January 19, 2018
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, January 18, 2018

 

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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16-CIV-00084     DARRYL JUE vs. JALAL J. SAFFARIAN, et al.

 

 

DARRYL JUE                             MARK WATSON

JALAL J. SAFFARIAN                     pro/per

h. nguyen and intero real estate        cong wang

 

 

INTERO REAL ESTATE SERVICES, INC.’S DEMURRER TO PLAINTIFF’S THIRD AMENDED COMPLAINT

TENTATIVE RULING:

 

At the time the demurrer was filed, defendants failed to provide a declaration, as required by CCP §430.41(a)(3), showing that the parties met and conferred for the purpose of determining whether an agreement could be reached to resolve the objections to be raised in the demurrer.  Although defendants have subsequently provided a declaration with their reply brief, it is unclear whether the parties did, in fact, meet and confer by telephone or in person as required by the statute.   Therefore, the hearing on the demurrer is continued to February 7, 2018 at 9:00 a.m. in the Law and Motion Department so that the parties may meet and confer. 

 

Defendants are 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 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 defendants 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.

 

 



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16-CIV-02858     VICKY CHON HARRIS vs. SASHI P. SMITH, et al.

 

 

VICKY CHON HARRIS                      DENNIS ZELL

SASHI SMITH                            SIMON OFFORD

first american title                   l. bryant jaquez

TERRACE ASSOCIATES                     MARK C. CARLSON

 

 

FIRST AMERICAN TITLE COMPANY’S HEARING ON DEMURRER TO THE FIRST AMENDED CROSS-COMPLAINT OF TERRACE ASSOCIATES, INC.

TENTATIVE RULING:

 

Cross-Defendant FIRST AMERICAN TITLE COMPANY’s Demurrer to the First Amended Cross-Complaint filed by TERRACE ASSOCIATES, INC. and AL RUSSELL is OVERRULED as to the First cause of action for indemnity and Second cause of action for contribution.  The Court finds that these causes of action are sufficiently stated. 

 

Under the doctrine of equitable indemnity, “a concurrent tortfeasor enjoys a common law right to obtain partial indemnification from other concurrent tortfeasors on a comparative fault basis.” American Motorcycle Association v. Superior Court (1978) 20 Cal.3d 578.  California courts have required the party seeking equitable indemnity to demonstrate that the proposed indemnitor would be liable as a tortfeasor to the underlying plaintiff.  GEM Developers v. Hallcraft Homes of San Diego, Inc. (1989) 213  Cal.App.3d 419, 429.

Similarly, equitable contribution is the right to recover from a co-obligor who shares liability with the party seeking contribution.  Fireman’s Fund Insurance Company v. Maryland Casualty Company (1998) 65 Cal.App.4th 1279, 1292. The right to contribution depends upon the existence of an obligation owed to an injured party. Id. at 1293.

 

Here, Terrace seeks equitable indemnity and contribution against First American based on First American’s role as the title and escrow company in the transaction between the Smiths and Elevation Homes.  Further, it is alleged that First American specifically agreed to search the public records for Plaintiff’s threatened lis pendens as an accommodation during escrow proceedings, which gave rise to an additional duty upon which First American can be held liable.  (FACC ¶¶ 17, 18.)

 

First American argues generally that a title insurer does not have an affirmative duty to disclose liens or other clouds affecting title, unless it is providing an abstract of title. Further, in its role as the escrow holder, First American argues that its duties are limited to the faithful performance of escrow instructions.  While this may be the general rule, Terrace alleges that First American assumed the additional duty of searching the public records for this lis pendens as an accommodation during escrow, and that First American was actually aware that a lis pendens was being threatened by Plaintiff.  Given the facts of this case, First American’s general argument is not well taken.

 

First American cites to the Banville v. Schmidt case for the proposition that a broker cannot obtain indemnity against the title company when the broker’s conduct was not done in reliance on any information provided by the title company. However, this not the case here.  Terrace alleges that it was specifically relying upon First American to search the public records and to provide timely notice of Plaintiff’s lis pendens prior to the close of escrow, which would have circumvented the damages being claimed by Plaintiff and Elevation Homes in this action. 

