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

 

Tuesday, January 16, 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

 

 

 

 

 

 

 

 

9:00

Line: 1

16-CIV-01430     THE ESTATE OF DIEGO GALINDO, et al. vs. BALLY TOTAL

                   FITNESS CORPORATION, et al.

 

 

THE ESTATE OF DIEGO GALINDO             MARK J. GERAGOS

BALLY TOTAL FITNESS CORP.              JILL COHOE

 

 

DEFENDANT’S MOTION FOR SUMMARY OF JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

TENTATIVE RULING:

 

The Motion of Defendant Bally Total Fitness Corporation (“Defendant”) for Summary Judgment, or in the alternative, Summary Adjudication, is CONTINUED to 9:00 a.m. on February 15, 2018 in the Law and Motion Department, for Plaintiffs to file and serve a memorandum of points and authorities in opposition that complies with the California Rules of Court.  Specifically, Plaintiff’s opposition exceeds the 20-page limit permitted under Rule 3.1113(d).  Moreover, Plaintiff’s opposition is typed in less than 12 size font, which in violation of Rule 2.104.

 

Plaintiffs’ opposition is to be filed and served by January 31, 2018.

 

Any reply by Defendant is to be filed and served by February 7, 2018.

 

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: 2

17-CIV-02514     JACKIE KIM-CALLO vs. JEFFREY MARTINEZ, et al.

 

 

JACKIE KIM-CALLO                       CRAIG S. MILLER

PEI WU                                 MICHAEL MENGARELLI

 

 

JEFFREY MARTINEZ, JOFREIGN MARTINEZ, JIN WU AND PEI WU’S MOTION FOR LEAVE TO FILE FIRST AMENDED CROSS-COMPLAINT

TENTATIVE RULING:

 

The motion for leave to file an amended cross-complaint is GRANTED.  Cross-complainants shall file and serve the amended cross-complaint by January 26, 2018.

 

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

17-CIV-02947    ALLAN TONIS, et al. vs. JEOVVANI BRAVO-ADREANO, et al.

 

 

ALLAN TONIS                            George W. Ellard

CITY OF SAN MATEO                      PRO/PER

 

 

CITY OF SAN MATEO’S HEARING ON DEMURRER

TENTATIVE RULING:

 

This matter is dropped from calendar as a dismissal as to City of San Mateo has been filed.

 

 



9:00

LineS: 4 - 7

17-CIV-03893   STATE FARM GENERAL INSURANCE COMPANY vs. ANDY S. MAR, et al.

 

 

STATE FARM GENERAL INSURANCE COMPANY    CURTIS L. METZGAR

ANDY MAR                               PRO/PER

 

 

4. ANDY MAR’S HEARING ON DEMURRER TO COMPLAINT BY PLAINTIFF STATE FARM GENERAL INSURANCE COMPANY FOR DECLARATORY RELIEF

TENTATIVE RULING:

 

In light of the Court’s order that this matter be stayed, Defendant Mar’s demurrer is off calendar.

 

 

5. ANDY MAR’S MOTION TO STAY ALL PROCEEDINGS

TENTATIVE RULING:

 

The motion to stay this action pending the resolution of the Underlying Action (CIV 537740) is granted. All matters in this action are stayed pending resolution of the Underlying Action or until this court orders, upon a showing of good cause, that the stay should be lifted.

 

In the Underlying Action, the question of whether Defendant Mar was acting in the course and scope of employment is relevant only to the issue of whether his employer, Defendant County of San Mateo, could be jointly and severally liable under respondeat superior. The issue of course and scope of employment does not affect Defendant Mar’s personal liability; it affects only whether another defendant (the County) will be sharing responsibility. Therefore, Defendant Mar is asserting that he was at all times acting within the scope of his employment.

 

In the Declaratory Relief action, Defendant Mar can prevail only if he is found not to have been acting within a business pursuit. As State Farm points out, the business pursuits exclusion is broader than an employment exclusion, which generally would include a course and scope limitation. (West American Ins. Co. v. California Mutual Ins. Co (1987) 195 Cal.App.3d 314.) If Defendant Mar admits that he was acting within the course and scope of employment (as he argues in the underlying action), then he essentially admits that he was acting within a business pursuit (occupation). In that instance, State Farm prevails against him in the Declaratory Relief action.

