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

 

Thursday, April 27, 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-02480     Charles J. Katz vs. MICHAEL VALENZUELA

 

 

Charles J. Katz                        Pro/per

Michael Valenzuela                     pro/per

 

 

Petition to confirm arbitration award

TENTATIVE RULING:

 

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

 



9:00

Line: 2

17-CIV-00757     GATEWAY BANK, F.S.B. vs. GERASIMOS METAXAS, et al.

 

 

GATEWAY BANK, F.S.B.                   JEFFREY B. KIRSCHENBAUM

Ioanian venture partners, llc           Michael h. meyer

 

 

Hearing on demurrer to complaint

TENTATIVE RULING:

 

This matter is dropped from calendar as an amended complaint was filed on April 14, 2017.

 



9:00

Lines: 3 & 4

17-UDL-00215     Sammy Ma vs. Thomas Eide, et al.

 

 

Sammy Ma                               EDWARD C. SINGER, JR.

Thomas Eide                            Pro/per

 

 

 

3. hearing on demurrer

TENTATIVE RULING:

 

The demurrer is ordered off calendar due to a lack of the notice required by CCP §1005. 

 

CCP §1005 requires motions to be served sixteen court days before the hearing plus an additional 5 calendar days where service is by mail.  Given a hearing date of April 27, 2017, the last day for mail service was March 30, 2017.  Here, mail service was April 4, 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.

 

 

4. motion to strike

Tentative ruling:

 

The motion to strike is ordered off calendar due to a lack of the notice required by CCP §1005. 

 

CCP §1005 requires motions to be served sixteen court days before the hearing plus an additional 5 calendar days where service is by mail.  Given a hearing date of April 27, 2017, the last day for mail service was March 30, 2017.  Here, mail service was April 4, 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

Lines: 5 & 6

CIV522693     J.B.B. INVESTMENT, ET AL. VS. R. THOMAS FAIR, ET AL.

 

 

J.B.B INVESTMENT PARTNERS LTD.          ROBERT E. CAREY

BRE BOULEVARD LLC                      PATRICK BALDWIN

 

 

5. hearing on demurrer

TENTATIVE RULING:

 

Defendants’ Demurrer to Plaintiffs’ First Amended Complaint (FAC), filed April 20, 2015, is addressed as follows:

 

An as initial matter, Plaintiffs have not established that the Demurrer is untimely.  Defendants filed a Demurrer to the FAC on May 29, 2015, shortly before the case was stayed, in June 2015, pending appeal of the Court’s Order denying a motion to compel arbitration.  Defendants then filed the present Demurrer the day the appellate court issued its Remittitur.  The original 2015 Demurrer was never ruled upon.  Plaintiffs have not provided authority demonstrating that the present Demurrer, under these circumstances, must be identical to the original Demurrer.  Accordingly, the Court will address the merits.   

 

As to the first cause of action for “securities fraud in violation of California Corporation Code,” the Demurrer is OVERRULED.  From the face of the FAC, the claim is not clearly time-barred.  Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42 (the running of the statute must appear “clearly and affirmatively” from the face of the complaint.  It is not enough that the complaint might be time-barred.  Union Carbide Corp. v. Sup.Ct. (1984) 36 Cal.3d 15, 25 (allegations as to why plaintiff did not discover a defendant’s conduct are generally not required to withstand Demurrer).  Here, Plaintiffs plead facts indicating they did not discover the alleged securities fraud until April 24, 2013, shortly before the original Complaint was filed, which may make the claim timely.  FAC, Para. 29; Calif. Corp. Code Sect. 25506; Code Civ. Proc. 338(d) (delayed discovery rule postpones the claim until after Plaintiff had reason to discover the cause of action); FAC, Para. 24, 32-3, 39, 44, 49-50 (allegations that Defendants concealed material facts from Plaintiffs, which delayed their discovery of the facts forming the basis of the claim).  Defendants’ contention that this cause of action lacks enough specificity also lacks merit.  As with all of the fraud-based causes of action in the FAC, they incorporate the FAC’s Summary of Facts, which sufficiently plead the factual basis for these claims.  To the extent Defendants seek additional details regarding the alleged misrepresentation(s) and concealment(s), they can be ascertained in discovery.  The allegations here are sufficient to state a claim for relief. 

