October 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, October 19, 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-00718     SHISHIR PURI vs. ANDY'S BP, INC., et al.

 

 

SHISHIR PURI                           MICHAEL W. SGANGA

ANDY SABERI                            XAVIER A M LAVOIPIERRE

 

 

1. DEFENDANT’S HEARING ON DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT FOR DAMAGES

TENTATIVE RULING:

 

Defendant counsel’s supporting declaration fails to set forth, as required by CCP section 430.41(a)(3), that the parties met and conferred, “in person or by telephone,” for the purpose of determining whether an agreement could be reached to resolve the objections to be raised in the demurrer. The supporting declaration states only that the parties’ counsel communicated only by email, which is insufficient.

 

The hearing on the demurrer is continued to November 2, at 9:00 a.m. in the Law and Motion Department so that the parties may meet and confer “in person or by telephone.” (Code of Civ. Proc. sect. 430.41.) The demurring party is required to file, no later than 7 days prior to the new hearing date, a code-compliant declaration stating either (1) the parties have met and conferred in person or by telephone and (a) the parties have resolved the objections raised in the demurrer, which shall be taken off calendar or (b) the parties did not reach an agreement resolving the objections raised in the demurrer or (2) the party who filed the pleading subject to demurrer failed to respond to the meet and confer request or otherwise failed to meet and confer in good faith.  If the parties fail to file and serve the Declaration demonstrating compliance with the requirements of Section 430.41, the Demurrer will be stricken as procedurally improper.      

 

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. DEFENDANT’S MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT FOR DAMAGES

tentative ruling:

 

The motion to strike paragraphs 26 and 27 is DENIED. Merely because background events leading to Plaintiff’s claims occurred outside a statute of limitations period does not render the allegations of those events false, improper, or irrelevant.

 

Striking any pleading, or matter contained in a pleading, is discretionary, not mandatory. This is true even when the motion has merit. (See Code of Civ. Proc. § 436 [court “may” strike irrelevant or improper matter].) The paragraphs Defendant wishes to strike are:

 

26.  In or around September 2010, DEFENDANTS hired PLAINTIFF as a cleaner for Bayside 76. PLAINTIFF worked off the books as a cleaner at the various stores owned, operated and supervised by DEFENDANTS until April 2011.

 

27.  In or around April 2011, PLAINTIFF was given more responsibility and began receiving official paychecks from DEFENDANTS.

 

These are events that occurred beyond the statute of limitations, but that does not render them improper or irrelevant. These allegations are relevant to the complaint, which concerns Labor Code violations. The motion also does not explain what is “improper” or “false” about these allegations.  Defendant’s concerns may more appropriately be resolved by the trial judge through motions in limine.   

 

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-02639     HARSAHJ SINGH vs. FRANCES ROSS, et al.

 

 

HARSAHJ SINGH                          SCOTT SEABAUGH

frances ross                           thomas j. murray

 

 

PLAINTIFF’S MOTION FOR JUDGMENT TO BE ENTERED PURSUANT TO CCP SECTION 664.6 AND REQUEST FOR MONETARY SANCTIONS AS TO ALL DEFENDANTS AND/OR THEIR ATTORNEYS

TENTATIVE RULING:

 

This matter is dropped from calendar as the case has been dismissed.

 

 



9:00

Line: 4

17-CIV-00780     DAN GORSKY vs. SPECIAL LEARNING, INC., et al.

 

 

DAN GORSKY                             JENNIFER S. GROCK

KAREN CHUNG                            PRO/PER

special learning, inc.                 pro/per

 

 

KAREN CHUNG’S MOTION FOR RECONSIDERATION OF ORDER DENYING MOTION TO SET ASIDE DEFAULT AND/OR DEFAULT JUDGMENT

TENTATIVE RULING:

 

The Court DENIES Defendant Karen Chung's ("Defendant") Motion for Reconsideration ("instant motion"). (Code Civ. Proc. section 1008.)  Defendant has not presented any new or different facts, circumstances, or law, to warrant reconsideration of the Court's denial of Defendant's Motion to Set Aside Default heard on August 15, 2017 ("underlying motion"). (See Chung Dec., filed Sept. 6, 2017, para. 4.)

