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.

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 In the Superior Court of the State of California

In and for the County of San Mateo

 

Law and Motion Calendar

Judge: Honorable Lisa A. novak

Department 13

 

400 County Center, Redwood City

Courtroom 2C

 

Tuesday, October 17, 2017

 

IF YOU INTEND TO APPEAR ON ANY CASE ON THIS CALENDAR YOU MUST DO THE FOLLOWING:

1. YOU MUST CALL (650) 261-5113 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.

 

N.B. Notifying CourtCall with your intent to appear is not an alternative to notifying the court.  

 

    Case                  Title / Nature of Case

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16-CIV-00133     MARIO YBONA, JR. vs. SUSANA BOTONES, et AL.

 

 

MARIO YBONA, JR.                       ANITA W. CHU

susana botones                         christopher w. rivera

 

 

PLAINTIFF’S MOTION TO COMPEL SHAW TRANSPORT INC.’S RESPONSES TO FORM INTERROGATORIES, REQUEST FOR ADMISSION, AND REQUEST FOR PRODUCTION OF DOCUMENTS

TENTATIVE RULING:

 

Plaintiffs MARIO YBONA, JR. and MARIAH YBONA’s Motion to Compel Discovery Responses from Defendant SHAW TRANSPORT, INC. is GRANTED TO THE EXTENT THAT DEFENDANT HAS NOT PROVIDED VERIFIED RESPONSES TO FIVE FORM INTERROGATORIES CLAIMING PRIVELEGE. 

 

Defendant contends in its Opposition that responses to Plaintiffs’ Form Interrogatories (Set One); Request for Production of Documents (Set One); and Request for Admissions (Set One) were served on September 29, 2017, nearly a year after the requests were served, and a month past the extended deadline of August 28, 2017 agreed to during the meet-and-confer process.  THE COURT ACCEPTS COUNSEL’S REPRESENTATION THAT ASIDE FROM THOSE OBJECTIONS, DEFENDANT HAS NOW PROVIDED CODE-COMPLIANT RESPONSES TO THE REQUES FOR FORM INTEROGTORIES, REQUEST FOR ADMISSIONS AND REQUEST FOR PRODUCTION OF DOCUMENTS.

 

Defendant argues that its extreme tardiness in serving responses was due to “mistake or inadvertence”, yet its counsel fails to explain what that “mistake or inadvertence” was in the opposing declaration.  NOT ONLY WAS DEFENDANT TARDY IN INITIALLY RESPONDING WHEN THE REQUESTS WERE SERVED IN 2016, BUT WAS AGAIN TARDY IS PROVIDING RESPONSES BEYOND THE DEADLINE OF 28, 2017.   Accordingly, Defendant’s request for relief from its waiver of objections is DENIED.  Defendant is ordered to serve full and complete, verified responses, without objections, TO THOSE INTERROGATORIES no later than October 27, 2017.

 

Plaintiffs’ request for monetary sanctions is GRANTED in the amount of $935.00.  Defendant is ordered to pay this amount no later than October 27, 2017. 

 



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16-CIV-00552     GABRIELA CANCHOLA, et al. vs. MATT FERGUSON, et al.

 

 

GABRIELA CANCHOLA                      ARASH KHORSANDI

MATT FERGUSON                          LANCE BURROW

 

 

PLAINTIFF’S MOTION TO BE RELIEVED AS COUNSEL

TENTATIVE RULING:

 

The Motion to be Relieved as Counsel of Record is denied for failure to establish that the motion was served on all parties in compliance with CCP §1005.  Service is short by one day.

 

 



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16-CIV-02945     PETER TU vs. TSAI-LUAN HO, et al.

 

 

PETER TU                               JEFFREY S. GOODFRIED

TSAI-LUAN HO                           JEFFREY G. HURON

 

 

DEFENDANT’S MOTION TO BE RELIEVED AS COUNSEL

TENTATIVE RULING:

 

Defendant’s counsel has not provided proof that all of the required forms were served in compliance with CRC 3.1362(d).  The moving papers include only the notice of motion and declaration.  Odyssey does not reflect the proposed order having been lodged with the court, nor is there any proof that it was served on Defendant or Plaintiff’s counsel. 

 

Should Defense counsel appear at the hearing and provide proof that the proposed order was served in compliance with CRC 3.1362(d), the motion will be granted. Absent such additional proof, the motion is DENIED.  

