April 27, 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

 

Wednesday, April 26, 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-00214     ZHIZE HUANG VS. TA HOME, INC, ET AL.

 

 

ZHIZE HUANG                            MORTIMER H. HARTWELL, ESQ

TA HOME, INC                           ADRIAN J. SAWYER

 

 

MOTION TO BE RELIEVED AS COUNSEL FOR RESPONDENT TA HOME, INC.

TENTATIVE RULING:

 

The Motion of Orrick, Herrington & Sutcliffe to be Relieved as Counsel for Respondent TA HOME, INC. is granted.

 

TA HOMES, Inc. is advised that it may not appear in pro per and must, therefore, retain substitute counsel.

 

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 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: 2

16-CIV-02257     MARIE MOSTOFI vs. MASOUD MOSTOFI, et al.

 

 

MARIE MOSTOFI                          Robert E. Daye

MASOUD MOSTOFI                         ANTHONY J. KERIN, III

 

 

MOTION FOR RESTRAINING ORDER RE: PROPERTIES

TENTATIVE RULING:

 

The motion for a restraining order is continued to May 18, 2017 at 2:00 PM in Dept. 28. 

 

 



 

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LineS: 3 & 4

16-CIV-02370     MAZEN TAWASHA vs. WILLIAM ELHIHI, et al.

 

 

MAZEN TAWASHA                          TODD A. ROBERTS

WILLIAM ELHIHI                         PAUL SMOOT

 

 

3. SPECIAL MOTION TO STRIKE

TENTATIVE RULING:

 

Defendant William Elhihi’s Special Motion to Strike Pursuant to CCP sec. 425.16 is GRANTED in part and DENIED in part. The court exercises its discretion to hear the motion although it was filed beyond the 60 day deadline.

 

Code of Civil Procedure § 425.16(b)(1) provides: “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”

 

Section 425.16(b)(2) further states, “In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.”

 

A defendant specially moving to strike has the burden to show that the conduct underlying a cause of action arises from protected activity. City of Cotati v. Cashman, 29 Cal. 4th 69, 79 (2002). Defendant has done that by demonstrating that his filing the prior lawsuit, J&J Distributing Co., Inc. v. Just Natural, Inc., San Mateo Superior Court case no. CIV 534169, was a protected act under CCP sec. 425.16(e)(2) which reads: “any written or oral statement or writing made in connection with an issue under consideration or review by a … judicial body.”

 

Once this has been established, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the claim. Zamos v. Stroud, 32 Cal. 4th 958, 965 (2004). To do so, the plaintiff must show that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence is credited. Id.

 

Plaintiff has not produced evidence establishing a prima facie case for the cause of action for malicious prosecution. The elements of malicious prosecution are that the prior action: (1) was commenced by or at the direction of the defendant and was pursued to a legal termination favorable to the plaintiff; (2) was brought without probable cause; and (3) was initiated with malice. Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal. 4th 260, 292, 297.

 

The Defendant’s voluntary dismissal of the prior action was not “favorable to the plaintiff,” but was based on economic reasons, because Defendant learned that Tawasha and Just Natural, Inc. had insufficient assets to satisfy a judgment, even if he were to prevail. A voluntary dismissal may be an implicit concession that the dismissing party cannot maintain an action, only where there are additional sufficient facts in support of favorable termination. “It is not enough, however, merely to show that the proceeding was dismissed.” JSJ Limited Partnership v. Mehrban (2012) 205 Cal. App. 4th 1512, 1515.

 

Further, the cause of action for malicious prosecution would require that the underlying action was instituted for a malicious purpose. It is necessary to prove either actual ill will or some ulterior or improper purpose. Downey v. LMI Ins. Co. (1998) 66 Cal. App. 4th 478, 494. Plaintiff has been unable to present evidence of malice on the part of Defendant Elhihi in filing the prior action.

 

 

With regard to the Plaintiff’s second cause of action, Plaintiff has produced evidence establishing a prima facie case for the cause of action for abuse of process, evidence which, if believed by the trier of fact, would result in a judgment for the Plaintiff. To establish a cause of action for abuse of process, a plaintiff must plead two elements: (1) the defendant entertained an ulterior motive in using the process and (2) committed a willful act in a wrongful manner. Templeton Feed & Grain v. Ralston Purina Co. (1968) 69 Cal. 2d 461, 466.

 

Therefore, the motion is GRANTED with regard to the first cause of action for malicious prosecution and that cause of action is DISMISSED. The motion is DENIED with regard to the second cause of action for abuse of process.

