ins. policies is not evidence of the “foreseeability” of Kuhlow’s bad acts, and that companies often obtain insurance “just in case” without being liable for anything, and that such policies may not ultimately be admissible, it is still discoverable.

 

Whether LPL can escape liability for Kuhlow’s actions because he was not an “employee,” but was something else is not a question to be decided at this point. (Def admits that Kuhlow was an “agent,”) Kuhlow’s status as employee or “independent contractor” is an issue for later. However, that issue does not prevent Plaintiff from obtaining the PMQ depo that she seeks.

 

There is a potential for objectionable questioning of this person, if the recommendation to buy the insurance was from LPL’s attorney, it could infringe on attorney-client privilege or attorney work product. Nevertheless, these are objections to be made at depo, as needed.

 

Plaintiff has demanded information that is overbroad and outside the scope of CCP § 2017.210, which permits discovery of insurance that might cover the claims in this action. Plaintiff is not entitled to have “all” of LPL’s policies for the last 9 or 11 years, from anywhere in the world and for any claims. Plaintiff is also not entitled to have “all” communications with the insurance company, other than what is permitted, which is the correspondence on a reservation of rights and/or dispute over coverage. Plaintiff is not entitled to have the costs it was charged for insurance coverage either, as there can be no relevance to Plaintiff’s claims in what LPL paid for its coverage.

 

The motion is DENIED as to the requests for documents, because Defendant LPL has already agreed to produce the relevant insurance policies and correspondence regarding reservations of rights and/or disputes regarding coverage.

 

All requests for sanctions are denied.

 

 



 

9:00

Line: 4

17-CIV-00786     PARSONS TRANSPORTATION GROUP vs. Peninsula Corridor

                    Joint Powers Board, et al.

 

 

PARSONS TRANSPORTATION GROUP            BENNETT J. LEE

PENINSULA CORRIDOR JOINT POWERS BOARD   LAUREL O’CONNOR

 

 

HEARING ON DEMURRER TO CROSS COMPLAINT

TENTATIVE RULING:

 

This matter is continued to July 21, 2017 at 9:00 a.m. in the Law and Motion Department.

 

 



 

9:00

Line: 5

17-CIV-00868     VAIULA SAVEA vs. YRC INC., et al.

 

 

VAIULA SAVEA                           JOCELYN BURTON

YRC INC.                               JOEL M. PURLES

 

 

HEARING ON DEMURRER TO PLAINTIFF’S COMPLAINT

TENTATIVE RULING:

 

The Court admonishes Defendant YRC Inc. dba YRC Freight and its counsel for violating CRC Rule 3.1110(f), which requires hard tabs between exhibits, regarding the Request for Judicial Notice supporting Defendant’s Demurrer.  The lack of tabs makes it difficult for the Court to review the documents.  Defendant’s counsel is directed to comply with all California Rules of Court and Local Rules. 

 

Defendant YRC Inc.’s Demurrer to Plaintiff Vaiula Savea’s Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.  Based on the allegations and the documents subject to judicial notice, the name and address used in Defendant’s wage statements comply with Labor Code Sect. 226(a)(8).

 

While not binding on the Court, the 2009 district court decision in York v. Starbucks Corp., 2009 WL 8617536 (C.D. Cal. 2009) is analogous and persuasive.  The Court there held that an employer’s use of its fictitious business name on wage statements rather than its corporate name “satisfie[d] section 226(a)(8) as a matter of law.”  See also Elliot v. Spherion Pacific Work, LLC (2008) 572 F.Supp.2d 1169, 1179-80.  Plaintiff cites several cases (Cicairos v. Summit Logistics, Clark v. First Transit, Inc., Finder v. Leprino Foods) in which an employer truncated its corporate name on wage statements, which created confusion because multiple entities existed with variations of the shortened name.  As alleged, that is not what Defendant did here.  Defendant did not use a truncated name; it used its complete fictitious business name.  Unlike York, none of the cases Plaintiff cites involved use of a fictitious business name.  Plaintiff cites no authority suggesting a company’s use of a registered fictitious business name on a wage statement violates Sect. 226(a)(8). 

 

Nor does Plaintiff need to look beyond the wage statement to determine the identity of his employer, as he argues, because his employer is YRC Freight.  YRC, Inc. and YRC Freight are legally one and the same entity.  Pinkerton’s, Inc. v. Sup. Ct. (1996) 49 Cal.App.4th 1342, 1347-8.  Only YRC, Inc. registered YRC Freight as its fictitious business name.  Thus the wage statements correctly identified Plaintiff’s employer, as the statute requires.   

Plaintiff argues the YRC Freight name registration expired in San Bernardino County in Jan. 2017, and thus the name “YRC Freight” was not registered when Plaintiff filed the Complaint on Feb. 28, 2017.  The name, however, was registered in Sacramento County.  Defendant’s Suppl. RJN, Ex. 7-8.  Plaintiff identifies no authority suggesting the name must be registered in multiple counties.  

