March 22, 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

 

Thursday, March 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

Line: 1

16-CIV-02039     DEAN CLARK vs. DAVE HAASE, et al.

 

 

DEAN CLARK                             JOHN E. STRINGER

DAVE HAASE                             PATRICK M. TERRY



demurrer TO PLAINTIFF'S FIRST AMENDED COMPLAINT

TENTATIVE RULING:

 

Defendants PENINSULA ACCOUNTING SERVICES, INC. and DAVE HAASE’s Demurrer to First Amended Complaint is OVERRULED.  Defendants are ordered to file their Answer no later than March 30, 2017.

 

The elements of a negligence cause of action are (1) a legal duty to use due care, (2) breach of that duty, (3) breach as a proximate cause of resulting injury, and (4) damages.  Jones v. Grewe (1987) 189 Cal.App.3d 950, 954.  All of these elements are adequately pled in the First Amended Complaint.

 

As a procedural matter, Defendants’ Code Civ. Proc. § 430.41 meet-and-confer declaration is inadequate.  Section 430.41(a) requires Defendants’ counsel, Mr. Terry, to “meet and confer in person or by telephone” with Plaintiff’s counsel “for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.”  Mr. Terry’s assertion that he attempted to meet and confer prior to filing a demurrer to the original Complaint is of no avail here.  “If an amended complaint, cross-complaint, or answer is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading.”  Id.   For purposes of judicial economy, the court has overlooked this deficit at this time.

 

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: 2

17-CIV-00197     HELEN GORDON vs. BRIAN A. CASON, et al.

 

 

HELEN GORDON                           JEFFREY P. BLUM

BRIAN A. CASON                         Gretchen m. wallacker

 

 

Motion to strike

TENTATIVE RULING:

 

This matter is dropped from calendar at the request of both parties.

 



9:00

Line: 3

CIV535026     CEVA LOGISTICS US, INC. Vs CALIFORNIA INSURANCE

                 GUARANTEE ASSOCIATION

 

 

CEVA LOGISTICS U.S., INC.              ASHLEY VINSON CRAWFORD

CALIFORNIA INSURANCE GUARANTEE ASSOCIATION FREDERICK G. HALL

 

 

Application to appear as counsel pro hac vice

TENTATIVE RULING:

 

The application of Clayton N. Matheson to appear pro hac vice on behalf of Plaintiff 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, 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: 4

CIV536808     CITY OF FOSTER CITY VS. PETER DENNIS BRATIS, ET AL.

 

 

CITY OF FOSTER CITY                    JEAN B. SAVAREE

PETER DENNIS BRATIS

 

 

Motion for entry of judgment

TENTATIVE RULING:

 

Plaintiff’s Motion to Enter Judgment and Request for Attorney’s Fees is GRANTED under Code of Civil Procedure sec. 664.6. Defendant is ORDERED to comply with the terms of the Settlement Agreement signed July 18, 2016, specifically: (1) obtain an encroachment permit from Foster City to repair the broken section of bulkhead in the rear yard (as pictured in Exhibit 1 attached to the Settlement Agreement) and, thereafter, repair the bulkhead to the satisfaction of Foster City, and (2) remove any and all items blocking access to the main electrical panel and gas meter on the side yard of the property (293 Surfbird Isle, Foster City, CA) and maintain the area in that condition.

 

The court received an unverified handwritten letter from Defendant with no apparent proof of service on plaintiff.  The court did consider the letter in regard to defendant’s efforts to complete the required work and a medical condition that may have caused an inability to comply with the settlement in a timely fashion

 

Plaintiff is awarded $500 in attorney’s fees incurred to enforce the terms of the Settlement Agreement between the parties.

 

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 and judgment reflecting this Court’s ruling for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order and judgment are to be submitted directly to Judge Richard H. DuBois, Department 16.

 



9:00

Lines: 5 - 7

CIV537370     LOUIS A. LIBERTY VS. LIBERTY, OTTO & GUILLEN

 

 

 

LOUIS A. LIBERTY                       DAVID H. SCHWARTZ

LAW OFFICE OF OTTO & GUILLEN            IAN OTTO

 

 

5. demurrer to SECOND AMENDED COMPLAINT

TENTATIVE RULING:

 

This matter is continued to April 6, 2017 at 9:00 a.m. in the Law and Motion Department per stipulated order.