 

Defendant’s Request for Judicial Notice in support of Motion to Strike Pursuant to California Code of Civil Procedure sec. 425.16 is GRANTED in part. The Court takes judicial notice of (A) the complaint in the case of J&J Distributing Co., Inc. v. Just Natural, Inc., San Mateo Superior Court case no. CIV 534169, filed on June 9, 2015, (B) the Proof of Service on Mazen Tawasha of the Summons and Complaint in J&J Distributing Co., Inc. v. Just Natural, Inc., San Mateo Superior Court case no. CIV 534169, filed on June 9, 2015, (C) the Notice of Demurrer of Defendants Just Natural, Inc. and Mazen Tawasha to Plaintiff J&J Distributing Company, Inc.’s Complaint in J&J Distributing Co., Inc. v. Just Natural, Inc., San Mateo Superior Court case no. CIV 534169, filed on May 20, 2016, and (D) the Request for Dismissal without prejudice of the complaint in J&J Distributing Co., Inc. v. Just Natural, Inc., San Mateo Superior Court case no. CIV 534169, filed on June 10, 2016.

 

The Court declines to take judicial notice of (E) A printout of the website of the California Secretary of State website business search, https://businesssearch.sos.ca.gov, establishing Just Natural, Inc. as a dissolved corporate entity, no. C2274335, with agent for service of process Samer Elbandak. A court may not take judicial notice of any matter “unless authorized or required by law.” Evid. Code sec. 450. Although it might be appropriate to take judicial notice of the existence of websites, the same is not true of their factual content. See Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal. 4th 1057, 1063-1064 (recognizing that although public documents may be proper subjects for judicial notice, the truth of the matters stated in such documents is not), overruled on other grounds by In re Tobacco Cases II (2007) 41 Cal. 4th 1257, 1262.

 

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.

 

4. MOTION TO SANCTION

TENTATIVE RULING:

 

Defendant’s Motion for Sanctions under CCP § 128.7 is DENIED. CCP sec.  128.7 provides for a discretionary award of sanctions for a frivolous filing, that is, one where an attorney files a pleading which no competent attorney could believe was well grounded in fact and warranted by law. That is not the case here, as demonstrated by the ruling on the Special Motion to Strike, above.

 

The Court does not find that this action was filed for an improper purpose, nor for personal nor economic harassment of Defendant.

Defendant’s Request for Judicial Notice in support of Motion for Sanctions Pursuant to California Code of Civil Procedure sec. 128.7 is GRANTED in part. The Court takes judicial notice of (A) the complaint in the case of J&J Distributing Co., Inc. v. Just Natural, Inc., San Mateo Superior Court case no. CIV 534169, filed on June 9, 2015 and (B) the Request for Dismissal without prejudice of the complaint in J&J Distributing Co., Inc. v. Just Natural, Inc., San Mateo Superior Court case no. CIV 534169, filed on June 10, 2016.

 

The Court declines to take judicial notice of (C) A printout of the website of the California Secretary of State website business search, https://businesssearch.sos.ca.gov, establishing Just Natural, Inc. as a dissolved corporate entity, no. C2274335, with agent for service of process Samer Elbandak. A court may not take judicial notice of any matter “unless authorized or required by law.” Evid. Code sec. 450. Although it might be appropriate to take judicial notice of the existence of websites, the same is not true of their factual content. See Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal. 4th 1057, 1063-1064 (recognizing that although public documents may be proper subjects for judicial notice, the truth of the matters stated in such documents is not), overruled on other grounds by In re Tobacco Cases II (2007) 41 Cal. 4th 1257, 1262.

 

Plaintiff’s Requests for Judicial Notice in support of Opposition to Defendant William Elhihi’s Motion for Sanctions Pursuant to California Code of Civil Procedure sec. 128.7 and Opposition to Defendant William Elhihi’s Special Motion to Strike are GRANTED in part. The Court takes judicial notice of (A) the complaint in the case of J&J Distributing Co., Inc. v. Just Natural, Inc., San Mateo Superior Court case no. CIV 534169, filed on June 9, 2015, (E) the Court’s Docket in J&J Distributing Co., Inc. v. Just Natural, Inc., San Mateo Superior Court case no. CIV 534169, (F) the Proof of Service on Mazen Tawasha of the Summons and Complaint in J&J Distributing Co., Inc. v. Just Natural, Inc., San Mateo Superior Court case no. CIV 534169, on April 22, 2016, (G) the Memorandum of Points and Authorities in support of Demurrer of Defendants Just Natural, Inc. (a dissolved California corporation) and Mazen Tawasha (incorrectly sued as Mazin Tawasha), and [sic] Plaintiff J&J Distributing Company, Inc.’s Complaint, and all accompanying documents filed in connection with the Demurrer in J&J Distributing Co., Inc. v. Just Natural, Inc., San Mateo Superior Court case no. CIV 534169, (H) the May 20, 2016 Declaration of Michon Spinelli in support of Demurrer of Defendant Just Natural, Inc. and Mazen Tawasha to Plaintiff J&J Distributing Company, Inc.’s Complaint in J&J Distributing Co., Inc. v. Just Natural, Inc., San Mateo Superior Court case no. CIV 534169, (I) the June 16, 2016 Reply in support of Demurrer of Defendants Just Natural, Inc. and Mazen Tawasha to Plaintiff J&J Distributing Company, Inc.’s Complaint in J&J Distributing Co., Inc. v. Just Natural, Inc., San Mateo Superior Court case no. CIV 534169 and reflecting that no Opposition to the Demurrer was ever filed, and (J), the Request for Dismissal of the entire action “without prejudice” in J&J Distributing Co., Inc. v. Just Natural, Inc., San Mateo Superior Court case no. CIV 534169.

