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

 

Special Set Calendar

Judge: Honorable JOSEPH C. SCOTT

Department 25

 

400 County Center, Redwood City

Courtroom 2G

 

Tuesday, June 20, 2017

 

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.

 

N.B. 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-01923     MARY E. MOHOROVICH vs. KEVIN J. KUHLOW, et al.

 

 

KEVIN J. KUHLOW                        NATHAN E. SMITH

MARY E. MOHOROVICH                     DAVID H.S. COMMINS

 

 

1. MOTION TO COMPEL UNREDACTION OF LPL DOCUMENTS RELATING TO KUHLOW PERSONAL FILE

TENTATIVE RULING:

 

Plaintiff’s Motion to Compel Unredacting of Kuhlow Personnel File is GRANTED. Defendant shall unredact all of the following information from Mr. Kuhlow’s personnel file: names, phone numbers, addresses, and email addresses of all of Kuhlow’s co-workers, subordinates, assistants, those who shared offices, those who split commissions with Kuhlow, and those LPL customers who made complaints against him. Defendant shall NOT unredact any person’s social security number, date of birth, drivers’ license number or biometric data.

 

Defendant shall unredact all information related to Mr. Kuhlow’s personal issues, including criminal convictions and financial troubles, including his credit score, bankruptcy information, information on other lawsuits, claims and complaints against him, terminations from other jobs, and bank account information, including account numbers both for personal accounts, as well as the accounts of Peninsula Wealth Management Group and Peninsula Advisors.

 

Plaintiff’s Motion to Compel Unredaction of LPL Documents Relating to Drip Drop is GRANTED, including the names of the other LPL clients who invested and their attorneys and documents about Drip Drop’s financial condition. The same restrictions with regard to identification of persons above shall apply.

 

The Court finds that the above information is relevant to the Plaintiff’s claims and is reasonably calculated to lead to the discovery of admissible evidence. [CCP sec. 2017.010].

 

requests for sanctions are denied.

 

Defendant shall provide a verified responses, based on the ruling above, no later than July 20, 2017.

 

Moving 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 Joseph C. Scott, Department 25.

 

2. MOTION TO COMPEL UNREDACTED OF LPL DOCUMENTS RELATING TO DRIP DROP

TENTATIVE RULING:

 

Plaintiff’s Motion to Compel Unredaction of LPL Documents Relating to Drip Drop is GRANTED, including the names of the other LPL clients who invested and their attorneys and documents about Drip Drop’s financial condition. The same restrictions with regard to identification of persons above shall apply.

 

The Court finds that the above information is relevant to the Plaintiff’s claims and is reasonably calculated to lead to the discovery of admissible evidence. [CCP sec. 2017.010].

 

 

requests for sanctions are denied.

 

 

Defendant shall provide a verified responses, based on the ruling above, no later than July 20, 2017.

 

Moving 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 Joseph C. Scott, Department 25.

 

 



 

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16-CIV-02437     EAMONN DUNPHY vs. KIRSHNER & SCHMIDT, INC., et al.

 

 

EAMONN DUNPHY                          GRANT H. BAKER

OLD REPUBLIC SURETY COMPANY             CARLOS E. SOSA

 

 

MOTION TO DEPOSIT

TENTATIVE RULING:

 

The unopposed Motion to Deposit, to Discharge, for a Restraining Order, and for Attorney’s Fees and Costs by Defendant Old Republic Surety Company (Old Republic) is GRANTED.  Code Civ. Proc. Sect. 386 et. al. provides the authority for Old Republic’s Interpleader pertaining to Bond No. W150227218, issued on behalf of Kirshner & Schmidt, Inc. dba Eco Friendly Remodeling.  Old Republic shall deposit $13,000 with the Court, based on the $15,000 bond minus $2,000 awarded to Old Republic for its attorney’s fees and costs per Code Civ. Proc. Sect. 386.6.  Upon the deposit of the funds, Old Republic shall be discharged from liability and dismissed from the action.  [Code Civ. Proc. Sect. 386.5].  All claimants herein shall thereafter be restrained from instituting or prosecuting any claim against Old Republic with respect to the bond at issue. [ Code Civ. Proc. Sect. 386(f)]. 

 

Moving 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 Joseph C. Scott, Department 25.

 



 

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16-CIV-02957     246 ATHERTON AVENUE LLC vs. TRAIS FLUORS LLC, et al.

