June 24, 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, June 22, 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-02525     JENNIFER GRIMALDI vs. AMS RELOCATION, INC., et al.

 

 

JENNIFER GRIMALDI                      DANIEL L. FEDER

ams RELOCATION, INC.                   KELLY S. KENNY

 

 

1. MOTION TO STIKE

TENTATIVE RULING:

 

Defendant AMS Relocation, Inc.’s Motion to Strike the punitive damages allegations in Plaintiff Jennifer Grimaldi’s First Amended Complaint (FAC) is GRANTED WITH LEAVE TO AMEND.  Punitive damages may not be pled generally, but must be pled with specificity.  Brousseau v. Jarret (1977) 73 Cal.App.3d 864, 872.  Not every case of alleged employment discrimination and/or wrongful termination supports a claim for punitive damages, which requires “clear and convincing evidence” that a defendant is guilty of “oppression, fraud, or malice.”  Civil Code Sect. 3294(a).  Both “malice” and “oppression” have been construed to require a heightened showing of “despicable conduct.” 

 

The motion is granted so that plaintiff may allege more specific underlying facts constituting despicable conduct.

 

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, Defendant 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.

 

 

2. HEARING ON DEMURRER

TENTATIVE RULING:

 

Defendant AMS Relocation, Inc.’s Demurrer to Plaintiff Jennifer Grimaldi’s First Amended Complaint (FAC) is SUSTAINED WITH LEAVE TO AMEND as to all asserted causes of action. 

 

The FAC alleges Plaintiff, in May 2015, took leave from her employment with Defendant to undergo surgery to remove a benign brain tumor.  FAC ¶¶ 20-23.  It alleges that on Sept. 10, 2015, following several months of recuperation, Plaintiff provided Defendant with a doctor’s note stating Plaintiff “may go back to work 9/14” (FAC, Ex. 1).  As alleged, when Plaintiff attempted to returned to work on Sept. 14, Defendant told her she needed to provide a medical release form from the disability office.  FAC ¶ 34.  The FAC generally alleges Plaintiff was confused and frustrated between roughly Sept. 14 and November 2015 regarding exactly what she needed to provide in order to return to work.  She alleges Defendant was unclear and unhelpful in this regard, by first telling her to obtain a form from the disability office, and never explaining what specific form was required.  But by Plaintiff’s own allegations, by November 4, 2015, still several weeks before her termination, Defendant told her it needed a doctor’s note that both approved her return to work and stated any applicable restrictions.  FAC ¶ 53.  Plaintiff alleges she told Defendant numerous times that she had no restrictions regarding returning to work, but does not allege she ever provided a doctor’s note to that effect.  There is no allegation she ever asked her doctor for a note addressing the restriction issue, even after Defendant’s Nov. 4, 2015 email stating Plaintiff must provide a doctor’s note addressing the restriction issue no later than Nov. 20, 2015.  Id.  Plaintiff also alleges that on Oct. 8, 2015, she told Defendant her doctor had extended her disability leave to Dec. 1, 2015, but does not allege she provided Defendant with any doctor’s note to that effect.  FAC ¶ 53.

 

A demurrer was sustained with leave to amend as to plaintiff’s original complaint.  The court stated that the complaint was silent as to whether plaintiff provided appropriate written medical releases before she was terminated.  The court also pointed out the complaint never stated plaintiff’s job title or job responsibilities, nor attached all relevant doctor’s notes.  These deficiencies were not corrected in the FAC. 

 

Further, as for the Second Cause of Action for failure to provide a reasonable accommodation and the Third Cause of Action for failure to engage, the FAC does not allege Plaintiff’s job title or her job responsibilities, nor does it allege Plaintiff ever requested any accommodation. 

 

In addition, as to the Fourth Cause of Action for retaliation, Govt. Code Sect. 12940(h) makes it unlawful for an employer to discharge any person “… because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.”  The FAC does not appear to allege Plaintiff voiced opposition to any discrimination or any practice forbidden under the statute, or that Plaintiff “filed a complaint, testified, or assisted in any proceeding under this part.”  Thus the allegations are unclear as to how Defendant allegedly retaliated against Plaintiff under Sect. 12940(h).   

 

As to the Seventh Cause of Action for intentional infliction of emotional distress, this tort requires “outrageous” conduct committed with the intent to inflict mental suffering.  State Rubbish Collectors Assn v. Siliznoff (1952) 38 Cal.2d 330; CACI 1600-1604.  Outrageous conduct means acts beyond all bounds of decency.  Cervantez v. J.C. Penney Co. (1979) 24 Cal.3d 579, 593.  Intentional or reckless conduct is conduct “especially calculated to cause” severe emotional distress.  Coon v. Joseph (1987) 192 Cal.App.3d 1269, 1273.  The factual allegations here cannot be characterized as rising to this level.

 

The amended complaint shall be filed and served on or before July 7, 2017.

 

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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16-UDL-00076     CAPITAL ONE, N.A. vs. OSCAR BRAUN, et al.

 

 

CAPITAL ONE, N.A.                      ADAM N. BARASCH

OSCAR BRAUN                            DAVID G. FINKELSTEIN

 

 

MOTION TO BE RELIVED AS COUNSEL

TENTATIVE RULING:

 

Mark Bender of the Office of Finkelstein Bender & Fujii’s motion to be relieved as counsel of record is moot.  On June 2, 2017 each defendant filed a substitution of attorney indicating that they are now represented by July M. Wei of the Law Offices of Peter N. Brewer. 

