August 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

 

Tuesday, August 15, 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-02999     VICTOR GONZALEZ vs. A&B PRODUCE, INC., et al.

 

 

VICTOR GONZALEZ                        G. LARISON WAY

A&B PRODUCE, INC.                      Stephen b. heath

 

 

DEFENDANT A&B PRODUCE, INC.’S MOTION TO COMPEL PLAINTIFF’S FURTHER WRITTEN DISCOVERY RESPONSES AND FOR IMPOSITION OF MONETARY SANCTIONS AGAINST PLAINTIFF AND HIS COUNSEL

TENTATIVE RULING:

 

Defendants A&B Produce, Inc. et. al.’s Motion to Compel Further Responses to Defendants’ first sets of Form Interrogatories, Special Interrogatories, Requests for Admission, and Requests for Production of Documents is GRANTED in its entirety. 

 

Substantively, the motion is unopposed.  Plaintiff’s Opposition merely argues Defendants’ meet and confer letter was sent only by email (not regular mail), and that Plaintiff’s counsel never received it.  Plaintiff’s counsel’s supporting declaration states Plaintiff “certainly would have complied” with the meet and confer letter, had he received it.  For all the reasons stated in Defendants’ moving papers, the responses to the discovery requests at issue are deficient.  Plaintiff shall serve further, code-compliant responses to each of the requests at issue, addressing each of the deficiencies raised in Defendants’ moving papers, by Aug. 31, 2017. 

 

Under the circumstances, given Plaintiff’s counsel’s representation he never received the meet and confer letter, the Court will exercise its discretion and deny the sanctions request.  The parties are expected to engage in better communication efforts going forward. 

 

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-00540      EMILY CHEN vs. RALSTON PROPERTY, LLC

 

 

EMILY CHEN                             PATRICK M. MACIAS

RALSTON PROPERTY, LLC                  ALLONN LEVY

 

 

Motion to compel further responses to form interrogatories SET ONE,

SPECIAL INTERROGATORIES, SET ONE AND FOR MONETARY SANCTIONS

TENTATIVE RULING:

 

Defendant’s motion to compel is moot as plaintiff has provided supplemental responses to the interrogatories at issue.  However, the request for sanctions is GRANTED pursuant to CCP §2030.300(d) as the supplemental responses were provided only after this motion was filed and plaintiff has not provided any facts to establish that she acted with substantial justification or that other circumstances make the imposition of sanctions unjust.  Plaintiff shall pay defendant $3,265.50 on or before September 1, 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

Line: 3

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

 

 

Dan GORSKY                             JENNIFER S. GROCK

SPECIAL LEARNING, INC.

KAREN CHUNG                            PRO PER

 

Motion to set aside default by karen chung

TENTATIVE RULING:

 

The Court GRANTS Defendant Karen Chung's ("Defendant") timely motion to set aside default as to herself only. (Code Civ. Proc. 473, subd. (b).)  The Court VACATES, sua sponte, the default court judgment as to Karen Chung entered on July 10, 2017 as the instant motion to set aside default was filed on June 28, 2017 and pending prior to entry of default judgment.  The Court DENIES Defendant's request for relief on behalf of Defendant Special Learning, Inc.

 

Relief from default must be granted where there is no showing of prejudice to the plaintiff and very slight evidence justifies a court in setting aside the default, unless inexcusable neglect is clear.  (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 696.) In its discretion, the Court finds that Defendant has sufficiently demonstrated that her failure to timely respond to the Complaint was based on excusable neglect or mistake.

 

Furthermore, "the policy of the law is to have every litigated case tried upon its merits, and it looks with disfavor upon a party, who, regardless of the merits of the case, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary." (Fasuyi, 167 Cal.App.4th at 696 (original quotations, citations omitted).) In this instance, Plaintiff's counsel affirmatively states that she learned of the instant motion on July 7, prior to the Court entering default judgment on July 10.  (Grock Dec., ¶ 2.).

 

Defendant is not a California licensed attorney and cannot represent Defendant Special Learning, Inc. (Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284, fn. 5.) Accordingly, the default entered against Defendant Special Learning, Inc. remains. 

 

Defendant Karen Chung shall file and serve her responsive pleading on or before August 31, 2017.

 

 



9:00

Line: 4

17-CIV-02641     FRANCISCO CARRASCAL vs. WILLIAM TURNER, JR.

 

 

FRANCISCO CARRASCAL                    Pro/per

WILLIAM TURNER, JR.                    BRIAN IRION

 

 

William Turner’s Demurrer to Plaintiff’s Complaint

TENTATIVE RULING:

 

The Demurrer by Defendant William Turner Jr. to the Complaint filed by Francisco Carrascal is SUSTAINED WITHOUT LEAVE TO AMEND.  The Objections to the Request for Judicial Notice are OVERRULED and the Request for Judicial Notice is GRANTED.