 

The Court declines to take judicial notice of: (B) A printout of the website of the California Secretary of State website business search, https://businesssearch.sos.ca.gov, showing no registered corporation named “J&J Distributing Company, Inc.,” (C) A printout of the website of the California Secretary of State website business search, https://businesssearch.sos.ca.gov, showing a registered corporation named “J&J Distribution Company, Inc.” with a registered agent for service of process named William Elhihi and “status” of it as “FTB Suspended,” as recently as May 17, 2016, (D) A printout of the website of the California Secretary of State website which defines “FTB” as follows: “[t]he business entity was suspended or forfeited by the Franchise Tax Board for failure to meet tax requirements (e.g., failure to file a return, pay taxes, penalties, interest)”, (K) A printout of the website of the California Secretary of State website business search, https://businesssearch.sos.ca.gov, showing the registered information for the corporation named “J&J Distributing Company, Inc.”. A court may not take judicial notice of any matter “unless authorized or required by law.” Evid. Code sec. 450. Although it might be appropriate to take judicial notice of the existence of websites, the same is not true of their factual content. See Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal. 4th 1057, 1063-1064 (recognizing that although public documents may be proper subjects for judicial notice, the truth of the matters stated in such documents is not), overruled on other grounds by In re Tobacco Cases II (2007) 41 Cal. 4th 1257, 1262.

 

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.

 

 



 

9:00

Line: 5

17-CIV-00055  KATHLEEN LIVINGOOD vs. DOME CONSTRUCTION CORPORATION, et al.

 

 

KATHLEEN LIVINGOOD                     STEPHEN NOEL ILG

DOME CONSTRUCTION CORPORATION           BAILEY K. BIFOSS

 

 

HEARING ON DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT

TENTATIVE RULING:

 

The Demurrer of Defendant Dome Construction Corporation (“Defendant”) to the First Amended Complaint (“FAC”) of Plaintiff Kathleen Livingood (‘Plaintiff”), is ruled on as follows:

 

(1) The Demurrer to the 3rd Cause of Action for Unlawful Retaliation is SUSTAINED WITH LEAVE TO AMEND for Plaintiff to allege facts sufficient to support retaliation in violation of Government Code section 12940(m)(2) based on Plaintiff’s protected activity of requesting a reasonable accommodation.

 

(2) The Demurrer to the 5th Cause of Action for Discrimination and Harassment is SUSTAINED WITH LEAVE TO AMEND based on uncertainty.  A demurrer for uncertainty may be sustained where the complaint is so bad that defendant cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against defendant.  (Khoury v. Maly’s of Calif. Inc. (1993) 14 Cal.App.4th 612, 616.)  It is unclear whether this claim is intended to be for harassment, discrimination, or failure to prevent discrimination and harassment.  (See FAC ¶¶ 93-95.)  In amending, Plaintiff is directed to comply with California Rule of Court Rule 2.112.

 

(3) The Demurrer to the 10th Cause of Action for Intentional Infliction of Emotional Distress is SUSTAINED WITH LEAVE TO AMEND, for Plaintiff to allege facts sufficient to support extreme and outrageous conduct by Defendant.  The court does not reach the issue of whether this claim, when property pled, would be subject to the workman’s compensation exclusive remedies.

 

(4) The Demurrer to the 11th Cause of Action for Negligent Infliction of Emotional Distress and 12th Cause of Action for Negligence are SUSTAINED WITH LEAVE TO AMEND for Plaintiff to allege facts sufficient to support all elements of negligence, including (1) a legal duty to use care; (2) a breach of such legal duty; and (3) the breach as the proximate or legal cause of the resulting injury. (See Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) 

 

(5) The Demurrer to the 14th Cause of Action for Defamation is SUSTAINED WITH LEAVE TO AMEND for Plaintiff to allege facts sufficient to support all the elements of this claim. To state a cause of action for defamation, Plaintiff must establish “(a) a publication was made to a third party that is (b) false, (c) defamatory, and (d) unprivileged and that (e) has a natural tendency to injure or that cause’s special damage. (Taus v. Loftus (2007) 40 Cal.4th 683, 720.)