 

 



 

9:00

Line: 4

17-CIV-00572     EL CAMINO MOTORS, LLC vs. VALLI CONSTRUCTION, INC.,

                   et al.

 

 

EL CAMINO MOTORS, LLC                  DARREN S. ENENSTEIN

VALLI CONSTRUCTION, INC.               EDWARD R. HUGUENIN

 

 

HEARING ON DEMURRER

TENTATIVE RULING:

 

The Demurrer of Defendant Valli Construction, Inc. (“Defendant”) to the First Amended Complaint is CONTINUED to July 20, 2017 at 9:00 a.m. in the Law and Motion Department.  Defendant failed to file a declaration as required by Code of Civil Procedure section 430.41(a)(3) showing 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.  C.C.P. § 430.41(a) provides “If an amended complaint…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.”  No declaration has been filed with this demurrer.

 

Defendant is 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 Defendant fails to file and serve a declaration demonstrating compliance with the requirements of Section 430.41, the court is inclined to strike the demurrer as procedurally improper.

 



 

9:00

Line: 5

17-CIV-01114     SAN MATEO COUNTY TRANSIT DISTRICT vs. M. & N.

                   SCHMELZER, LLC, et al.

 

 

SAN MATEO COUNTY TRANSIT DISTRICT       MICHAEL B. MCNAUGHTON

BIG 5 CORP.                            PRO/PER

 

 

MOTION FOR ORDER OF POSSESSION

TENTATIVE RULING:

 

The Motion for Prejudgment Possession is GRANTED.  Plaintiff has provided evidence sufficient to establish that it is entitled to take the property by eminent domain and that it has deposited the amount of probable compensation with the State Treasurer. 

 

To the extent plaintiff asks the court to order that a writ of assistance may be issued ex parte, it provides no authority for this.  If plaintiff believes it is entitled to this relief, it may make the appropriate application when the need arises.

 

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 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.

 



 

9:00

Line: 6

17-CIV-01115     SAN MATEO COUNTY TRANSIT DISTRICT vs. SANDRA WEIL, et

                     al.

 

 

SAN MATEO COUNTY TRANSIT DISTRICT       MICHAEL B. MCNAUGHTON

JENS CORPORATION                       BARTON G. HECHTMAN

 

 

MOTION FOR ORDER OF POSSESSION

TENTATIVE RULING:

 

The Motion for Prejudgment Possession is GRANTED.  Plaintiff has provided evidence sufficient to establish that it is entitled to take the property by eminent domain and that it has deposited the amount of probable compensation with the State Treasurer. 

 

To the extent plaintiff asks the court to order that a writ of assistance may be issued ex parte, it provides no authority for this.  If plaintiff believes it is entitled to this relief, it may make the appropriate application when the need arises.

 

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 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.

 



 

9:00

Line: 7

CIV516995     DONNASUE JACOBI VS. RAMIRO CHAVEZ

 

 

DONNASUE JACOBI                        MERRILL G. EMERICK

RAMIRO CHAVEZ                          KELLY M. KERR

 

 

MOTION TO COMPEL SUBSTANTIVE AND VERIFIED DISCOVERY RESPONSES

TENTATIVE RULING:

 

Plaintiff has indicated that discovery responses have been provided and, therefore, Defendant’s motion to compel should be moot.  If thus is the case, neither party shall appear and the matter will be dropped from calendar.  If this is not the case, both parties shall APPEAR.

 



 

9:00

Line: 8

CIV535307     SEPIDEH SAEEDI VS. PAYAM P. ABOLMOLUKI, ET AL.

 

 

SEPIDEH SAEEDI                         RONDA BALDWIN-KENNEDY

PAYAM P. ABOLMOLUKI                    PrO/PER

 

 

MOTION TO BE RELIEVED AS COUNSEL

TENTATIVE RULING:

 

Ronda Baldwin-Kennedy’s Motion to be Relieved as Counsel of Record is DENIED for failure to provide proof that it was served on plaintiff and all other parties who have appeared in the action as required by CRC 3.1362(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.

 



 

 

 

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, June 22, 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

CIV536403     STATE FARM GENERAL INSURANCE COMPANY VS. EZ-FLO

                  INTERNATIONAL, INC.

 

 

STATE FARM GENERAL INSURANCE COMPANY    MAURA WALSH OCHOA

EZ-FLO INTERNATIONAL, INC.              KEITH E. SMITH

 

 

Motion to Continue Trial Date AND MANDATORY SETTLEMENT CONFERENCE

TENTATIVE RULING:

 

Plaintiff’s motion to continue trial date is GRANTED. This matter is continued to October 23, 2017 at 9:00 a.m. for trial. The mandatory settlement conference is scheduled for October 11, 2017 at 1:30 p.m. All pre-trial deadlines shall be based on the new trial date.

 

 



 

 

 

 

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, June 22, 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-01778     KEVIN BEUCKLAERE vs. DONALD CARMIGNAN

 

KEVIN BEUCKLAERE                       BYRON BENJAMIN KILGORE

DONALD CARMIGNANI

 

 

TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION

TENTATIVE RULING:

 

Appear.  There is no proof of service of either the complaint or the OSC and no opposition on file.

 



2:00

Line: 2

17-SCS-00040     EVARIZA SERRANO, et al. vs.  BRENDA LEUS

 

 

ANNA ROSE CABRERA                      Pro/per

BRENDA LEUS                            Pro/per

 

 

Petition for writ of mandate

TENTATIVE RULING:

 

Appear.

 


 

 

 


POSTED:  3:00 PM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

© 2017 Superior Court of San Mateo County