August 20, 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, August 18, 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

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Line: 1

16-CIV-02520     HYEONG GEON LEE vs. DAVID S. HENSHAW, et al.

 

 

HYEONG GEON LEE                        PETER N. HADIARIS       

DAVID S. HENSHAW                       DAVID S. HENSHAW

 

 

MOTION TO COMPEL FURTHER RESPONSES TO DEFENDANT DAVID HENSHAW’S REQUESTS FOR PRODUCTION OF DOCUMENTS

TENTATIVE RULING:

 

Defendant DAVID S. HENSHAW’s Motion to Compel Further Responses is DENIED WITHOUT PREJUDICE for failure to comply with the requirements for proof of service by mail, as set forth in Code Civ. Proc. § 1013a(1) and (2).  

 

 

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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16-CLJ-02330     CAPITAL ONE BANK (USA), N.A. vs. RANDY M. CAYABYAN

 

 

CAPITAL ONE BANK (USA), N.A.            ANTHONY DIPIERO

RANDY M. CAYABYAN                      JENNIFER TUNDER

 

 

CAPITAL ONE BANK N.A.’S MOTION FOR ORDER THAT MATTERS IN REQUEST FOR

ADMISSION OF TRUTH OF FACTS BE ADMITTED

TENTATIVE RULING:

 

Plaintiff’s unopposed motion for order deeming matters admitted is granted.

 

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.  The Court will sign and enter the proposed order that was submitted with the motion.

 



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17-CIV-01732   CECELIA DOLORES PALOMAR vs. VICTORIA A. KAUFMAN, et al.

 

 

CECELIA DOLORES PALOMAR                STEPHEN M. VERNON

STEVEN J. HERBERT                      MARC D. BENDER

 

 

HEARING ON DEMURRER

TENTATIVE RULING:

 

 

The Demurrer of Defendant Steven J. Herbert (“Defendant”) to the Complaint of Plaintiff Cecilia Dolores Palomar (“Plaintiff”), is SUSTAINED WITH LEAVE TO AMEND as to all of the causes of action.

 

The caption of the Complaint identifies eight causes of action, but the Complaint contains only six causes of action.  Plaintiff has not alleged facts sufficient to support claims for conversion and constructive fraud but may file an amendment that does so.

 

As to the first through six causes of action, Plaintiff also fails to allege facts sufficient to support these claims against Defendant.  Plaintiff alleges in her Complaint that Kaufman failed to disclose the negotiations to sell the home and reportedly failed to inform the buyer (Defendant) of Plaintiff’s right to occupy the home.  (See Comp. para. 20.)  However, in the Amendment to the Complaint, Plaintiff alleges that Defendant has refused to disclose documents pertaining to his knowledge of the agreements concerning the property and on that basis, Plaintiff is informed and believe that Defendant had knowledge of Plaintiff’s right to continue to occupy the property.  (See Amendment to Complaint.)  The Amendment fails to provide a satisfactory explanation of why the allegation in the Complaint regarding Defendant’s lack of knowledge is incorrect.  (See Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 384.) 

 

Further, Plaintiff’s allegation that each defendant is the joint venturer, principal, agent or employee of the other defendant, is insufficient to support these claims against Defendant.  (See Comp. para. 25.)  The California Supreme Court has criticized such allegations as “egregious examples of generic boilerplate.”  (See Moore v. Regents of Univ. of Calif. (1990) 51 Cal.3d 120, 134, fn.12.)   

 

Lastly, Plaintiff’s conspiracy allegation also does not provide an adequate basis for alleging any of the tort claims against Defendant.  (See Comp. para. 25.)  Conspiracy itself is not a separate cause of action or independent tort, but rather the complaint must allege acts that would give rise to a tort cause of action without the conspiracy.  (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1172.)  To allege conspiracy, a plaintiff must plead: (1) formation and operation of the conspiracy, (2) damage resulting to plaintiff, and (3) a wrongful act done in furtherance of the common design.  (Id. at 1173.)  Here, Plaintiff has not alleged facts sufficient to support Defendant’s liability for any of the tort claims alleged in the Complaint. 