 

As to the second and tenth causes of action for “fraud” and “rescission for fraud in the inducement,” the Demurrer is OVERRULED, for the same reasons set forth above as to the securities fraud claim.  Defendants argue that the alleged fraud/concealment of material facts took place in 2007-2008, and that the FAC does not sufficiently plead facts demonstrating a delayed discovery.  As explained above, the claim withstands the Demurrer so long as it is not clearly time-barred on its face, which here it is not.  Code Civ. Proc. 338(d) (delayed discovery rule).  As to the specificity argument, the incorporated Summary of Facts alleges a number of misrepresentations and concealments of material facts that, if known, would have allegedly dissuaded Plaintiffs from entering into the investment, such as the fact that Plaintiffs’ returns would be subordinate to loans repayable to Defendants Fair and Bronco, and that Bronco, which Defendant Fair controlled, was the Managing Member of Boulevard and Cameron Creek.  These allegations are sufficient to state a cause of action.  Defendants argue in their Reply that Defendants failed to pay the “guaranteed” 8% return for 10 straight quarters, starting in 2008, which under the delay discovery rule, from which Plaintiffs should have suspected wrongdoing and investigated the matter.  Defendants argument may ultimately have merit, but on its face, the frauds claims are not clearly time-barred. 

 

The rescission claim (tenth cause of action) is more appropriately characterized as a remedy rather than a cause of action.  Given the fraud and fiduciary allegations, the request to rescind the contract is permissible at the pleading stage and the Demurrer is OVERRULED. 

 

As to the third cause of action for breach of fiduciary duty, the Demurrer is OVERRULED.  Defendants’ supporting Memorandum of Points & Authorities does not address this claim.  The FAC states a claim for breach of fiduciary duty.  FAC, Para. 82-90, incorporating the Summary of Facts.  

 

As to the fourth cause of action for constructive trust, the Demurrer is OVERRULED.  Defendants’ supporting Memorandum of Points & Authorities contains no argument as to this claim.  

 

As to the fifth cause of action for breach of contract (the “investment agreements”), the Demurrer is OVERRULED.  Plaintiffs argue the delayed discovery rule applies here to defeat the statute of limitations argument, because it was not until 4-24-13, just months before the original Complaint was filed, that Fair revealed why he had never paid Plaintiffs the promised 8% guaranteed return.  FAC, Para. 29; Code Civ. Proc. 337 (two-year statute for breach of oral agreement; four-year statute for written agreements).  Defendants argue the claim is time-barred because given the “guaranteed” 8% return, which Defendants never paid starting in 2008, Plaintiffs clearly had notice of the alleged breach starting no later than in 2008.  Defendants, however, do not address the issue of periodic breaches and the “continuing accrual” doctrine, which applies where an obligation arises on a recurring basis, which triggers a new statute of limitations for each passing period, including situations such as this, involving periodic payments.  Given that the payments are allegedly due on a quarterly basis, each non-payment may constitute a new and distinct breach, triggering a new statute of limitations.  Accordingly, while a portion of the claimed damages may be time-barred, the allegations state a cause of action for breach of contract.  

 

As to the sixth cause of action for breach of implied covenant of good faith and fair dealing, the Demurrer is OVERRULED.  CACI 325 (required claim elements).  Defendants characterize the FAC as merely alleging that Defendants promised an 8% annual return and did not provide it, which at most is a contract breach.  As Plaintiffs note, the FAC alleges Defendants concealed the existence of personal loans to Fair and Bronco, diverted funds that should have been paid to Plaintiffs on a priority basis under the contract in order to benefit themselves, concealed litigation brought by other investors, concealed Fair’s discovery misconduct in the Marin County case that resulted in terminating sanctions against him, concealed and withheld the Operating Agreements, etc.  These alleged acts go beyond mere contract breach; they allege deliberate acts to frustrate the purpose of the contract.  They are sufficient to state a claim for relief.   