 

 

6. motion to strike portions of plaintiff’s second amended complaint

TENTATIVE RULING:

 

This matter is continued to April 6, 2017 at 9:00 a.m. in the Law and Motion Department per stipulated order.

 

 

7. joinder to demurrer and motion to strike

TENTATIVE RULING:

 

This matter is continued to April 6, 2017 at 9:00 a.m. in the Law and Motion Department per stipulated order.

 



9:00

Line: 8

CIV537692     YVONNE COVARRUBIAS VS. MACY'S CORPORATE SERVICES, Inc.

 

 

YVONNE COVARRUBIAS                     JEREMY A. GRAHAM

MACY'S CORPORATE SERVICES, INC.         STEVEN B. KATZ

 

 

motion to compel COMPLIANCE WITH COURT ORDER AND REQUEST FOR MONETARY SANCTIONS

TENTATIVE RULING:

 

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

 



9:00

Line: 9

CIV537830     PATRICIA COLOMBO VS. USS CAL BUILDERS INTERNATION

 

 

 

PATRICIA COLOMBO                       MARK D. ROSENBERG

USS CAL BUILDERS INTERNATIONAL, INC     JONATHAN C. BACON

NORTHWEST CASCADE INC.                 THOMAS YEN

 

Motion for summary judgment

TENTATIVE RULING:

 

The Motion of Defendant Northwest Cascade, Inc. dba Honey Buckets (“Defendant”) for Summary Judgment is DENIED for failure to serve Plaintiff Patricia Colombo (“Plaintiff”) with this motion and all supporting papers at least 75 days before the hearing.  (See C.C.P. sec. 437c(a)(2).)  Defendant concedes that Plaintiff was not provided with the requisite notice, but contends that Plaintiff Patricia Colombo (“Plaintiff”) was not prejudiced from the shorter notice.  However, the court has no power to shorten the notice period for hearing a summary judgment motion.  (See Urshan v. Musicians' Credit Union (2004) 120 Cal.App.4th 758, 767 [the express mandatory language of Code of Civil Procedure section 437c(a) makes clear the Legislature intended to deprive trial courts of the power to shorten the notice period for hearing summary judgment motions

 

As set forth in Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1267–1268, the court has no authority to continue the hearing for eleven days in an attempt to comply with 75 days’ notice, but rather 75-days’ notice period has to begin anew. 

 

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: 10 & 11

CIV538888     SYLVIA HALL VS. ALI MOHAMED, ET AL.

 

 

 

ALI M. MOHAMED                         DEBORAH T. BJONERUD

SYLVIA HALL                            WAUKEEN Q. MCCOY

 

 

 

10. demurrer  to First Amended Complaint

TENTATIVE RULING:

 

Although the parties never spoke on the telephone about the issues raised in this Demurrer, which is the intent of Code Civ. Proc. Sect. 430.41, the Court finds the meet and confer requirement was met.  Defense counsel attempted to speak with Plaintiff’s counsel about the Demurrer, but Plaintiff’s counsel chose instead to oppose the Demurrer on paper without talking.  That approach defeats the purpose of the meet and confer statute.  Plaintiff’s counsel is reminded to comply with all meet and confer requirements going forward.  The filed Opposition was also untimely.  Plaintiff’s counsel is admonished to comply with Code Civ. Proc. Sect. 1005(b) on all future motions.   

 

Defendants’ Demurrer to the third cause of action for intentional infliction of emotional distress (IIED) is OVERRULED.  The FAC does include conclusory allegations of wanton and reckless conduct, but also contains factual allegations of intentional conduct directed at Plaintiff.  It alleges Defendants “attempt[ed] to switch lanes, cutting off plaintiff, yelling obscenities, honking, and attempting to pass Plaintiff illegally and in such a manner as to run her off the road . . .”.  Thus, as alleged, this case is not, as Defendants characterize it, a “garden variety” negligence case.  The FAC alleges intentional conduct that a reasonable jury could characterize as “extreme and outrageous.”  It is for the fact finder to decide whether this alleged conduct is “so extreme as to exceed all bounds of that usually tolerated in a civilized community.”   The FAC also alleges Plaintiff suffered “mental anguish, humiliation, feelings of helplessness, desperation, and shock, all of which has caused, continues to cause, and will cause severe physical and mental pain and suffering.”  FAC, Parag. 25.  These allegations of severe emotional distress are sufficient at the pleading stage. 