 

The Jones declaration provides a factual basis for withdrawal on the grounds that DEFENDANT’S refusal to communicate makes the representation impossible.  See Rule of Professional Conduct 3-700(C)(1)(d) permitting an attorney to seek permission to withdraw where the client’s conduct renders it unreasonably difficult for the member to carry out the employment effectively. 

 

To the extent PLAINTIFF argues he will be prejudiced if the motion is granted, he fails to establish any prejudice sufficient to deny the motion.   Trial is not set until February 28, 2018, and nothing in allowing counsel to withdraw will necessarily result in a continuance of that date, nor will it in any way impact PLAINTIFF’S ability to bring its motion for summary judgment.

 

If the tentative ruling is unopposed, the prevailing party shall file and submit a written order consistent with the court’s ruling as prescribed in CRC 3.1312.

 

 



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17-CIV-02347     JACQUELINE WENDLING vs. PESCADERO APARTMENTS, et al.

 

 

JACQUELINE WENDLING                    NIKOLAUS W. REED

PESCADERO APARTMENTS                   PRO/PER

 

 

M.H. PODELL COMPANY’S MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY AND REQUEST FOR SANCTIONS

TENTATIVE RULING:

 

Moving Party’s Motion to Compel Further Responses to Form Interrogatories IS DENIED. No 2.6, 4.1, 6.7 AND 8.7 and Special Interrogatory 15 is DENIED.  As to Form Interrogatory 2.6, the request specifically calls out for employer or self-employment information for 5 years – Plaintiff has provided said information and she cannot be forced or expected to go beyond the question posed if there is no other information to provide. AS TO FORM INTERROGATORY 4.1, PLAINTIFF RESPONDED THAT AT THE TIME OF THE INCIDENT SHE DID NOT HAVE MEDICAL COVERAGE.  THE FACT THAT SHE INCLUDED INFORMATION AS TO SUBSEQUENT COVERAGE FOR WHICH SHE WAS NOT OBLIGATED TO PROVIDE IN RESPONSE TO THAT QUESTION DOES NOT TRIGGER A RESPONSIBILITY TO PROVIDE MORE NON-RESPONSIVE INFORMATION.  HER RESPONSE TO FORM INTERROGATORY 6.7 APPEARS COMPLETE, AS DOES HER RESPONSE TO 8.7.  

As to Special Interrogatory 15, although the response provided may not be to Moving Party’s pleasure – Plaintiff has properly responded and Moving Party could use other discovery tools if they seek further information.

 

 THE MOTION TO COMPEL FURTHER RESPONSES TO THE REMAINING

 

Special Interrogatories (Set One), Nos. 2, 7, 17 and 28; and Requests for Production of Documents (Set One), Nos. 8, 9, 10, 17 and 18 is GRANTED. 

 

Plaintiff and/or Plaintiffs’ counsel have a responsibility and obligation to comply with the Discovery Act – Specifically the provisions of CCP § 2030.220, subds. (a) & (b) and further responses are warranted.  As it relates to the Request for Production of Documents, as part of her Responses, Plaintiff has already said she would produce those documents that are available to her (except for any privileged documents). Plaintiff must now produce the documents or in the alternative, amend her answers as she may see fit – and a privilege log should also be provided as part of the further responses if Plaintiff is truly claiming a privilege.

 

COMPLIANCE (which should include a privilege log if applicable) IS ORDERED within 14 calendar days after the date of entry of order related to this motion – or on any other date agreed to, in writing, by the parties.

 

The Moving Party’s request for sanctions is DENIED.  Moving Party’s Notice of Motion fails to comply with the provisions of CCP 2023.040 as it relates to the request for sanctions – as a result notice as to the request for sanctions is deficient.  Plaintiffs request for sanctions is also DENIED as Plaintiff has failed to provide sufficient facts that would warrant a finding that this motion was brought in bad faith, or that an order for sanctions against Moving Party would be appropriate.

 



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17-CIV-02881     THOMAS PACHE vs. ROSE BORG, et al.

 

 

THOMAS PACHE                           DANIEL SAVER

ROSE BORG                              PRO/PER

 

 

ROSE BORG’S HEARING ON DEMURRER

TENTATIVE RULING:

 

this matter is moot.  a first amended complaint was filed on october 10, 2017

 



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17-CIV-03641     BRANDON LAWRENCE vs. CALIFORNIA HIGHWAY PATROL, et al

 

 

BRANDON LAWRENCE                       THOMAS J. WALSH

CA HIGHWAY PATROL                      MICHELE S. INAN

 

 

KIYOSHI TAKIBANA’S MOTION FOR CHANGE OF VENUE

TENTATIVE RULING:

 

The Request for Judicial Notice by petitioner/cross-defendant Brandon Lawrence dba Sportscars Italiano (“Lawrence”) and cross-defendant Philip White (“White”) is granted.