 

However, the demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to the Third cause of action for declaratory relief, which Terrace concedes is “dependent on and wholly derivative” of its first two causes of action.  “The declaratory relief statute should not be used for the purpose of anticipating and determining an issue which can be determined in the main action. The object of the statute is to afford a new form of relief where needed and not to furnish a litigant with a second cause of action for the determination of identical issues.” California Ins. Guarantee Assn. v. Superior Court (1991) 231 Cal.App.3d 1618, 1623-24.

 

Cross-Defendant shall file a responsive pleading on or before February 2, 2018.

 

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, DEMURRING PARTY is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order is to be submitted directly to Judge Richard H. DuBois, Department 16.

 

 



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17-CIV-00458     ELVINA PEREIRA vs. AZEVEDO FEED, INC., et al.

 

 

ELVINA PEREIRA                         Karen M. Platt

AZEVEDO FEED, INC.                     JULIAN PARDINI

THOMAS AZEVEDO, TRUSTEE                JEFFREY VUCINICH

 

 

THOMAS AZEVEDO’S MOTION FOR SUMMARY JUDGMENT

TENTATIVE RULING:

 

Defendant Thomas J. Azevedo, Trustee of the Wilbur and Cecilia Azevedo Trust’s (“Trustee”) Motion for Summary Judgment, or alternatively, Motion for Summary Adjudication, is DENIED. 

 

The Complaint asserts claims against the Trustee for general negligence and premises liability.  Trustee Thomas J. Azevedo argues that in his capacity as Trustee, he was merely a “passive” owner of both the property (the premises) and the Company, Defendant Azevedo Feed, Inc., which operated a business on the site.  The evidence here precludes summary judgment and summary adjudication of Plaintiff’s claims against the Trustee. 

 

First, the Court notes that despite statements to the contrary in the briefing both supporting and opposing this motion, the Trust itself is not the moving party on this motion, and in fact is not a party to the case.  In general, a Trust is not a separate entity in and of itself, cannot hold legal title to real property, and cannot sue or be sued.  Portico Management Group, LLC v. Harrison (2011) 202 Cal.App.4th 464.  Thus, the repeated statements in the briefing that “the Trust” owns the property and is the moving party on this motion mischaracterize both the pleadings in this case and the law.  The evidence here indicates that Thomas J. Azevedo holds legal title to the property in his capacity as Trustee of the Trust.  

 

In general, property owners owe a duty of care to invitees to protect them against known dangers/risks of harm on the premises.  See CACI 1000.  Here, there is no evidence of any Lease, or any indication that the property owner (the Trustee) gave up or surrendered control over the property.  The deposition testimony indicates that the Trustee (the property owner), Mr. Azevedo, was also an employee of Azevedo Feed, Inc., and was physically present on the property every day.  By all indications, he appears to have been very involved in and knowledgeable regarding the operation of the business, including the situation with Holly and her newborn calves.  Mr. Azevedo, the Trustee, testified that in his opinion, customers/invitees should never have been permitted to enter the cow’s corral, because a cow nursing calves can be protective of her calves, and therefore could present a danger to persons in the corral.  (Thomas J. Azevedo Tr. 52).  Other deposition testimony indicates that employees were never told not to invite or permit customers into the cow’s corral, that the corral had no lock, and that there were no signs/warnings telling customers not to enter the corral.  (Id. at 54-56).  And although this fact is disputed, Plaintiff testified that a company employee expressly invited her into the corral to see Holly’s calves up close, which allegedly led to Plaintiff being attacked and injured.  (Pereira Tr. 56).    

 

Construing, as the Court must, the evidence in a light favorable to Plaintiff, and drawing all reasonable inferences in her favor, the claims against the Trustee cannot be resolved on summary judgment/adjudication.  The Trustee’s argument pertaining to CACI 462 (Strict Liability for Injury Caused by Domestic Animal with Dangerous Propensities) does not change the result.  The Trustee argues it had no actual or constructive notice that the cow presented a danger to anyone.  The Trustee’s own testimony, however, undercuts that argument, given his explanation of why customers, in his opinion, should not be permitted near a nursing cow and her calves.  And as Plaintiff notes, even normally docile animals can present a danger to persons on the property depending on the circumstances.  The fact that the injury here involved an animal does not preclude application of general principles of negligence and premises liability.