 

The Demurrer to the fourth cause of action for negligent infliction of emotional distress (NIED) is also OVERRULED.  Defendants are correct that there is no independent tort of NIED.  The tort is simply one of negligence wherein emotional distress is caused by a breach of duty.           But forcing Plaintiff to amend in order to move the emotional distress allegations to the “negligence” cause of action serves no real purpose.  There is no prejudice to Defendants by leaving the allegations as is, because Plaintiff cannot obtain double recovery for alleged emotional distress damages.  

 

Defendants shall file a response to the FAC within 14 days of Notice of Entry of this Order. 

 

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.

 

 

 

11. motion to strike plaintiff’s First Amended Complaint

TENTATIVE RULING:

 

For largely the same reasons discussed above, Defendants’ Motion to Strike the request for punitive damages is DENIED.  It is for the fact finder to decide whether Defendants’ alleged act of running Plaintiff off the road, while honking and yelling obscenities, is despicable conduct that demonstrates a conscious disregard for the rights and safety of others.  Civ. Code Sect. 3294. 

 

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: 12

CLJ538235     AMERICAN EXPRESS CENTURION BANK VS. ANTHONY v. SMITH

 

 

AMERICAN EXPRESS CENTURION BANK         BRIAN P. MCGURK

ANTHONY V. SMITH                       JOSEPH CAMENZIND, IV

 

 

 

Motion to set aside default/judgment

TENTATIVE RULING:

 

The unopposed motion to set aside the default is GRANTED pursuant to CCP Section 473(d).  Defendant has established that the default and default judgment are void for lack of proper service.  CCP Section 415.20(b) permits substitute service only if a party cannot be personally served with reasonable diligence.  In this case, the process server’s declaration of due diligence indicates three attempts were made to personally serve defendant at a commercial mail box store.  No attempts were made to personally serve defendant at the address which appears on statements sent to him by plaintiff.  These facts do not support a finding of reasonable diligence. 

 

Defendant shall file a responsive pleading within 14 days of this order.

 

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.

 



9:01

Line: 13

17-UDL-00096     Parkview Property Management vs. Vanessa Bain

 

 

Parkview Property Management            Paul K. Lee

Vanessa Bain                           DWANA BAIN

 

 

Motion to quash

TENTATIVE RULING:

 

The motion to quash is DENIED. Service of the actual summons and complaint complied with statute and the court’s order permitting service by posting and mailing. Plaintiff admits actual receipt of the summons and complaint through Plaintiff’s service.

 

Defendant cites no authority holding that the failure to check boxes in Paragraph 3 or 4 renders the summons defective such that service should be quashed. Defects in the summons does not render service defective if compliance with statute was “substantial.” (Mannesmann DeMag, Ltd. v. Superior Court (1985) 172 Cal. App. 3d 1118, 1124.) The omission from Paragraph 3 is insubstantial, since Paragraph 19 of the complaint contains the information that Paragraph 3 requested.  The omission from Paragraph 4 of the summons is insubstantial because Defendant’s name is the only name on the summons and the only defendant named in the Complaint. Therefore, Defendant knew that she was being served as an individual.

 

Defendant Vanessa Bain shall file and serve an Answer no later than March 30, 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.

 


 

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

 

Thursday, March 23, 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-03051     STANLEY LAM, et al. vs. COOKING PAPA, INC., et al.

 

 

COOKING PAPA, INC.                     KYLE L. SCHRINER

STANLEY LAM                            JAEMIN CHANG

 

 

Complex Case Status Conference

TENTATIVE RULING:

 

Defendants Cooking Papa, Inc. and My Cooking Papa, Inc.’s (collectively “Defendants”) application to designate the action complex is GRANTED. Plaintiff Stanley Lam asserts several shareholder derivative claims that are provisionally COMPLEX. (Cal. Rules of Court, rule 3.400 (c)(3); Local Rule 2.30C(3).) Furthermore, in applying the facts to the factors enumerated in Local Rule 2.30(D), the Court finds this action COMPLEX as defined in California Rules of Court, rule 3.400. Plaintiff’s Motion for Order Enforcing Statutory Inspection Rights and Defendant’s Motion to Require plaintiff Stanley Lam to Furnish Bond that are currently set for hearing on March 28, 2017 at 9:00 a.m. in the Law and Motion department are VACATED and to be reset in the Complex Civil Litigation Department. The parties are directed to contact Judge Weiner’s Department at 650-261-5102 to set a date for these hearings.


 

 


POSTED:  3:00 PM

 

© 2017 Superior Court of San Mateo County