 

The Motion for Change of Venue filed by cross-defendant/cross-complainant Kiyoshi Takihana (“Takihana”) is denied. 

 

 

The Request for Sanctions by Lawrence and White is denied.

 

The Court rules on the Objections to Evidence filed by Takei/BH Transportation as follows:

 

     Objection No. 1:    Overruled.

     Objection No. 2:    SUSTAINED EC 702, 751, HEARSAY

     Objection No. 3:    OVERRULED

     Objection No. 4:    Overruled.

     Objection No. 5:    Overruled.

 

Background.  The instant case began as a writ of mandate between petitioner Lawrence and respondent California Highway Patrol (“CHP”). After issuing and Order to Show Cause Why a Writ of Mandate Should Not Issue, the Court dismissed the Petition for Writ of Mandate and ordered the CHP to file an interpleader action.  The CHP filed an interpleader action on September 8, 2017 naming the following parties:

 

  • Brandon Lawrence dba Sportscars Italiano;
  • Philip White;
  • Akira Takei;
  • Ryuji Hasegawa (a subsequent amendment changed this name to Takahashi Hasegawa); and
  • Kiyoshi Takahani

 

Takahani, a resident of Japan, and the purported original owner of the vehicles now moves for a change of venue pursuant to CCP § 397 on two grounds: (1) that venue in San Mateo County is not proper, and (2) that venue in Orange County would be in the interest of justice and the convenience of witnesses.  Both arguments lack merit. 

Whether San Mateo County Is an Improper Venue.  The initial writ proceeding in this action was filed by Lawrence against the CHP.  Venue for a writ proceeding is proper where the cause of action arises, which is defined as where the complaining party is or would be injured by the state action at issue.  California State Parks Found. V. Sup. Ct. (Foothill/Eastern Transp. Corridor Agency) (2007) 150 Cal.App.4th 826, 835; Tharp v. Sup.Ct. (Jennings) (1982) 32 Cal.3d 496, 498; Lipari v. Department of Motor Vehicles (1993) 16 Cal.App.4th 667, 670.  Here, one of the vehicles was allegedly seized from Lawrence by the CHP in San Mateo County, such that venue for the writ proceeding was proper in San Mateo County.   

 

The general rule for venue in a civil action is that a defendant has a right to have his case tried in the county where he (or at least where some defendant) resides.  CCP § 395(a).  The parties named in the CHP’s interpleader action reside in the following counties:

 

  • Brandon Lawrence dba Sportscars Italiano—San Mateo County
  • Philip White—San Mateo County
  • Akira Takei—Contra Costa County
  • Ryuji Hasegawa—Japan; and
  • Kiyoshi Takahani—Japan. 

 

None of these counties are Orange County—the venue to which Takihana seeks to have this matter transferred.   Takihana is a resident of Japan such that venue as to him would be proper in any county.  CCP § 395(a). 

 

Whether Venue in Orange County Would Be in the Interest of Justice and Convenient for Witnesses.  A motion for change of venue may be brought on grounds that the convenience of witnesses and the ends of justice would be promoted by the change.  CCP § 397(c).  However, such a motion requires an extensive factual showing including things like names of witnesses, the content of their expected testimony, the reasons why the current forum would be inconvenient for those witnesses, and why the ends of justice would be achieved by the transfer.  Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2017) ¶ 3:576, quoting CCP § 397(c), citing Juneau v. Juneau (1941) 45 Cal.App.2d 14, 16.  NOBODY INVOLVED IN THIS LITIGATION LIVES IN ORANGE COUNTY, NOR IS THERE ANY EVIDENCE SUBMITTED IN SUPPORT OF THE MOTION DEMONSTRATING THAT ANY WITNESSES LIVE IN ORANGE COUNTY.   The Court does not find that Takihana has provided sufficient evidence to support a change of venue on these grounds. 