Defendant’s Request for Judicial Notice is GRANTED.

 

Plaintiff shall file and serve a First Amended Complaint on or before September 1, 2017.

 

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. 

 

 



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17-CLJ-01506     BANK OF AMERICA, N.A vs. LISA R. CRUZ

 

 

BANK OF AMERICA, N.A.                  DEVIN JACOBSEN

LISA R. CRUZ                           Pro/PER

 

 

PLAINTIFF’S MOTION FOR JUDGMENT ON PLEADINGS

TENTATIVE RULING:

 

Plaintiff’s Motion for Judgment on the Pleadings is DENIED.

 

The Complaint sufficiently sets forth the elements for account stated and open book account. Defendant’s Answer admits all of the allegations, except for the amount due. The Answer states several times that Defendant does not agree with the amount alleged in the complaint. (See Answer Paras. 3(b)(1) & 5, and Attachment One to Answer.) The Answer, therefore, alleges that the Complaint’s allegation of $2,542 due is untrue.

 

Plaintiff’s motion states that Defendant admits all the allegations in the complaint. This is incorrect. Defendant’s statement that she does not agree that the amount stated in the complaint is correct is a denial of the allegation of the amount due. Defendant denies an element of both causes of action.

 

For a Plaintiff’s motion for judgment on the pleadings, “the moving party admits the untruth of his own allegations insofar as they have been controverted, and all such averments must be disregarded whether there is a direct and specific denial or an indirect denial by virtue of affirmative allegations of a contrary state of facts. Every allegation affirmatively pleaded in the answer must be deemed true.” (Barasch v. Epstein (1957) 147 Cal.App.2d 439, 443; see also Osborne v. Abels (1939) 30 Cal. App. 2d 729, 731 (“party moving for judgment on the pleadings also admits the untruth of his own allegations in so far as they have been controverted”).)

 

By stating that she does not agree with the amount stated, Defendant denies that she owes $2,542 alleged in the complaint. As a matter of law, Plaintiff’s motion admits Defendant’s allegation that $2,542 is not the correct amount.

 

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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CIV480379     BENEDETTI FAMILY TRUST VS. JOHN ABBOTT

 

 

BENEDETTI FAMILY TRUST                 DESMOND B. TUCK

JOHN ABBOTT                            Pro/PER

 

 

BENEDETTI FAMILY TRUST’S MOTION FOR AWARD OF ATTORNEY’S FEES PURSUANT TO JUDGMENT [CC §1717; CCP §§ 1033.5(a)(10)(A) and 1033.5(c); CRC 3.1700]

TENTATIVE RULING:

 

Plaintiff’s unopposed motion for attorney’s fees is GRANTED in the amount of $4,280.00. 

 

The costs of $180.00 are not awarded pursuant to this order. Rather, Plaintiff has already claimed those amounts in her Memorandum of Costs, filed July 17, 2017.

 

 

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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CIV536118     PEOPLE OF THE STATE, ET AL. VS THE ALLERGY, ET AL.

 

 

DAVE JONES, CALIFORNIA INSURANCE COMMISSIONER     KATHERINE Y. WANG

THE ALLERGY AND ASTHMA CLINIC                    NIALL P. MCCARTHY

 

 

RELATOR AETNA HEALTH OF CALIFORNIA’S NOTICE OF MOTION AND MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY REQUESTS

TENTATIVE RULING:

 

This matter is ordered off calendar.  Pursuant to the court order filed on August 14, 2017, discovery in this action (with the exception of third party discovery) is stayed until January 2, 2017.   Once the stay expires, or if it is lifted at an earlier date, the parties may contact the court to obtain a new hearing date.

 

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.

 


 

 

 

 


POSTED:  3:00 PM

 

© 2017 Superior Court of San Mateo County