 

The Trustee’s Objections to Plaintiff’s Evidence are OVERRULED in their entirety.

 

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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17-CIV-01113     ADOLFO SEQUEIRA, JR. vs. MARCEL DUC NGUYEN, et al.

 

 

ADOLFO SEQUEIRA, JR.                   Pro/PER

MARCEL DUC NGUYEN                      SCOTT R. KANTER

DIGNITY HEALTH                         SUSAN OSTER FISH

 

 

DIGNITY HEALTH’S MOTION TO COMPEL PLAINTIFF TO RESPOND TO FORM INTERROGATORIES, AND REQUEST FOR PRODUCTION OF DOCUMENTS

TENTATIVE RULING:

 

DIGNITY HEALTH’s unopposed motion is GRANTED.  Plaintiff shall provide verified responses, without objection, to the interrogatories and requests for production of documents on or before February 2, 2018.  The genuineness of any documents and the truth of any matters in the requests for admission are deemed admitted. 

 

The request for sanctions is also granted pursuant to CCP §§2030.290(c), 2031.300(c) and CCP §2033.280(c).  Plaintiff shall pay defendant $390 on or before February 28l, 2018. 

 

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, moving party is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order is to be submitted directly to Judge Richard H. DuBois, Department 16.

 

 



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17-CIV-01240     ELIZABETH WHITE vs. JEFFERSON COUNTY SCHOOL

                   DISTRICT, et al.

 

 

ELIZABETH WHITE                        Pro/PER

JEFFERSON COUNTY SCHOOL DISTRICT        ERIC SHIU

 

 

PLAINTIFF’S MOTION TO SET ASIDE JUDGMENT

TENTATIVE RULING:

 

Plaintiff is seeking to vacate a dismissal entered by Judge Karesh.  Consequently, the motion is continued to February 21, 2018 at 9:00 AM in Department 20 so that it may be heard by Judge Karesh. 

 



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17-CIV-02075     HERBERT D. TODD vs. AMALGAMATED TRANSIT UNION LOCAL

                   1574, et al.

 

 

HERBERT D. TODD                        MICHELLE D. STRICKLAND

AMALGAMATED TRANSIT UNION lOCAL 1574    JEFFREY DEMAIN

 

 

PLAINTIFF’S MOTION TO DISQUALIFY OPPOSING COUNSEL

TENTATIVE RULING:

 

 

The Motion of Plaintiff Herbert D. Todd (“Plaintiff”) for Order Disqualifying Opposing Counsel (“Counsel”) is DENIED. 

 

“To determine whether there is a substantial relationship between successive representations, a court must first determine whether the attorney had a direct professional relationship with the former client in which the attorney personally provided legal advice and services on a legal issue that is closely related to the legal issue in the present representation.  (City and County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal.4th 839, 847.) Here, Plaintiff fails to establish that an attorney-client relationship existed between Plaintiff and Counsel in connection with the prior arbitration proceeding.

 

The problem with Plaintiff’s motion is that there was no prior attorney-client relationship between Plaintiff and the law firm.  Plaintiff admits that the law firm previously represented the Union, not Plaintiff. Plaintiff claims he still had a vested interest in the outcome of the arbitration proceedings, but Plaintiff has not presented any authority to support that somehow that created an attorney-client relationship.  In fact, Plaintiff’s First Amended Complaint only names the Union as a defendant, not the law firm, even though the allegations are that attorney Purtell failed to provide competent legal representation.  Thus, the allegations are similar to a legal malpractice claim, even though there is no cause of action for legal malpractice. In researching this issue, it appears that Plaintiff cannot sue the law firm because the Collective Bargaining Agreement provides only for the Union to submit a request in writing for arbitration of a grievance.  (See First Amended Complaint, Exh. A, Collective Bargaining Agreement (“CBA”), p.117.)  Without an express provision in the CBA, an employee is not entitled to intervene or actively participate in arbitration proceedings under a CBA between an employer and a union.  (20 Williston on Contracts § 56:81 (4th ed.).) As a consequence of the employee’s lack of standing to initiate arbitration, the employee must rely on the union’s exercise of its duty of fair representation.  Thus, this appears to be the reason why Plaintiff is bringing this action against the Union for breach of fair duty of representation, and not an action for legal malpractice against the law firm.  Without an attorney-client relationship between Plaintiff and the law firm, there is no potential conflict with the law firm representing the Union in this action.