 

Costs and Attorney Fees.  Lawrence and White move for costs and attorney fees under CCP § 396b(b), and have given proper notice “in [their] papers.”  See Cacciaguidi v. Superior Court (1990) 226 Cal.App.3d 181, 187.  Upon consideration of the statutory factors, the Court declines to issue sanctions.  A PARTY BEING UNSUCESSFUL IN A MOTION SUCH AS THIS IS NOT A BASIS FOR IMPOSING A SANCTION, EVEN IF THE MOVING PARTY IS WRONG IN ITS INTERPRETATION OF THE LAW AND ITS APPLICABILITY TO THE FACTS.

 


 


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17-UDL-00633     JESSICA LIU vs. WILLIAM TAN, et al.

 

 

JESSICA LIU                            DANIEL BORNSTEIN

WILLIAM TAN                            PRO/PER

 

 

DEFENDANT’S HEARING ON DEMURRER

TENTATIVE RULING:

 

The general demurrer is sustained with leave to amend to allege facts to show that the property was sold in accordance with Civil Code §2924.

This unlawful detainer action follows a foreclosure on Defendant’s property, purchase by Deutsche Bank at a trustee’s sale, and then subsequent sale by said bank to Plaintiff herein.  California Code of Civil Procedure §1161a(b)(3) provides that a person who continues in possession of real property after service of a three-day notice to quit may be removed pursuant to the unlawful detainer procedure where the property has been sold in accordance with Civil Code §2924 under a power of sale contained in a deed of trust executed by such person and the title under the sale has been duly perfected.    Subsection (c) of CC 2924 states: 

A recital in the deed executed pursuant to the power of sale of compliance with all requirements of law regarding the mailing of copies of notices or the publication of a copy of the notice of default or the personal delivery of the copy of the notice of default or the posting of copies of the notice of sale or the publication of a copy thereof shall constitute prima facie evidence of compliance with these requirements and conclusive evidence thereof in favor of bona fide purchasers and encumbrancers for value and without notice.

Cal. Civ. Code § 2924 (West)

 

The Second Amended Complaint does not contain the aforementioned facts demonstrating that CC 2924 and in turn CCP 1161a(b)(3) have been complied with.  Plaintiff shall have an opportunity to amend to add that necessary information.

 

The demurrer is overruled on all other grounds. 

 

Plaintiff’s request for sanctions is denied as there is some merit to the Demurrer.

 

Plaintiff shall file a Third Amended Complaint on or before October 24, 2017.

 



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CIV518068     JANINE HERNANDEZ VS. ENTERPRISE HOLDINGS, INC., et al.

 

 

JANINE HERNANDEZ                       AARON MARKOWITZ

VANGUARD CAR RENTAL USA                DOUGLAS W. SULLIVAN

 

 

AUTONATION’S MOTION FOR SUMMARY JUDGMENT

TENTATIVE RULING:

 

This matter is moot.  plaintiff has dismissed her action.

 



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CIV521227     CARROLL CUSTOM HOMES VS. 138 ALMENDRAL LLC, ET AL.

 

 

CARROLL CUSTOM HOMES INC.              RICHARD M. KELLY

138 ALMENDRAL LLC                      E. DAVID MARKS

 

 

PLATE LINE FRAMERS, INC.’S MOTION FOR DETERMINATION OF GOOD FAITH SETTLEMENT

TENTATIVE RULING:

 

Cross-Defendants Legacy Roofing & Waterproofing, Inc. and Dutch Master, Inc.’s Request for Judicial Notice of the Sept. 10, 2014 and Oct. 24, 2014 Cross-Complaints is GRANTED.  Evid. Code Sect. 452(d).

 

Cross-Defendant and Cross-Complainant Plate Line Framers, Inc.’s (Plate Line) Motion for Determination of Good Faith Settlement is GRANTED.  Code Civ. Proc. Sect. 877.6 and Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499-500.

 

Although Cross-Defendants Legacy Roofing & Waterproofing and Dutch Master, Inc. argue otherwise, the Court finds the evidence sufficient to support a finding of good faith.     THE PARTIES CONTESTING THE FINDING OF GOOD FAITH HAVE NOT MET THEIR BURDEN OF DEMONSTRATING SUBSTANTIAL EVIDENCE THAT THE SETTLEMENT IS NOT IN GOOD FAITH.  MOREOVER, there is not any evidence or suggestion of collusion or fraud. 