 

In the underlying motion, Defendant already proffered, and the Court considered in denying that motion, the declaration of counsel William Shanaberger in support of her reply.  (See Shanaberger Dec., filed Aug. 14, 2017, para. 16 - 18.) Defendant resubmitted that same declaration in support of the instant motion. (See Motion for Reconsideration, filed Sept. 6, 2017, Ex. 2.)

 

Relief is mandatory where an attorney affidavit of fault is filed, "unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect."  (Code Civ. Proc., § 473, subd. (b).) 

 

Here, the Court denied the underlying motion upon finding that Defendant's default was not in fact caused by Mr. Shanaberger's mistake, inadvertence, surprise, or neglect as evidenced by Defendant's declaration filed in support of the underlying motion. Specifically, Defendant stated she did not respond to the Complaint on the advice of counsel. (Chung Dec., filed Jun. 28, 2017, para. 14, 17.) This is further supported by the evidence proffered in opposition to the that motion.  (See Rumler Dec., filed Aug. 1, 2017, para. 10 – 11, Ex. A, B.)

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

CIV536319     FIDELITY NATIONAL, ET AL. VS. 400 CONVENTION WAY, ET Al.

 

 

FIDELITY NATIONAL TITLE COMPANY OF CALIFORNIA     SCOTT HAMMEL

400 CONVENTION WAY, LLC                          MICHAEL B. BROWN

MARK MOORE                                      LOUIS BASILE

 

 

5. PLAINTIFF’S HEARING ON DEMURRER TO FIRST AMENDED CROSS-COMPLAINT OF JAMES C. HAGAN AND JUDITH LYNN HAGIN

TENTATIVE RULING:

 

This motion is dropped from calendar as MOOT as an amended Cross-Complaint has been filed.

 

6. PLAINTIFF’S HEARING ON DEMURRER TO CROSS-COMPLAINT OF MARK MOORE

tentative ruling:

 

This motion is dropped from calendar as a dismissal has been filed by cross-complainant Mark More as to Cross-Defendant Fidelity.

 



9:00

Line: 7

CIV538256     KAREN A. FAGUNDES VS. TIMOTHY W. SILVA

 

 

KAREN A. FAGUNDES                      Pro/per

TIMOTHY W. SILVA                       NOELL KUBOTA

 

 

DEFENDANT’S MOTION FOR ATTORNEY’S FEES AND COSTS

TENTATIVE RULING:

 

The unopposed Motion of Defendant Timothy Silva (“Defendant”) for Attorney’s Fees and Costs is GRANTED in part.  As the prevailing party on the special motion to strike, Timothy is awarded his attorney’s fees in the amount of $16,986.00.  (See C.C.P. § 425.16(c)(1).)

 

Defendant also seeks costs in connection with the special motion to strike and the appeal.  However, the proper procedure for requesting costs is through a memorandum of costs.  (See CRC Rule 3.1700 (prejudgment costs); see also CRC Rule 8.278(c) (costs on appeal).)  Accordingly, defendant’s motion for costs is DENIED without prejudice to seeking such costs through the memorandum of costs procedure.  (See CRC Rule 3.1700, 8.278.)

 

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: 8

CLJ194489     NICHOLAS a. STEVENS CO. VS. DAVID FENNELL

 

 

NICHOLAS A. STEVENS CO.                LESLIE HOLMES

DAVID FENNELL                          Pro/per

 

 

DAVID FENNELL’S MOTION TO VACATE JUDGMENT AND APPLICATION OF RENEWAL OF JUDGMENT

TENTATIVE RULING:

 

The Motion of Defendant David Fennell (“Defendant”) to Vacate Judgment and Application of Renewal of Judgment is DENIED. 

 

A judgment was entered in this action on March 19, 2007 against Defendant for $3,080.00, and thereafter the judgment was renewed on March 8, 2017 for $6,182.28. 

 

Defendant seeks to vacate the judgment and renewal of judgment on the ground that he paid this judgment in full by a $3,080 check on November 18, 2008 to Indian Creek Apartments.  The motion was continued from its original hearing date of August 8, 2017 for Defendant to provide evidence of the $3,080 payment, such as a copy of the paid check, a bank statement reflecting the check payment, or other similar evidence.  No further evidence has been presented to the court.

 

Additionally, it does not appear that Defendant’s $3,080 payment, if proof of payment had been made, would have satisfied the judgment in full because post-judgment interest accrued since entry of the judgment on March 19, 2007. 

 

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