 

Further, even if the court were to find that an attorney-client relationship existed between Plaintiff and the law firm because Plaintiff had a vested interest in the arbitration proceedings, it appears that any information disclosed to the law firm was not intended to be confidential from the Union.  Plaintiff admits the law firm represented the Union in the arbitration proceedings.  By disclosing Plaintiff’s criminal file to the law firm, Plaintiff could not have intended to keep it confidential from the Union.

 

The Union’s Objection nos. 1, 2 and 3, are SUSTAINED as to the objections based on lack of foundation and speculation.

 

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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17-CIV-02910     1893 WOODLAND EPA, LLC vs. VIDA CAPITAL GROUP, LLC, et al.

 

 

1893 WOODLAND EPA, LLC                 ANDREW C. CROSS

VIDA CAPITAL GROUP, LLC                PRO/PER

 

 

VIDA CAPIITAL GROUP, LLC AND MALCOLM DURHAM’S MOTION TO VACATE THE REQUEST FOR ENTRY OF DEFAULT BY 1893 WOODLAND EPA, LLC AND FOR LEAVE TO FILE DEMURRER AS A RESPONSIVE PLEADING TO THE FIRST AMENDED COMPLAINT

TENTATIVE RULING:

 

The Motion is continued to February 15, 2018 at 9:00 a.m. in the Law and Motion Department so as to bring it into compliance with CCP §1005. 

 

Defendants correctly point out that the motion was not served in compliance with the notice requirements of CCP §1005.  Mail service on December 19, 2017 gave plaintiff 16 court days’ notice but not the additional five calendar days required for mail service.  Plaintiff opposes the motion on this basis and has not waived the service defect by addressing the merits of the motion. 

To the extent defendants argue CCP §1005 permits the court to shorten time, he concedes that this is typically done prior to filing a motion and offers no authority indicating the court may rule on a motion that was not properly served where the opposing party has objected on this basis.

Instead of denying the motion without prejudice to refile it, the court will simply continue the motion in the spirit of judicial economy and efficiency. 

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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17-CIV-04207     STEPHEN ODEN vs. RODERICK S. RUMLER, et al.

 

 

STEPHEN ODEN                           Pro/PER

RODERICK S. RUMLER                     PRO/PER

 

 

RODERICK S. RUMLER’s SPECIAL MOTION TO STRIKE PLAINTIFF’S COMPLAINT

TENTATIVE RULING:

 

The motion is timely. (Code of Civ. Proc. sect. 418.10, subd. (b)

 

Plaintiff’s Opposition is untimely, but Defendant fails to demonstrate any prejudice from the late filing. Regardless, as set forth below, the Court’s ruling on this motion would be the same if Plaintiff filed no opposition at all.

 

DEFENDANT’S SPECIAL MOTION TO STRIKE IS DENIED. Defendant fails to meet his moving burden of establishing that the complaint or any cause of action is one arising from protected activity.

 

Defendant’s motion contends that the communications giving rise to this action are protected activity because they are settlement communications in the context of anticipated litigation. The motion, however, relies on a single email, dated January 5, 2017, in which Defendant demands that he be paid for his work. (Declaration of Rumler, paras. 10, 11, 15, 16, and Exhibit A.) The complaint, however, is based on much more than Defendant’s emails of January 5 and 8, 2017. The Complaint is also based on Defendant’s alleged threats to report Plaintiffs to the IRS, attorneys general, and law enforcement. (Complaint Exhibits C-6, C-7, C-11, C-13, C-16.) Such statements are alleged to constitute extortion, which falls outside protected activity. (Flatley v. Mauro (2006) 39 Cal.4th 299.)  The Complaint is also based on statements Defendant allegedly made to third parties. (Complaint paras. 38, 39, 75.) Statements to third parties are not settlement communications in the context of prelitigation. 