 

 

246 ATHERTON AVENUE LLC                H. MICHAEL CLYDE

TRAIS FLOURS LLC                       LAWRENCE E. BUTLER

 

 

4. MOTION RE: FOR JUDGMENT ON PLEADINGS PARTIAL JUDGMENT ON PLEADINGS

TENTATIVE RULING:

 

The Motion of Defendant Trais Fluors LLC (“Trais”) for Partial Judgment on Pleadings is ruled upon as follows: 

 

(1) TRAIS’ REQUEST FOR JUDICIAL NOTICE

 

Central to this motion is whether the court may properly take judicial notice of the Operating Agreement for Plaintiff 246 Atherton Avenue LLC (“246”). The Operating Agreement is not attached to the Complaint, but Trais requests that the court take judicial notice of facts in the Operating Agreement based on Evidence Code section 452(h).  Evidence Code section 452(h) provides that the court may take judicial notice of facts and proposition that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.  In Scott v. JPMorgan Chase Bank (2013) 214 Cal.App.4th 743, the Court of Appeal affirmed the trial court’s judicial notice of a purchase and assumption agreement between JP Morgan and the FDIC.  The Court of Appeal held that judicial notice was proper under either Evidence Code section 452(c) or section 452(h).  Although the plaintiff in Scott objected to taking judicial notice of the factual matters contained in the agreement, the Court of Appeal held that “[w]here, as here, judicial notice is requested of a legally operative document—like a contract—the court may take notice not only of the fact of the document and its recording or publication, but also facts that clearly derive from its legal effect.”  (Id. at 754, citing Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265.)  Moreover, the Scott court found that “whether the fact derives from the legal effect of a document or from a statement within the document, the fact may be judicially noticed where, as here, the fact is not reasonably subject to dispute.”  (Id.) 

 

In opposition, 246 and Jawad cite to cases in which courts have taken judicial notice of documents, but not the truth of the matters asserted therein.  (See Yvanova v. New Century Mortgage Corp. (2016) 198 Cal.App.4th 246; see also Glaski v. Bank of America N.A. (2013) 218 Cal.App.4th 1079, 1102.)  However, these cases appear distinguishable because the matters for which judicial notice were requested, were in dispute.

 

In this case, none of the parties appear to dispute the validity of the Operating Agreement, nor do they dispute the facts in the Operating Agreement of which Trais is requesting judicial notice, namely that: (1) the members of 246 are Mohammad Mortazavi and Trais, and (2) the section of the Operating Agreement that addresses distribution to its members.  Thus, based on Evidence Code section 452(h) and the Scott holding, the court GRANTS Trais’ request for judicial notice.

 

(2) TRAIS’ MOTION FOR JUDGMENT ON THE PLEADINGS

 

With that in mind, the court finds that 246 fails to allege facts sufficient to support a claim for interpleader.  (See C.C.P. sec. 438(d).) 

 

“Any person, firm, corporation, association or other entity against whom double or multiple claims are made, or may be made, by two or more persons which are such that they may give rise to double or multiple liability, may bring an action against the claimants to compel them to interplead and litigate their several claims.”  (C.C.P. § 386(b).)  The purpose of an interpleader is to prevent multiplicity of suits and double vexation.  (City of Morgan Hill v. Brown (1999) 71 Cal.App.4th 1114, 1125-1126.)  The threat of double vexation must arise from a valid threat, and cannot be based on suspicion alone.  (Id.; see also WestAmerica Bank v. City of Berkeley (2011) 201 Cal. App. 4th 598, 608.)  “If the claims do not relate to the same thing, debt, or duty, then interpleader is improper.”  (Id. at 1123.) 

 

The City of Morgan Hill involved a complaint in interpleader filed by the City of Morgan Hill over payment of legal fees owed by the City.  Both the law firm of Brown, Pistone, et al., and attorney Margaret Seltzer, a former shareholder in the firm, claimed to be entitled to payment of the legal fees.  (City of Morgan Hill, supra, 71 Cal.App.4th at 1118.)  The City deposited the fees in court, and the trial court discharged it from the litigation.  (Id.)  The law firm then moved for summary judgment arguing that the firm was entitled to the fees based on the contingency fee agreement between the firm and the City, and that any compensation to Seltzer was governed by agreements between the firm and Seltzer.  (Id.)  The trial court granted summary judgment, and the Court of Appeal affirmed.  (Id.)  The Court of Appeal found that the firm and Seltzer assert the right to different things, debts or duties owed from different obligors.  (Id. at 1123.)  The debt claimed by the firm is the fees for which the obligor is the City.  (Id.)  The debt claimed by Seltzer is compensation under the firm’s internal agreements for which the obligor is the firm. (Id.)  The fact that the amount owed Seltzer under the agreement with the firm may be partly based on the fees owed from the City, did not give Seltzer the right to ignore these agreements and seek payment directly from the City.  (Id. at 1123-1126.) 

