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

 

Thursday, August 17, 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-02465     SHAWN LEWIS vs. STEPHEN YEN, et al.

 

 

SHAWN LEWIS                            Pro/per

STEPHEN yen                            mark CARBONE

 

 

DEMURRER TO THE PLAINTIFF’s COMPLAINT

TENTATIVE RULING:

 

Defendants Kimhoa Nguyen’s and Stephen Yen’s unopposed Demurrer to Plaintiff’s Nov. 18, 2016 Complaint is SUSTAINED WITHOUT LEAVE TO AMEND on grounds of res judicata and collateral estoppel.  The face of the Complaint and the documents subject to judicial notice establish Plaintiff previously sued Defendant Kimhoa Nguyen for damages allegedly arising from the same Nov. 20, 2014 automobile collision that forms the basis of the present Complaint.  See Case No. CIV533066, captioned Shawn Lewis v. AAA Insurance (CSAA Insurance) and Kim Nguyen.  On Sept. 30, 2016, Plaintiff filed a Request for Dismissal dismissing the prior case with prejudice, following a settlement and Release.  Plaintiff has now sued Kimhua Nguyen again for the same collision, this time adding her alleged employer, Mr. Yen, as a defendant, alleging “negligent entrustment” of the vehicle. 

The doctrines of res judicata and collateral estoppel prevent piecemeal litigation—i.e., the splitting a single cause of action into multiple lawsuits.  Mycogen Corp. v. Monsanto Co. (2008) 28 Cal.4th 888, 896-7; Ponce v. Tractor Supply Co. (1973) 29 Cal.App.3d 500.  All claims based on the same “cause of action” must be decided in a single suit; if not brought initially, they may not be raised at a later date.  Id.  This benefits both the parties and the courts by protecting against serial litigation, which causes unfair burden and expense.  Id.  The present Complaint against Ms. Nguyen and Mr. Yen is based on the same vehicle collision that has already been litigated and dismissed.  The purported new claim against Defendant Yen is directly related to, and derivative of, the claim against Ms. Nguyen.  Because it could have been asserted in the prior case, it is now barred. 

 

Defendants’ Request for Judicial Notice of the fact Defendants are married is DENIED, although that issue is not germane to the Court’s ruling.  Defendants’ Request for Judicial Notice of the Court file in Lewis v. AAA Insurance, et. al., Case No. CIV533066, is GRANTED.  Evid. Code Sect. 452(d).  The court did not consider the terms of the release signed in CIV533066 as it was not a part of the court file that the court did take judicial notice of.

 

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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Line: 2

16-CLJ-01063     MICHAEL P. MELLEMA, et al. vs. MICHELE D. FRIEDMAN et al.

 

 

MICHAEL P. MELLEMA                     Pro/per

MICHELE AND TODD FRIEDMAN               RYAN J. GREENSPAN

USAA CASUALTY INSURANCE                robert s. mClay

 

 

USAA CASUALTY INSURANCE COMPANY’S DEMURRER To PLAINTIFF’S FIRST AMENDED COMPLAINT

TENTATIVE RULING:

 

USAA’s Demurrer to the First Amended Complaint is SUSTAINED WITH LEAVE TO AMEND.

 

Plaintiff fails to allege any facts demonstrating that Plaintiff has standing to assert any qui tam cause of action against Defendant USAA.

 

Demurrer to Plaintiff’s claims for perjury and hit and run (Penal Code section 118 and Vehicle Code section 20002) is SUSTAINED. Plaintiff concedes that these two claims are not directed against Defendant USAA. The Complaint, however, fails to comply with CRC Rule 2.112, which requires that that each cause of action be separately enumerated and identified. (See CRC Rule 2.112.) Since the complaint does not comply with Rule 2.112, the Court treats the complaint as alleging all causes of action against all Defendants.

 

Demurrer to Plaintiff’s claim for insurance fraud (Penal Code section 550) is SUSTAINED. Section 550 prohibits presentation of false insurance claims. The Complaint does not allege that Defendant USAA presented or participated in the presentation of any false claims, or any other act proscribed by Penal Code section 550.

 

Plaintiff is granted leave of court until August 31, 2017, to file and serve a Second Amended Complaint that addresses only the above defects. This order does not grant leave to amend in the manner sought by Plaintiff’s concurrent Motion to Order Addendum to Qui Tam Complaint.

 

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: 3

17-CIV-02699     ANDRE FAHRI vs. IRAJ ADINEH

 

 

ANDRE FAHRI                            ELAINE R. lee

Iraj adineh                            Charles s. bronitsky

 

 

Defendant’s demurrer to complaint

TENTATIVE RULING:

 

The Demurrer of Defendant Iraj Adineh (“Defendant”) to the Complaint of Plaintiff Andre Fahri (“Plaintiff”) is ruled on as follows:

 

Defendant’s Request for Judicial Notice, unopposed by Plaintiff, is GRANTED.

 

Demurrer to the First, Second, Third Fifth, Sixth and Seventh Causes of Action based on failure to join an indispensable party is SUSTAINED WITH LEAVE TO AMEND.  Plaintiff concedes that his wife, Jolanta Fahri, is an indispensable party that should be joined as a plaintiff in this action.