 

As to the seventh cause of action for declaratory relief, the Demurrer is OVERRULED.  Declaratory relief is more appropriately characterized as a remedy than a cause of action.  The request for declaratory relief is permissible at the pleading stage.  Plaintiffs contend that as investors, they are entitled to certain information under the Corporations Code, and have requested that Defendants provide them the required information.  Corp. Code Sect. 17701.13 and 17704.10.  The Court has discretion to grant declaratory relief where appropriate.  There is no reason to sustain a Demurrer to the request for declaratory relief at this preliminary stage.   

 

As to the eighth cause of action for breach of contract (Settlement Agreement), the Demurrer is OVERRULED.  The text and email communications attached to the FAC allegedly constitute an offer and acceptance, which are sufficient to state a claim for breach of contract.  To the extent the statute of frauds applies, the alleged texts and emails may constitute a writing.  See Opposition at 11, FN 6.  As Plaintiff notes, the Court of Appeal’s 12-5-14 decision did not reach the issue of whether Plaintiffs can enforce the July 4 offer by another method, such as a motion for summary judgment for breach of contract.  

 

As to the ninth cause of action for promissory estoppel, the Demurrer is OVERRULED.  Courts have recognized promissory estoppel as a distinct cause of action, which Plaintiffs here have pleaded as an alternative theory, in the event the Court finds that the alleged written settlement agreement is unenforceable.  The allegations are sufficient to state a claim for relief.  Aceves v. U.S. Bank, N.A. (2011) 192 Cal.App.4th 218, 226.

 

As to the eleventh cause of action for legal malpractice, the Demurrer is OVERRULED.  As stated, Demurrers based on the statute of limitations are appropriate only where it is clear from the face of the Complaint, or in light of matters subject to judicial notice, that the claim is time-barred.  Code Civ. Proc. Sect. 340.6 provides that an attorney malpractice claim may be tolled where the attorney conceals facts, as is alleged here.  Sect. 340.6(a)(3).  Given that Plaintiffs first asserted this cause of action in 2015 based on litigation that concluded in 2011, it may ultimately be time-barred.  On Demurrer, however, that is not clear from the face of the FAC, even in light of the Marin County Superior Court docket showing when the underlying case concluded.  The Court cannot rule out the delayed discovery rule based on the allegations. 

 

Defendant shall file an answer to the complaint on or before May 12, 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.

 

 

6. motion to strike

Tentative ruling:

 

Defendants’ Motion to Strike portions of Plaintiffs’ FAC is GRANTED-IN-PART and DENIED-IN-PART, as follows:

 

The motion to strike the punitive damages claim is DENIED.  The FAC includes three causes of action for fraud, alleging both affirmative misrepresentations and the concealment of material facts by an alleged fiduciary.  These allegations of fraudulent acts are sufficient to support the claim for punitive damages under Civ. Code Sect. 3294. 

 

The motion to strike the FAC’s request for attorney’s fees is GRANTED.  A party generally is not entitled to recover attorney’s fees except where provided for by contract or statute.  Code Civ. Proc. Sect. 1033.5(a)(10).  The FAC here identifies no contractual or statutory basis for attorney’s fees. 

 

The motion to strike the constructive trust claim is DENIED.  The FAC alleges fraud and breach of fiduciary duty, claiming the fiduciary Defendant(s) improperly took investment proceeds that should have been given to Plaintiffs.  These allegations potentially support the request for a constructive trust.  Warren v. Merrill (2006) 143 Cal.App.4th 96, 113; Civ. Code 2224. 

 

Defendants’ Request for Judicial Notice as to Exhibits A-C (Original Complaint, Court of Appeal decision, and the Marin County Superior Court docket), and supplemental Exhibit A (Remittitur issued by the Court of Appeal) is GRANTED.  Evid. Code Sect. 452(d).   