 

The court in City of Morgan Hill recognized important policy reasons for this result.  (Id. at 1125.)  “First, allowing interpleader in these circumstances would constitute a form of prejudgment attachment without the protections generally afforded those subject to that provisional remedy.”  (Id.)  Second, the purpose of interpleader is to prevent a multiplicity of suits and double vexation.  (Id.)  The City was not faced with a valid threat of double vexation though, as the City had no agreement with Seltzer.  (Id. at 1126.)  Third, the unusual circumstances suggested that the interpleader remedy was not being used solely as a means to protect the stakeholder, and that the City’s decision to file the interpleader likely stemmed from its continuing relationship with Seltzer as Seltzer continued to retain the City as her client after leaving the firm.  (Id.) 

 

In this case, 246 has interpleaded the funds claiming that it cannot determine whether to distribute the proceeds to Trais or Jawad. The Complaint alleges that Trais and Jawad each claim to be entitled to the remaining proceeds.  (See Comp. ¶ 11.)  However, Mortazavi and Trais are the only members of 246, and under the Operating Agreement, the proceeds are to be distributed to Mortazavi and Trais.  (See Comp. ¶ 1; Trais’ Request for Judicial Notice.)  Similar to the City of Morgan Hill, supra at 1123, it appears that Trais’ and Jawad’s claims arise with respect to different factual scenarios or duties.  Specifically, Trais seeks the proceeds from 246 based on the Operating Agreement, whereas Jawad’s claim is based on his entitlement to the proceeds once distributed to Trais.  As such, 246 has not alleged facts sufficient to support an interpleader claim.

 

Indeed, 246 makes a different argument in opposition to this motion, claiming that it interpleaded the funds because it could not determine whether to pay on Jawad or his children on behalf of Trais.  (See 246’s Opposition, 7:4-7 [“On its face, the Complaint admits that TF [Trais] is a member of 246. [Complaint at ¶ 1].  The point that Jawad’s children have failed [sic] appreciate since the outset of this action is that 246 has never been in a position to determine who is, or represents, TF [Trais] for purposes of distributing the Interpleaded Funds.  [Id. at ¶¶ 13, 16].”)  Jawad’s children however, are not named as defendants in this action.  Moreover, the Complaint alleges only that Trais and Jawad claim to be entitled to the proceeds, not Jawad’s children.  (See Comp. ¶ 11.) 

 

Accordingly, Trais’ motion is GRANTED WITH LEAVE TO AMEND, for 246 to allege facts sufficient to support an interpleader claim.  246 shall file and serve a First Amended Complaint, should it elect to do so, no later than july 20, 2017.  (See C.C.P. § 438(h)(2).)

 

Moving 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 Joseph C. Scott, Department 25.

 

 

 

5. MOTION TO STAY LITIGATION OF THE CROSS-COMPLAINT

TENTATIVE RULING:

 

The Motion of Plaintiff and Cross-Defendant 246 Atherton Avenue LLC (“246”) to Stay Litigation of the Cross-Complaint of Defendant and Cross-Complainant Trais Fluors LLC (“Trais”) is DENIED without prejudice in light of the court’s granting Trais’ motion for judgment on the pleadings as to the Complaint-in-Interpleader.

 

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

LineS: 6 & 7

17-CIV-01402     JANIS MILLSOP vs. FORD MOTOR COMPANY, et al.

 

 

JANIS MILLSOP                          STEVE MIKHOV 

FORD MOTOR COMPANY                     SPENCER P. HUGRET

 

 

 

6. HEARING ON DEMURRER TO PLAINTIFF’S COMPLAINT

TENTATIVE RULING:

 

 

the Demurrer to Complaint by Defendant Ford Motor Company is SUSTAINED WITH LEAVE TO AMEND as to the Third, Fourth, and Fifth causes of action.  Plaintiff does not plead these fraud-based claims with the requisite specificity.  [Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73].  Further, to assert a fraud action against a corporation, a plaintiff must also allege the names of the person(s) who allegedly made the fraudulent representation, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.  [Tarmann v. State Farm Mutual Auto Insurance Co. (1991) 2 Cal.App.4th 153, 157].