 

First, the allegation in Plaintiff’s complaint that he is not, and has not been, a licensed contract is a judicial admission the precludes all actions seeking compensation for services performed including the instant claims for mechanic’s lien, for fraudulent deceit, and for Unfair Business Practices.  (See Alastriste v. Cesar’s Exterior Design (2010) 183 Cal.App.4th 656, 665-666.)

 

Second, even if the judicial admission above did not bar Plaintiff’s claims, this court takes judicial notice of a prior judgment against Plaintiff in a small claims action in which Plaintiff alleged the same claims alleged here and finds that such judgment bars the instant action under the doctrines of res Judicata and Collateral Estoppel.  (Bailey v. Brewer (2011) 197 Cal.App.4th 781, 791.

 

Finally, since the claim for Mechanic’s lien is hereby dismissed, the mechanics lien filed in connection with the property commonly known as 2500 Rosewood Drive, San Bruno, CA 94066 is ordered EXPUNGED.  (Cal. Civil Code section 8490.)

 

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. 

 

 



9:00

Line: 5      

17-CIV-02998     AMANDA DOE vs. FRANCIS ROe

 

 

AMANDA DOE                             TODD K. DAVIS

FRANCIS roe                            Kevin K. Cholakian

 

 

Defendant’s Motion to strike first amended complaint

TENTATIVE RULING:

 

Defendant’s unopposed motion to strike the prayer for attorney’s fees is GRANTED.   Plaintiff does not allege any statutory or contractual basis for an award of attorney’s fees. 

 

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: 6

17-CIV-03188     COUNTY OF SAN MATEO SHERIFF CARLOS BOLANOS vs.

                    JONATHAN RAY RUBIE

 

 

COUNTY OF SAN MATEO SHERIFF CARLOS BOLANOS   david silberman

Jonathan ray rubie

 

 

Petitioner’s motion to seal records

TENTATIVE RULING:

 

Petitioner’s motion to seal “Exhibit A” attached to the declaration of David Silberman is GRANTED.  The information contained in Ex. A is private in nature and this privacy interest constitutes an overriding interest that overcomes the public right of access and supports sealing.  The proposed sealing is narrowly tailored and there is no less restrictive means to protect the privacy interest.  Absent sealing, the private information would be publicly available. 

 

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: 7 & 8

17-UDL-00408     PATRICIA PALMA vs. KIMBERLY CRISWELL, et al.

 

 

PATRICIA PALMA                         RUSSELL L. GOODROW

KIMBERLY CRISWELL                      MARK C. WATSON

 

 

7. DEFENDANT’S DEMURRER TO PLAINTIFF’S COMPLAINT

TENTATIVE RULING:

 

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

 

8. DEFENDANT’S MOTION TO STRIKE

TENTATIVE RULING:

 

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

 



9:00

Line: 9

17-UDL-00562     DEAN MICHAEL GRIDLEY vs. SUSAN REED

 

 

DEAN MICHAEL GRIDLEY                   Pro/PER

SUSAN REED                             BILL FORD

 

DEFENDANT SUSAN REED’S DEMURRER TO COMPLAINT - UNLAWFUL DETAINER

TENTATIVE RULING:

 

The Demurrer of Defendant Susan Reed (“Defendant”) to the Complaint of Plaintiff Dean Michael Gridley (“Plaintiff”) is DROPPED as moot in light of Plaintiff filing a First Amended Complaint on August 7, 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

Line: 10

CIV537691     AMBER LAUREL BAPTISTE VS. MICHAEL LEWIS GOGUEN

 

 

AMBER LAUREL BAPTISTE                  PATRICIA L. GLASER

MICHAEL LEWIS GOGUEN                   DIANE M. DOOLITTLE

 

 

MOTION FOR SUMMARY JUDGEMENT/ADJUDICATION OF ISSUES

TENTATIVE RULING:

 

This matter has been continued to September 22, 2017 at 9:00 a.m. in the law and motion department.

 



9:00

Line: 11

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

 

 

BLAISE DESCOLLONGES                    LAWRENCE JAMES LESS

JAMES BURKES                           JESSICA A. NUDLEMAN

 

 

DEFENDANT UNITED ROAD SERVICE, URS MIDWEST, AND ANDY T. MCBRYEAR’S MOTION FOR ORDER CONTESTING GOOD FAITH SETTLEMENT

TENTATIVE RULING:

 

Defendants URS MIDWEST INC.; UNITED ROAD SERVICE; and ANDY MCBRYEAR’s Motion Contesting Good Faith Settlement is GRANTED.  Applying the factors enumerated in Tech-Bilt v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, the Court finds that the settlement reached between Plaintiffs JAMES BURKES and BLAISE DESCOLLONGES is “so far out of the ballpark” as to make the settlement unreasonable.  Id. at 499-500; Code Civ. Proc. § 877.6.