 

Unless an employer's performance evaluation falsely accuses an employee of criminal conduct, lack of integrity, dishonesty, incompetence or reprehensible personal characteristics or behavior, it cannot support a cause of action for libel. (Jensen v. Hewlett-Packard Co. (1993) 14 Cal.App.4th 958, 965.)  This is true even when the employer's perceptions about an employee's efforts, attitude, performance, potential or worth to the enterprise are objectively wrong and cannot be supported by reference to concrete, provable facts.  (Id.)  The statements in the marketing re-evaluation form by Ms. Wasserman about Plaintiff, are therefore insufficient to support this claim.  (See FAC ¶ 39.)  Also, contrary to Plaintiff’s assertion, Ms. Wasserman’s accusation that Plaintiff was using her disability to her advantage, does not rise to the level of accusing Plaintiff of a lack of integrity or dishonesty to support defamation. 

 

Plaintiff also has not alleged facts to support publication to a third party.  Plaintiff only generally alleges publication to third persons who Plaintiff believes are other agents and employees of Defendant, vendors and clients of Defendant and the community.  (FAC ¶ 193.)  Furthermore, to the extent that Plaintiff argues that any statements were not privileged and made with malice, Plaintiff has failed to allege detailed facts to support malice.  (Robomatic, Inc., v. Vetco Offshore (1990) 225 Cal.App.3d 270, 275–276.) 

 

(6) The Demurrer to the 15th Cause of Action for Breach of Contract is SUSTAINED WITH LEAVE TO AMEND based on failure to allege sufficient facts and uncertainty.  Plaintiff alleges a written, oral and implied in fact contract with Defendant, but fails to specify what the terms are for each contract, or to attach the written contract. 

 

(7) The Demurrer to the 16th Cause of Action for Breach of the Implied Covenant of Good Faith and Fair Dealing is SUSTAINED WITH LEAVE TO AMEND based on failure to allege sufficient facts to support this claim.  Plaintiff alleges that Defendant breached its personnel manual, but in order to support any breach of the implied covenant based on the personnel manual, Plaintiff must first allege what the contract terms in the personnel manual to which the parties actually agreed.  (See Guz v. Bechtel Natl. Inc. (2000) 24 Cal.4th 317, 352-353.) 

 

(8) Plaintiff shall have up to and including May 12, 2017 to file and serve a Second Amended Complaint. 

 

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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Line: 6

CIV527902     JOHN E. FERRY VS. LAURA J. WONS

 

 

JOHN E. FERRY                          Pro/PER

RONDA J. WONS                          PRO/PER

 

 

MOTION TO COMPEL RESPONSES TO THE COURT ORDERED PORTION OF PLAINTIFF'S SPECIAL INTERROGATORIES, ETC

TENTATIVE RULING:

 

Plaintiff’s Motion to Compel Further Answers to Interrogatories is DENIED as untimely. Defendant served her responses on December 15, 2016. Plaintiff had 50 days, until February 3, 2017, to bring the present motion. (Code of Civ. Proc. Sect. 2030.310, subd. (c) (45-day deadline, unless agreement in writing to extend.)  Plaintiff did not file the present motion until April 3, 2017. The 45-day deadline is jurisdictional. When a motion is filed late, the Court is without authority to rule on the motion to compel other than to deny it. (Sexton v. Superior Court (1997) 58 Cal. App. 4th 1403, 1410.)  Plaintiff offers no evidence that the parties agreed in writing to extend the deadline.

 

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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Line: 7

CLJ538451     MIDLAND FUNDING LLC VS. ALEJANDRA OVIEDO

 

 

MIDLAND FUNDING LLC                    PATRICK T. SULLIVAN

ALEJANDRA OVIEDO                       PrO/PER

 

 

MOTION FOR JUDGMENT

TENTATIVE RULING:

 

The Motion for Judgment on the Pleadings is DENIED.  Defendant’s answer incorporates facts that contains a denial of material allegations in the complaint. 

 

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

 

Wednesday, April 26, 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

16-CIV-00884     CHARLES BLOOM, et al. vs. GOLDMAN, SACHS & CO, et al.

 

 

CHARLES BLOOM                          JOHN T. JASNOCH

MERRILL LYNCH                          PATRICK D. ROBBINS

 

 

Complex Case Status Conference

TENTATIVE RULING:

 

This matter was removed to Federal Court in August of 2016. Therefore, the Complex Case Status Conference is continued 90 days to July 26, 2017 at 9:00 a.m. on the Presiding Judge’s Law and Motion Calendar. 

 

 


 

 

 

 

 


POSTED:  3:00 PM

 

 

© 2017 Superior Court of San Mateo County