 

The Demurrer is OVERRULED on statute of limitations grounds and on the ground that the economic loss rule bars Plaintiff’s fraud claims.

 

Defendant’s Request for Judicial Notice is DENIED as to Exhibits A-D.

 

Plaintiff shall file her amended Complaint, should she elect to do so, no later than July 13, 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 Jose C. Scott, Department 25.

 

 

7. MOTION TO STRIKE PUNITIVE DAMAGES

TENTATIVE RULING:

 

The Motion to Strike by defendant Ford Motor Company is GRANTED WITH LEAVE TO AMEND as to the prayer for punitive damages set forth at Paragraph H of the Complaint’s Prayer.  Pursuant to Civil Code § 3294(a), punitive damages may be recovered only where it is proven by clear and convincing evidence that a defendant is guilty of “oppression, fraud, or malice”.  Punitive damages may not be pled generally, but must be pled with specificity.  [Brousseau v. Jarret (1977) 73 Cal.App.3d 864, 872].  In establishing a claim for punitive damages, plaintiff must show by “clear and convincing” evidence that the defendant is guilty of oppression, fraud or malice.  Civil Code § 3294(a).

 

Moving 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 Joseph C. Scott, Department 25.

 

 



 

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17-CIV-01644     KATHERINE STECKER vs. ANNIE JACOB, et al.

 

 

KATHERINE STECKER                      JASON HAIN

ANNIE JACOBS                           LANCE BURROW

 

 

MOTION TO STRIKE PORTINOS OF PLAINTIFF’S PLEADINGS

TENTATIVE RULING:

 

The motion to strike punitive damages brought by Annie Jacobs is Denied.  Plaintiff has pled sufficient facts to support her prayer for punitive damages based on retaliation (Complaint, ¶¶ 21, 29) and nuisance (¶¶ 17, 20, 27, 35).  Punitive damages are a statutory remedy for retaliatory eviction (Civ. Code § 1942.5, subd. (f)(2)) and nuisance (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 920-21).

 

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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CIV536958     TIMOTHY CHEY VS. FACEBOOK, INC.

 

 

TIMOTHY CHEY                           AARON M. GLADSTEIN

FACEBOOK, INC.                         JULIE E. SCHWARTZ

 

 

HEARING ON DEMURRER TO PLAINTIFF’S THIRD AMENDED COMPLAINT

TENTATIVE RULING:

 

Continued to July 10, 2017 at 9:00 a.m. in Dept. LM.

 

 



 

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Line: 10

CLJ536178     IN RE: $686.00

 

 

PEOPLE OF THE STATE OF CALIFORNIA       DISTRICT ATTORNEY

$686.00

 

 

MOTION FOR SUMMARY JUDGEMENT

TENTATIVE RULING:

 

GRanted.  Petitioner has met its burden of proof under CCp 437c(p)(1) to establish that there is no defense to this action.  The evidence proves each of the elements required to entitle Petitioner to a forfeiture of the seized property.

 

 

Moving party is directed to prepare a written order and judgment 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 Joseph C. Scott, Department 25.

 

 



 

 

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 JONATHAN E. KARESH

Department 20

 

400 County Center, Redwood City

Courtroom 8C

 

Tuesday, June 20, 2017

 

If you plan to appear on any case on this calendar,

 you must call (650) 261-5120 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

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Line: 1

17-CIV-01482     NUTS FOR CANDY vs. VISA, INC., et al

 

 

NUTS FOR CANDY                         JOSEPH W. COTCHETT

Visa, inc.                             Robert j. vizas

 

 

Complex Case Status Conference

tentative ruling:

 

Parties to appear in Department 20, Courtroom 8C at 9:30 A.M.

 



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Line: 2

17-CIV-01736     RACHEL MONIZ vs. ADECCO USA, INC., et al

 

 

RACHEL MONIZ                           CAROLYN HUNT COTTRELL

adecco usa, inc.                      

 

 

Complex Case Status Conference

tentative ruling:

 

 

Parties to appear in Department 20, Courtroom 8C at 9:30 A.M.

 


 

 

 

 

 


POSTED:  3:00 PM

 

 

© 2017 Superior Court of San Mateo County