As alleged in the Complaint, the stated address of YRC Freight also complies with Sect. 226(a)(8).  The statute merely requires that the wage statements identify “the name and address.”  Per the Complaint’s allegations, the wage statement correctly identified the address.  Plaintiff does not allege or dispute that the stated address created confusion, or that Defendant ever experienced any problem receiving mail at the stated address.  The suggestion that Defendant was required to include the last four digits of the zip code is not supported by any authority.

Nor does the Court agree that amendments to the PAGA statute and Sect. 226(a) “overruled” the cases cited in Defendant’s moving papers, or require “strict compliance” with Sect. 226(a).  For the above reasons, Defendant did strictly comply with the statute by identifying Defendant’s name and address on its wage statement.  Further, in general, “[u]nless the intent of the statute can only be served by demanding strict compliance with its terms, substantial compliance is the governing test.”  Downtown Palo Alto Comm. for Fair Assessment v. City Council of Palo Alto (1986) 180 Cal.App. 3d 384, 394.  If Defendant here did not strictly comply with Sect. 226(a)(8), it substantially complied by identifying its correct name, and a correct address where it could be reached.  

 

Defendant’s unopposed Request for Judicial Notice is GRANTED as to Ex. 1 (YRC’s recorded fictitious business name statement), Ex. 2 (Assembly Bill 1750), Ex. 3 (Bill Memorandum). Ex. 5 (Assembly Policy Committee Analysis of Bill 3363), and Ex. 6 (Fiscal Committee Analysis of Bill 3363) (Evid. Code Sect. 452(c)), and Ex. 4 (Sample pay stub).  Evid. Code Sect. 452(c).

 

Plaintiff’s unopposed Request for Judicial Notice is GRANTED as to Ex. A and B (recorded Statements of Information) (Evid. Code Sect. 452(c), (h)), Ex. C (website printout) (Evid. Code Sect. 452(h)), Ex. D (Labor Code Sect. 226) (Evid. Code Sect. 452(a)), and Ex. E and F (legislative history).  Evid. Code Sect. 452(c). 

 

Defendant’s Suppl. Request for Judicial Notice is GRANTED as to Ex. 7-8 (registered fictitious business name statements).  Evid. Code Sect. 452(c).  

 

Demurring party is directed to 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 notice thereof to the opposing party/counsel as required by law and the California Rules of Court.  The order is to be submitted directly to Judge Richard H. DuBois, Department 16. 

 



 

9:00

Line: 6

17-CIV-01762     HSBC BANK USA vs. ADAM TAVIN, et al.

 

 

HSBC BANK USA                          AMY E. BRITT

ADAM TEVIN                             PRO/PER

 

 

WRIT OF ATTACHMENT

TENTATIVE RULING:

 

Plaintiff’s unopposed application for a writ of attachment is GRANTED in the amount of $207,745.59 (Promissory Note) plus $52,026.94 (Credit Card) conditioned upon plaintiff providing the undertaking required by CCP §489.210.

 

Plaintiff has established that its claims for breach of the commercial guaranties are ones upon which an attachment may be issued and that it is not seeking the attachment for any purpose other than recovery on these claims. 

 

It has also offered evidence to establish the probable validity of its claim as to the guarantee of the $270,000 note and of the guaranty of the credit card account. 

 

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 on the appropriate judicial council form reflecting this Court’s ruling 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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CIV531938     IMPACT PAPER & INK, LTD VS. ALAN SAJADI, ET AL.

 

 

PACIFIC BUSINESS SUPPLIES              DAVID R. GRIFFITH

IMPACT PAPER & INK, LTD                MARC L. JACUZZI

 

 

MOTION TO REOPEN DISCOVERY

TENTATIVE RULING:

 

Plaintiff’s motion to permit discovery is GRANTED IN PART.  Plaintiff may conduct discovery relevant to the issue of defendant Sajadi’s alleged breach of the settlement agreement. 

 

On May 12, 2017 an order retaining jurisdiction over the subject settlement was entered and plaintiff now seeks to have the court enforce the settlement through entry of the parties stipulated judgment.  The requested discovery is necessary to establish a breach, which is a condition precedent to entry of the stipulated judgment. 

While defendant argues that the settlement agreement does not provide for discovery, he cites no authority indicating that this prevents the court from granting the requested relief.  Contrary to defendant’s contention, an order permitting discovery would not impose an additional settlement term, it would simply aid the court in exercising its jurisdiction to enforce the settlement agreement. 

As discussed above, the discovery is necessary to establish whether Sajadi has solicited plaintiff’s customers.  Plaintiff has been diligent as this motion was filed within a reasonable time after the court indicated that an evidentiary hearing would be required.  Lastly, there is no indication that defendant will be prejudiced by the proposed discovery. 

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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CIV538261     LILLIAN CHAN VS CITY OF SOUTH SAN FRANCISCO, ET AL.

 

 

LILLIAN CHAN                           DANIEL K. BALABAN

CITY OF SOUTH SAN FRANCISCO             RODRIGO E. SALAS

 

 

MOTION TO CONTEST GOOD FAITH SETTLEMENT

TENTATIVE RULING:

 

This motion is continued to August 1, 2017 at 9:00 a.m. in the Law and Motion Department at the request of both parties.

 


 

 

 

 

 


POSTED:  3:00 PM

 

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