 

Since the complaint is based on communications that constituted extortion or were made to persons other than Plaintiffs, the complaint does not arise from protected activity under Code of Civ. Proc. section 425.16. Therefore, Defendant fails to meet his moving burden of establishing that the complaint arises from protected activity.  For Defendant’s failure to meet his moving burden, the burden does not shift to Plaintiffs to show a probability of prevailing. The court need not engage in the second prong of the anti-SLAPP analysis (evaluation of Plaintiff’s probability of prevailing.)

 

 

 

Defendant’s request for attorney’s fees is denied. The motion, while lacking merit, does not appear frivolous or intended solely to cause unnecessary delay. (Code of Civ. Proc. sect. 425.16, subd. (c)(1).) 

 

Defendant Roderick S. Rumler shall file his responsive pleading no later than February 2, 2018.

 



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17-CIV-05724     MONSTER INC. vs. MONSTER DIGITAL, INC., et al.

 

 

MONSTER INC.                           ROBERT VOLYNSKY

MONSTER DIGITAL, INC.                  PRO/PER

 

 

PLAINTIFF’S WRIT OF ATTACHMENT

TENTATIVE RULING:

 

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

 

 



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17-CLJ-04282     WELLS FARGO BANK, N.A. vs. LAKISHA C. BARNES

 

 

WELLS FARGO BANK, N.A.                 STEPHEN S. ZELLER

LAKISHA C. BARNES                      PRO/PER

 

 

PLAINTIFF’S MOTION FOR JUDGMENT ON PLEADINGS

TENTATIVE RULING:

 

The unopposed motion is GRANTED.  The complaint states facts sufficient to constitute a cause of action and the answer does not allege facts to constitute a defense.  CCP §438(c)(1)(A). 

 

Judgment shall be entered in favor of plaintiff in the amount of $6,908.80 principal plus $384.50 costs.

 

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, moving party is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312.  The proposed order and judgment is to be submitted directly to Judge Richard H. DuBois, Department 16.

 

 



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CIV537173     HENRY ALMENDAREZ VS. JOHN cU

 

 

HENRY ALMENDAREZ                       OWILI K. EISON

MARILENE CU                            KEVIN J. HERMANSON

 

 

11. PLAINTIFF’S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT TO ALLEGE PUNITIVE DAMAGES

TENTATIVE RULING:

 

Plaintiff’s Motion for Leave to File an Amended Complaint to Allege Punitive Damages is DENIED WITHOUT PREJUDICE.

 

Despite the generally liberal rule in favor of amending pleadings, a “court should deny leave to amend where the facts are not in dispute and no liability exists under substantive law.” Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2017) ¶ 7:129.1, citing Jenkins v. JP Morgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 535. While the issue on a motion for leave to amend generally concerns the allegations to be added, Plaintiff’s moving papers largely argue the evidence available—i.e. Plaintiff heavily focuses on the deposition transcript in which defendant John admits he “looked down at [his] phone.” Decl. of Bakhsheshian, Ex. A, pp. 64:19-22 and 68:12-16. Punitive damages must be proven by clear and convincing evidence. CACI No. 3940. This singular fact—that Plaintiff “looked down at” his phone, while stopped, within the 15 seconds prior to the collision, does not meet the clear and convincing standard. Moreover, the allegations proposed do not recite these facts; instead, the amendments allege that “Defendants violated California Vehicle Code, including but not limited to Vehicle Code Section 22450 (a), 23123, 23124, and 23125, so that Defendant is negligent per se.” Decl. of Bakhsheshian, Ex. F. These are allegations of negligence per se—they are not allegations of fraud, oppression, or malice that would be sufficient to give rise to a claim of punitive damages. While the Court is mindful of the liberal standard favoring amendment, the allegations here are so thin that it appears the actual punitive damages allegations would be subject to a motion to strike on these facts such that no liability for punitive damages exists on the facts to be alleged. Nevertheless, in deference to the liberal pleading standard and the fact that leave to amend may be granted up to, and even during, trial, the denial of Plaintiff’s Motion for Leave to Amend is without prejudice to bring such a request in the future as discovery continues to unfold.