 

It is near impossible to see how Defendant Mar can act in his best interests in both actions simultaneously. Since the underlying action is set for trial on January 22, 2018, the present Declaratory Relief action should be stayed pending the outcome.

 

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. JOSE VERDUSCO’S JOINDER TO DEMURRER TO COMPLAINT BY STATE FARM GENERAL INSURNANCE COMPANY FOR DECLARATORY RELIEF

TENTATIVE RULING:

 

In light of the Court’s order that this matter be stayed, Defendant Mar’s demurrer is off calendar.

 

 

 

7. JOSE VERDUSCO’S JOINDER MOTION TO STAY ALL PROCEEDINGS

TENTATIVE RULING:

 

The motion to stay this action pending the resolution of the Underlying Action (CIV 537740) is granted. All matters in this action are stayed pending resolution of the Underlying Action or until this court orders, upon a showing of good cause, that the stay should be lifted.

 

In the Underlying Action, the question of whether Defendant Mar was acting in the course and scope of employment is relevant only to the issue of whether his employer, Defendant County of San Mateo, could be jointly and severally liable under respondeat superior. The issue of course and scope of employment does not affect Defendant Mar’s personal liability; it affects only whether another defendant (the County) will be sharing responsibility. Therefore, Defendant Mar is asserting that he was at all times acting within the scope of his employment.

 

In the Declaratory Relief action, Defendant Mar can prevail only if he is found not to have been acting within a business pursuit. As State Farm points out, the business pursuits exclusion is broader than an employment exclusion, which generally would include a course and scope limitation. (West American Ins. Co. v. California Mutual Ins. Co (1987) 195 Cal.App.3d 314.) If Defendant Mar admits that he was acting within the course and scope of employment (as he argues in the underlying action), then he essentially admits that he was acting within a business pursuit (occupation). In that instance, State Farm prevails against him in the Declaratory Relief action.

 

It is near impossible to see how Defendant Mar can act in his best interests in both actions simultaneously. Since the underlying action is set for trial on January 22, 2018, the present Declaratory Relief action should be stayed pending the outcome.

 

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

17-CIV-04525     MONICA TISCORNIA, et al. vs. E.A. DAVIDOVITS & CO.,

                   INC., et al.

 

 

TRISHA SEDILLO                         LORI J. CONSTANZO

DAVIDOVITS & CO., INC.                 KURT WILSON

 

 

E.A. DAVIDOVITS & CO., INC. AND CRAIG HOLDREN’S MOTION TO COMPEL PRODUCTION OF NON-REDACTED DOCUMENTS AND MONETARY SANCTIONS

TENTATIVE RULING:

 

Defendants E.A. Davidovits & Co., Inc.’s and Craig Holdren’s (Defendants) Motion to Compel Production of Non-Redacted Documents is OFF CALENDAR in light of defense counsel’s representation the case has settled, and that the parties are preparing dismissal paperwork.  

 



9:00

Line: 9

17-CIV-04936     JANE DOE #1 vs. MANUEL SEDILLO-MESSER, et al.

 

 

JANE DOE #1                            Dek Ketchum

COUNTY OF SAN MATEO                    DAVID LEVY

CORBETT GROUP HOMES                    ARTHUR CURLEY

 

PLAINTIFF’S MOTION TO CONSOLIDATE ACTIONS

TENTATIVE RULING:

 

Plaintiff JANE DOE #1’s Motion to Consolidate is GRANTED pursuant to Code Civ. Proc. § 1048(a).  Case No. CIV 534203 and Case No. 17-CIV-04936 are hereby consolidated; the lead case will be CIV 534203.  

 

The main considerations when ruling on a motion to consolidate are: (1) complexity, i.e., whether joining the actions involved would make the trial too confusing or complex for a jury; (2) prejudice, i.e., whether consolidation would adversely affect the rights of any party; and (3) timeliness of the motion.  Weil & Brown, supra, at § 12:363.