 

Demurrer to the First Cause of Action for Fraud in Inducement and Seventh Cause of Action for Rescission, is also SUSTAINED WITH LEAVE TO AMEND based on failure to allege facts sufficient to support these claims.  Plaintiff’s allegation that the agreement and quitclaim deed created a “possibility of reverter” with respect to the subject property, is contradicted by face of the agreement and quitclaim deed attached to the Complaint.  Plaintiff must allege facts specific to support an alleged misrepresentation, as well as facts showing how, when, where, to whom, and by what means the representation was tendered.  (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)  Defendant’s remaining arguments that the agreement is unenforceable based on illegality and barred by the statute of limitations, are OVERRULED.

Demurrer to the Second Cause of Action for Breach of Quasi or Implied-in-Fact Contract is also SUSTAINED WITH LEAVE TO AMEND based on failure to allege facts sufficient to support this claim.  Plaintiff contends that an exception to the illegality doctrine applies here, but has not alleged such facts to support an exception.  (See McIntosh v. Mills (2004) 121 Cal.App.4th 333, 347-348.) 

 

Demurrer to the Third Cause of Action to Quiet Title is also SUSTAINED WITH LEAVE TO AMEND based on failure to allege facts sufficient to support this claim.  Plaintiff has not alleged facts sufficient to support that he holds a “possibility of reverter” with respect to the property.  Defendant’s remaining argument that this claim is barred by the statute of limitations under C.C.P. section 338(d), is OVERRULED.

Demurrer to the Fourth Cause of Action for Intentional Infliction of Emotional Distress is also SUSTAINED WITH LEAVE TO AMEND based on failure to allege facts sufficient to support this claim.  Plaintiff has not alleged facts sufficient to support outrageous conduct by Defendant to support this claim. 

Demurrer to the Fifth Cause of Action for Imposition of Resulting Trust is also SUSTAINED WITH LEAVE TO AMEND based on failure to allege facts sufficient to support this claim.  A resulting trust arises whenever a purchase of real property is made with the money of the beneficiary and the deed to the property is not taken in his name.”    (Laing v. Laubach (1965) 233 Cal.App.2d 511, 515, citing Sandfoss v. Jones (1868) 35 Cal. 481.)  When the party who furnishes the consideration takes legal title in his own name, generally no resulting trust can be imposed in favor of another. (Id. at 517.)  Here, the Complaint alleges that Plaintiff, his wife and Defendant took title to the property, which is evidenced by the Deed of Trust and Assignment of Rents attached to the Complaint.  Additionally, the quitclaim deed attached to the Complaint shows that Plaintiff subsequently transferred all right, title and interest in the property to Defendant. As such, Plaintiff has not alleged facts to support imposition of resulting trust. 

Demurrer to the Sixth Cause of Action for Declaratory Relief is OVERRULED on the other grounds set forth in the demurrer.  Plaintiff alleges facts sufficient to support an actual controversy with Defendant based on a written agreement.  (See Comp. ¶¶ 8-10, 44, 45.)  The language in section 1060 allows for an extremely broad scope of an action for declaratory relief.  (D. Cummins Corporation v. United States Fidelity and Guaranty Company (2016) 246 Cal.App.4th 1484, 1489.)  Even if Plaintiff has not alleged facts sufficient to support a declaration in his favor, this is not a basis for sustaining the demurrer.  (See Hawkins v. McLaughlin (1961) 196 Cal.App.2d 318, 329 [“To hold that a plaintiff on the wrong side of a controversy is not entitled to the security and relief against uncertainty which a declaratory judgment affords would require us to read into the statute a limitation not there present.”].)

 

Plaintiff shall until September 8, 2017 to file and serve a First Amended Complaint.

 

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: 4

CIV518807     BROWNSTONE LOFTS llc, et al. VS. OTTO MILLER, ET AL.

 

 

OTTO MILLER                            Brian W. Newcomb

2141 FOREST VIEW LLC                   BRADLEY KASS

 

 

Motion for summary judgment or in the alternative summary adjudication by Defendant Esther Eames, LLC

TENTATIVE RULING:

 

Defendant’s Motion for Summary Judgment/Summary Adjudication is continued to August 30, 2017 at 9:00 a.m. in the Law and Motion Department.

 

The notice of motion complies with CRC 3.1350(b).  However, the separate statement is not formatted in the manner required by CRC 3.1350(h.  Defendant shall file and serve a separate statement which complies with the rule no later than August 18, 2017.   Plaintiff may file and serve, by overnight mail, a supplemental opposition no later than August 22, 2017 and defendant may file and serve a supplemental reply by August 24, 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.

 



9:00

Line: 5

CIV534538     ALISON JAGHAB VS. WARREN CHAPMAN

 

 

ALISON JAGHAB                          DAVID M. MCKIM

WARREN CHAPMAN                         PAULA CANNY

 

 

ALISON JAGHAB’s MOTION FOR ORDER DEEMING PLAINTIFF'S REQUESTS FOR ADMISSIONS TO BE ADMITTED BY DEFAULT; AND FOR MONETARY SANCTIONS AGAINST WARREN CHAPMAN

TENTATIVE RULING:

 

Plaintiff’s motion to deem requests for admissions to be deemed admitted is DENIED pursuant to CCP §2033.280(c).  The evidence establishes that defendant has provided responses that are in substantial compliance with CCP §2033.220.  All requests for sanctions are denied.