 

The Supreme Court in Tech-Bilt held that the following factors must be taken into account in determining the good faith of a settlement pursuant to Code of Civil Procedure § 877.6:

 

(1)  A rough approximation of plaintiff’s total recovery and the settlor’s proportionate liability;

(2)  The amount paid in settlement;

(3)  The allocation of settlement proceeds among plaintiffs;

(4)  Recognition that a settlor should pay less in settlement than              he would if he were found liable after a trial;

  (5)  The financial conditions and insurance policy limits of the settling defendant(s);

(6)  The existence of collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling defendants;

(7)  This evaluation is to be made on the basis of information available at the time

of settlement.

 

“The party asserting the lack of good faith, who has the burden of proof on that issue, should be permitted to demonstrate, if he can, that the settlement is so far "out of the ballpark" in relation to these factors as to be inconsistent with the equitable objectives of the statute.  Such a demonstration would establish that the proposed settlement was not a ‘settlement made in good faith’ within the terms of section 877.6.”  Tech-Bilt, supra at 499-500. 

 

Applying the Tech-Bilt factors to this case, the medical specials alone are currently over $130,000 for Plaintiff Descollonges and over $120,000 for Plaintiff Burkes in his consolidated case.  Both Plaintiffs are making claims for lost wages, and it is not unreasonable that both the Descollonges and Burkes’ cases are potentially worth over $500,000.  Despite these large figures, Burkes proposes that he be released from any share of liability for the sum of $15,000, and that entirely paid by his insurance carrier. The amount of settlement appears to be grossly disproportionate to the claims being made in this case.

 

It appears to the court that a jury could conclude that Burkes was a significant cause of the accident.

 

The primary factor in favor of approving the settlement is that Burkes has offered his policy limit of $15,000 in settlement.  This infers to the court that he does not currently have significant financial resources from which he could satisfy a judgement against him.  Without more, this would be enough to find this settlement in good faith.  However, the fact that Burkes has a “chose in action” with a potential considerable value that would leave him in a financial condition to satisfy a judgment against him cuts against finding this settlement was made in good faith.

 

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: 12

CLJ446414     ADVANCE RESTAURANT FINANCE VS. JOO HEE KIM

 

 

ADVANCE RESTAURANTFINANCE, LLC          ANGELA A. VELEN

JOO HEE KIM

 

 

PETITIONER’S MOTION FOR ASSIGNMENT ORDER IN AID OF JUDGMENT PURSUANT TO CCP §708.510

TENTATIVE RULING:

 

Petitioner’s motion for an assignment order is DENIED WITHOUT PREJUDICE.  CCP §708.510(a) permits the court to order the assignment of a right to payment due or to become due. 

 

The judgment creditor describes the payments, at least in part, as commissions.  Whether commissions may be reached by an assignment order depends on whether Kim is an employee or a contractor.  This is because the Wage Garnishment Law (CCP §706.010 et seq.) provides that, except for an earnings withholding order for support, the earnings of an employee shall not be required to be withheld by the employer for payment of a debt by means of any judicial procedure other than pursuant to the Wage Garnishment Law.  CCP §706.020; California State Employees’ Assn. v State of California (1988) 198 Cal.App.3d 374, 377.  The term earnings is defined to mean compensation payable by an employer to an employee whether denominated as wages, salary, commission, bonus or otherwise.  CCP §706.011(b). 

Here, the Memorandum of Points and Authorities states Kim is receiving payments and commissions as a result of his employment.  There is no indication whether he is an employee or an independent contractor.  The Velen declaration states only that she is informed and believes that Kim is a real estate agent who receives payments and commissions, as such, traditional wage garnishment attempts would be futile.  She provides no facts from which the court could determine Kim’s status as employee or contractor. 

 

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 john l. grandsaert

Department 11

 

400 County Center, Redwood City

Courtroom 2D

 

Tuesday, August 15, 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) 261-5111 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

17-CIV-02669     RONG JEWETT, et al. vs. ORACLE CORPORATION

 

 

RONG JEWETT                            JAMES M. FINBERG

ORACLE CORPORATION

 

 

Complex Case Status Conference

TENTATIVE RULING:

 

The case is not at issue.  Complaint and summons are served.  No answers have been filed.  The matter is continued for 60 days to October 17, 2017 at 9:00 a.m. on the Presiding Judge Master Calendar for status.

 


 

 

 

 

 

 


POSTED:  3:00 PM

 

 

© 2017 Superior Court of San Mateo County