 

Jane Doe #1 and Jane Doe #2’s cases clearly involve significant common issues of fact and law such that consolidation would tend to avoid unnecessary costs and delay.  The County makes no strong argument in its opposition, even conceding that consolidation and discovery coordination would lead to cost and time savings.  As for Defendant CORBETT, while it is true that this party is new to this matter and was not involved in Jane Doe #2’s ongoing case, there is no requirement that all of the parties need to be identical in both parties in order for consolidation to occur.  Jud Whitehead Heater Co. v. Obler (1952) 111 Cal.App.2d 861, 867.  Any possible confusion between the two group home Defendants at trial may be addressed by specific jury instructions.  The prejudice to Corbett is far outweighed by the prejudice to the Plaintiffs if they should have to endure two separate trials on many of the same issues. 

 

Furthermore, it appears that judicial economy and efficiency would be furthered if the cases were to be consolidated.

 

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.



9:00

Line: 10

CIV504868     BRENDA CARRETO VS. ENMA CARRETO BRAVO

 

 

BRENDA CARRETO                         Pro/PER

ENMA CARRETO BRAVO                     PRO/PER

 

 

PLAINTIFF’S MOTION FOR ORDER FOR WHY SALE OF DWELLING SHOULD NOT BE ISSUED

TENTATIVE RULING:

 

This matter is continued to February 2, 2018 at 9:00 a.m. in the Law and Motion Department so that the motion to set aside the default judgment, scheduled for January 23, 2018, can be heard first

 

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: 11

CIV534203     JONATHAN MCDOUGALL VS. MANUEL SEDILLO, ET AL.

 

 

JANE DOE #2                            TODD P. EMANUEL

COUNTY OF SAN MATEO                    DAVID LEVY

 

 

PLAINTIFF’S MOTION TO CONSOLIDATE WITH CASE# 17CIV04936

TENTATIVE RULING:

 

Plaintiff in 17-CIV-04936 JANE DOE #1’s Motion to Consolidate is GRANTED pursuant to Code Civ. Proc. § 1048(a).  Case No. CIV 534203 and Case No. 17-CIV-04936 are hereby consolidated; the lead case will be CIV 534203.  

 

The main considerations when ruling on a motion to consolidate are: (1) complexity, i.e., whether joining the actions involved would make the trial too confusing or complex for a jury; (2) prejudice, i.e., whether consolidation would adversely affect the rights of any party; and (3) timeliness of the motion.  Weil & Brown, supra, at § 12:363.

 

Jane Doe #1 and Jane Doe #2’s cases clearly involve significant common issues of fact and law such that consolidation would tend to avoid unnecessary costs and delay.  The County makes no strong argument in its opposition, even conceding that consolidation and discovery coordination would lead to cost and time savings.  As for Defendant CORBETT, while it is true that this party is new to this matter and was not involved in Jane Doe #2’s ongoing case, there is no requirement that all of the parties need to be identical in both parties in order for consolidation to occur.  Jud Whitehead Heater Co. v. Obler (1952) 111 Cal.App.2d 861, 867.  Any possible confusion between the two group home Defendants at trial may be addressed by specific jury instructions.  The prejudice to Corbett is far outweighed by the prejudice to the Plaintiffs if they should have to endure two separate trials on many of the same issues. 

 

Furthermore, it appears that judicial economy and efficiency would be furthered if the cases were to be consolidated.

 

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.



9:00

Line: 12

CIV537812     MESROP KHACHTRAIAN VS. MICHAEL CRAUSE

 

 

MESROP KHACHATRIAN                     MARY DER-PARSEGHIAN

MICHAEL CRAUSE                         ALBERT K. MARTIN

 

 

MICHAEL KRAUSE’S MOTION FOR LEAVE TO AMEND PLEADINGS

TENTATIVE RULING:

 

This matter is dropped from calendar as the matter has been settled.

 

 



9:00

Line: 13

CLJ535372     LVNV FUNDING LLC VS. CRYSTAL HOWELL

 

 

LVNV FUNDING LLC                       WILLIAM A. MARK

CRYSTAL HOWELL                         PrO/PER

 

 

PLAINTIFF’S MOTION FOR JUDGMENT ON THE PLEADINGS

TENTATIVE RULING:

 

The 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 $1,073.64 principle PLUS $482 in 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.

 

 


 

 

 

 

 


POSTED:  3:00 PM

 

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