 

 

THE MOVING PARTY HAS SUBMITTED IN ITS REPLY BRIEF A declaration of attorney Kam explaining the allocation of the $120,000 settlement funds ($10,202 for Stearman costs, and $109,798 for costs of repair, consisting of $89,443 for the exterior siding and carpentry repairs and $20,355 for Homeowners’ relocation costs).  The homeowners (the Lambs) estimated the repair costs for Plate Line’s work at $318,000, including supervision, permits, overhead and profit. (Sept. 20, 2017 Kam Decl. ¶7).  As of Oct. 2016, Plate Line’s expert assessed the claimed defects and determined the repair costs to be $78,258. (Oct. 10, 2017 Kam Decl., Ex. A.); see also Sept. 20, 2017 Kelley Decl.  The evidence sufficiently demonstrates that the $120,000 settlement represents a good faith estimate of Plate Line’s proportionate liability.  Given that the settlement in no way appears disproportionately low, Plate Line’s insurance policy limits and its financial condition do not control

 

A good faith settlement does not call for perfect apportionment; it requires a rough approximation of the settlor’s proportionate liability.  That test is satisfied here.  The opposing parties have not met their burden of establishing that the settlement is so “out of the ballpark” of Plate Line’s estimated proportionate liability as to be inconsistent with the equitable purposes of Section 877.6. 

 

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, THE MOVING PARTY shall 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 written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.

 

 



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CIV533619     MARK MIGDAL VS. BYRON CANNON, et al.

 

 

MARK MIGDAL                            RONALD J. COOK

MC ROOFING                             CHRISTOPHER J. OLSON

 

 

PLAINTIFF’S MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT

TENTATIVE RULING:

 

The Unopposed Motion for Leave to Amend is granted.

 

There is a policy in favor of permitting amendments (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920) and there is no indication that any party will suffer prejudice as a result of the amendment.  Plaintiff shall file the proposed Third Amended Complaint no later than October 21, 2017. 

 



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CIV536958     TIMOTHY CHEY VS. FACEBOOK, INC.

 

 

TIMOTHY CHEY                           AARON M. GLADSTEIN

FACEBOOK, INC.                         JULIE E. SCHWARTZ

 

 

DEFENDANT’S MOTION TO ENFORCE ORDER TO COMPEL AND FOR SANCTIONS

TENTATIVE RULING:

 

The Motion to Compel Compliance with the May 2, 2017, order is denied.

 

An order compelling a party to comply with an earlier order would have no greater force or effect than the original order. No discovery statute authorizes this motion. A second order directing Plaintiff to respond further accomplishes nothing. Under the discovery statutes, the remedy for disobeying an order compelling further responses to interrogatories is either an OSC in re contempt, or a motion for sanctions.

 

The Motion for Evidentiary Sanction is granted, in part.

 

During meet-and-confer, Plaintiff stated that he had no further responsive information, but then served multiple supplemental responses. Defendant’s motion does not identify any facts that Plaintiff has withheld, but instead argues that allegations in the complaint and some statements by Plaintiff suggest that further information exists. Defendant also contends that the interrogatory responses are inconsistent with allegations in the complaint. This does not compel the conclusion that Plaintiff is withholding information, since it is equally inferable that allegations in the complaint are untrue. Defendant acknowledges that it has remedies under Code of Civil Procedure section 128.7. (See Defendant’s Reply at 6 & 7.)

 

Because of Plaintiff’s practice of serving multiple supplemental responses, the Court orders that Plaintiff’s original and first through fourth supplemental responses are deemed to constitute all the knowledge that Plaintiff presently possesses. (See Plaintiff’s Declaration in Opposition at paragraphs 2 through 8.) The Court also orders that Plaintiff is precluded from offering at trial or in support of or opposition to any pretrial motion (including summary judgment) any facts that could have been stated in response to Special Interrogatories (Set One), numbers 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20, and 22, of which Plaintiff had knowledge but failed to include in his interrogatory responses.

 

Further, the Court orders that Plaintiff may not exercise his right to amend his responses without leave of court, as would otherwise be permitted under Code of Civil Procedure section 2030.310. Plaintiff must move for leave of court to amend his responses, explaining the reasons why such new or different information was not included in the present original or supplemental responses.

 

The Motion for Issue Sanctions is denied.

 

The Motion for a $20,000 Monetary Sanction is denied. The motion is largely unsuccessful, BUT FOR THE COURT IMPOSING AN EVIDENTIARY SANCTION.

 

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, Defendant shall 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 written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.

 


 

 

 

 


POSTED:  3:00 PM

 

 

© 2017 Superior Court of San Mateo County