 

CCP §2033.280(b) provides that if a party to whom requests for admission are directed fails to serve a timely response the requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted.  The court shall make this order, unless it finds that he party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests that is in substantial compliance with CCP §2033.220.  CCP §2033.280(c)

 

In this case, defendant served responses to the requests for admission on August 1, 2017.  See Ex. 1 to the Canny declaration and Ex. 24 to the Ruiz declaration.  The responses are in substantial compliance with CCP §2033.220 which requires each answer to be a complete and straightforward as the information reasonably available to the responding party permits and that each answer admit or deny each request or specify any matter as to which the responding party lacks sufficient information to respond.  Although defendant does assert some objections, he admits or denies each request.  Furthermore, plaintiff implicitly concedes that the responses are proper by arguing that the motion is moot.  

 

All requests for sanctions should be denied.  CCP §2033.280(c) states that it is mandatory that the court impose a monetary sanction against the party or attorney whose failure to timely respond necessitated the motion.  However, the circumstances surrounding the filing of this motion suggest that the imposition of sanctions on any party would be unjust in that there was a legitimate dispute between the parties as to whether an agreement had been reached to stay discovery pending mediation.  

 

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: 6 & 7

16-CLJ-01063     MICHAEL P. MELLEMA, et al. vs. MICHELE D. FRIEDMAN, et al

 

 

MICHAEL P. MELLEMA                     Pro/per

MICHELE AND TODD FRIEDMAN              RYAN J. GREENSPAN

USAA CASUALTY INSURANCE                ROBERT S. McLAY

 

6. MOTION FOR ORDER TO COMPEL RESPONSE TO INTERRGOATORIES

TENTATIVE RULING:

 

Plaintiff’s motion to compel responses to interrogatories from Michele and Todd Freeman is DENIED. The motion provides no evidence that Plaintiff served any interrogatories under the provisions of the Discovery Act. (See Code of Civ. Proc. Sect. 2030.010, et seq.) Questions to opposing counsel via email are not Interrogatories. 

 

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.

 

 

7. MOTION TO ORDER aDDENDUM FOR QUI TAM COMPLAINT FOR INSURANCE FRAUD, PERJURY

TENTATIVE RULING:

 

Plaintiff’s motion for leave to amend complaint is DENIED WITHOUT PREJUDICE to refile if the deficiencies are cleared up.

 

This matter was originally set for August 4, 2017. Service by mail was required no later than July 7, 2017. (See Code of Civ. Proc. Sect. 1005 (sixteen court days’ notice) & 1013 (additional five days’ notice when service by mail). For the August 4, 2017, hearing, service was required no later than July 7, 2017. Plaintiff’s Proof of Service, untimely filed three days after the hearing date, on August 7, 2017, shows that service by mail occurred on July 14, 2017. Service was untimely.

 

Further, the motion is denied for failure to comply with California Rules of Court Rule 3.1324 (failure to include copy of proposed amended pleading; failure to state what allegations are to be added).

 

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: 8

17-UDL-00511     21ST MORTGAGE CORPORATION vs. ERICA ACOSTA, et al.

 

 

21ST MORTGAGE CORPORATION              MARK S. BLACKMAN

ERICA ACOSTA                           PRO/PER

 

 

21ST MORTGAGE CORPORATION’S FOR SUMMARY JUDGMENT, FOR ATTORNEYS’ FEES AND FOR ORDER TO REMOVE OCCUPANTS FROM PERSONAL PROPERTY

[CCP §700.080]

TENTATIVE RULING:

 

Plaintiff’s unopposed motion for summary judgment is DENIED. 

In this case, plaintiff has not offered evidence sufficient to establish each of the elements of an unlawful detainer action under CCP §1161a(b)(5).  The Gaspar declaration states that defendant defaulted under the security agreement and that plaintiff served her with a notice of default by certified mail on February 2, 2017.  However, Gaspar does not state that he mailed the notice.  Moreover, only partial copies of certified mail receipts are provided and they are blank.  See Gaspar declaration at ¶9 and Ex. 4.   Furthermore, there is no indication that plaintiff gave notice of the default to the Department of Housing and Community Development as required by §18037.5(a)(2).  The Gaspar declaration merely indicates that the notice was served on defendant.  The notice itself states, “CC: Department of Housing and Community Development” but there is no evidence the notice was actually mailed to the Department.  Again, the

Plaintiff indicates the property was sold at a private sale on April 6, 2017 pursuant to the parties’ security agreement.  See Gaspar declaration, ¶14 and Ex. 1 thereto.  However, plaintiff offers no evidence to establish that the method, manner, time, place and terms of the sale were commercially reasonable, nor that the property is of a type which would permit plaintiff to purchase it at the private sale. 

 

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

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