 

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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Line: 7

CIV533327     CAROLINE MANEATIS VS. HILTON SAN FRANCISCO AIRPORT

                 BAYFRONT

 

 

 

CAROLINE MANEATIS                      JOHN T. HANSEN

HILTON SAN FRANCISCO AIRPORT BAYFRONT   GREGORY P. ARAKAWA

 

 

Motion to compel discovery responses, etc.

TENTATIVE RULING:

 

The Motion of Defendant Harbor View Hotels, Inc. (“Defendant”) to Compel Discovery Responses and Request for Monetary Sanctions, is GRANTED.  Although Defendant acknowledges receiving responses from Plaintiff to this discovery after Plaintiff opposed this motion, the responses do not comply with the Code of Civil Procedure.  (See C.C.P. §§ 2030.220, 2031.210, 2031.230.)  Therefore, Plaintiff Caroline Maneatis (“Plaintiff”) is to provide code-compliant verified responses, without objections, to Defendant’s Supplemental Interrogatories and Supplemental Request for Production of Documents, on or before May 12. 2017. 

 

Sanctions are also GRANTED in the amount of $1,000, payable by Plaintiff to Defendant within 30 days 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.

 



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CIV536130     JESUS ALVARADO, ET AL. VS. MATHEAS D. HUTCHERSON

 

 

JESUS ALVARADO                         LARRY Q. PHAN

MATHEAS D. HUTCHERSON                  JAMES P. MOLINELLI, JR.

 

 

Motion for order COMPELLING FURTHER RESPONSES TO FORM INTERROGATORIES AND DISCOVERY VERIFICATIONS

TENTATIVE RULING:

 

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

 



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Line: 9

CIV538251     SHANNEL GONZALEZ VS. SAN MATEO COUNTY, ET AL.

 

 

SHANNEL GONZALEZ                       DAVID L. MILLIGAN

ARTHUR MARTIN STROLL                   John C. Beiers

 

 

Motion to compel ANSWER TO DEPOSITION QUESTIONS AND FOR PROTECTIVE ORDER THAT PLAINTIFF ANSWER DEPOSITION QUESTIONS, AND FOR SANCTIONS

TENTATIVE RULING:

 

This matter is dropped from calendar as a CCP 998 offer has been accepted.

 

 



 

 

In the Superior Court of the State of California

In and for the County of San Mateo

 

WRITS AND RECEIVERS CALENDAR

Judge: Honorable JOHN RUNDE

Department 42

 

400 County Center, Redwood City

Courtroom 2F

 

Thursday, April 27, 2017

 

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

 you must call (650) 261-5128 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

17-CIV-01444     DAVID HOKAMP vs. DIRECTOR OF THE DEPARTMENT OF MOTOR

                    VEHICLES

 

 

DAVID HOKAMP                                Majeed S. Samara

DIRECTOR OF THE DEPARTMENT OF MOTOR VEHICLES

 

 

Petition for writ of mandate

TENTATIVE RULING:

 

The Petition for Writ of Mandate by David Hokamp seeking to vacate the March 1, 2017 Findings and Decision by the Department of Motor Vehicles is DENIED.

 

There is no proof of service showing service of the Petition or the Notice of Hearing on the Department of Motor Vehicles and the Department of Motor Vehicles has not voluntarily appeared in this action.

 

The sole issue presented in the Petition is that Petitioner did not receive an appropriate admonition concerning the consequences of refusal to submit to a chemical test.  The only relevant portion of the administrative record provided by Petitioner is the Notification of Findings and Decision itself, there is no transcript or document showing the evidence presented at the Administrative Hearing and therefore no evidence to support Petitioner’s contention that the admonition provided by the officer was inadequate.  This court rejects Petitioner’s contention that a verbatim reading of Vehicle Code section 23612(a)(1)(D) is a mandatory perquisite to an administrative suspension. 

 


 

 

 


POSTED:  3:00 PM

 

 

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