 

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.

 

 

12. PLAINTIFF’S MOTION FOR AN ORDER COMPELLING AT&T WIRELESS TO COMPLY WITH DEPOSITION SUBPOENA FOR THE PRODUCTION OF DOCUMENTS

TENTATIVE RULING:

 

Plaintiff’s Motion for an Order Compelling AT&T to Comply with the Deposition Subpoena is DENIED.

 

Defendant John Cu has not formally opposed this motion. Instead, he filed an “objection.” While written objections are a valid countermeasure against a subpoena in some circumstances (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group, 2017) ¶ 8:603), it is a countermeasure that is only available to a non-party (Code Civ. Proc. § 1985.3(g)). Thus, defendant’s objections are not proper objections. Nevertheless, in the interest of reaching the merits of the instant matter, the Court construes the objections as an opposition.

 

The objection argues that the subpoena was not properly served on Defendants. The objection argues this on the basis that service was made on an address at “605 14th Street” instead of “505 14th Street.” On the evidence provided, none of the documents provided contain this error and Defendants did not provide a pinpoint citation to where this error may be found. As such, the “605” versus “505” service argument has no merit.

 

However, there is no proof of service provided to show that the subpoena at issue (as distinguished from any “Notice to Consumer”) was served on: (1) the non-party (in this case, AT&T Wireless), or (2) Defendants. Service on all parties to the lawsuit is required. Code Civ. Proc. § 2025.220(b). Personal service on the third-party target of the subpoena is required. Code Civ. Proc. § 2020.220(b)-(c). The proof of service provided here is blank, and the subpoena itself is not signed. Decl. of Ocampo (f: 12/21/17), Ex. I. While these documents do not generally need to be filed with the Court, they do become relevant on a motion to compel. Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group, 2017) ¶¶ 8:589.2-8:589.3, citing Code Civ. Proc. § 1985.3(b), also citing Cal. Rules of Court, rule 3.250(1)(4). Without proof that all statutory requirements have been met, the Court cannot grant the Motion for Order Compelling Compliance with Subpoena.

 

The Court declines to impose sanctions on the third-party target of the subpoena (AT&T Wireless) because AT&T is prevailing on this motion and because, without proof of service on AT&T, it is not clear that the Court even has jurisdiction to impose sanctions on AT&T. As to Defendants, they have been successful in challenging the Motion for Order Compelling Compliance with Subpoena. As such, there is no basis for sanctions. Code Civ. Proc. §§ 1987.2(a), 2020.030, and 2025.480.

 

However, while Plaintiff is not prevailing on the present motion, the Court does not find the motion to have been without substantial justification, and it would not be in the interest of justice to award sanctions against Plaintiff at this time. As such, the Court declines to issue sanctions regarding the present Motion for Order Compelling Compliance with Subpoena.

 

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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CIV538699     JAMES BURKES VS. ANDY T. MCBRYEAR, ET AL.

 

 

JAMES BURKES                           JESSICA A. NUDELMAN

ANDY MCBRYER                           DAVID SIDRAN

 

 

ANDY MCBRYER’S MOTION TO CONSOLIDATE CASE NO. CIV538699 WITH 16 CIV02787 WITH CASE NO 17-CIV-05396

TENTATIVE RULING:

 

Defendant’s Motion to Consolidate this Consolidated case with 17CIV05396 is DENIED WITHOUT PREJUDICE.  Moving parties did not file the notice of motion in Case No. 17CIV05396 as required by CRC 3.350(a)(1)(c) nor have they provided proof that it was served on all parties in compliance with CRC 3.350(a)(2)(B) and (C) and CCP §1005.    

 

Defendants have not complied with CRC 3.350(a) which requires that notice of a motion to consolidate must be filed in each case sought to be consolidated and served on all parties in all cases to be consolidated.  The rule further provides that a POS must be filed as part of the motion.  Here, the notice of motion was not filed in 17CIV05396 and moving parties have not provided any proof that it was served in compliance with the rule and CCP §1005.  

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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