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

 

Wednesday, January 17, 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

 

 

 

 

 

 

 

 

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16-CIV-00086     CONSTANTINE ALEX PARARAS vs. AMIR ALZGOUL, et al.

 

 

CONSTANTINE ALEX PARARAS               VALERIE N. ROSE

AMIR PARARAS                           PHILIP SEGAL

 

 

DEFENDANT’S MOTION FOR ORDER GRANTING LEAVE TO OBTAIN SECOND (POST-SURGERY) dEFENSE IME

TENTATIVE RULING:

 

Defendants’ Motion for Leave to Take a Second Defense Medical Examination of Plaintiff is DENIED.  Defendants have not met their burden of demonstrating good cause.

 

Defendants argue, as they did in their meet and confer correspondence with Plaintiff’s counsel, that if Defendants had known about Plaintiff’s Nov. 2016 knee surgery prior to the 4-10-17 IME, they would have rescheduled it.  (Thomas Decl., Ex. D).  One month before the 4-10-17 examination, however, Plaintiff testified in deposition about his Nov. 2016 knee surgery, and answered defense counsel’s questions about it.  If Defendants’ expert, Dr. Bradshaw, did not know about the Nov. 2016 surgery prior to the April 2017 IME, that is either because he did not review the medical records or Plaintiff’s deposition transcript, and/or defense counsel did not tell him about it.

 

Additionally, there was not sufficient admissible evidence explaining why Defendants’’ medical expert (Dr. Bradshaw), in order to testify at trial regarding Plaintiff’s post-surgery recovery, prognosis, reasonable and necessary future treatment, etc., would need to examine Plaintiff again.    

 

Nor does the Court find Defendants’ prejudice argument very compelling.  Plaintiff’s knee injury is only one of several claimed injuries at issue in the case.  And as for the Nov. 2016 surgery, Defendants presumably have all of the relevant medical records, already questioned Plaintiff in deposition about the surgery, and Defendants’ expert (Dr. Bradshaw), nearly five months after the surgery, examined Plaintiff and questioned him his current condition.  In injury cases, a Plaintiff’s condition can always change to some extent after a defense IME.  That fact alone is not a sufficient basis to subject Plaintiff to multiple examinations. 

 

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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16-CIV-01174     STEPHEN BOURQUE vs. CHRISTOPHER C. HALL

 

 

STEPHEN BOURQUE                        Pro/PER

CHRISTOPHER C. HALL                    JASON FELLNER

 

 

DEFENDANT’S MOTION TO TERMINATING AND MONETARY SANCTIONS, OR IN THE ALTERNATIVE, MOTION FOR ISSUE, EVIDENTIARY, AND MONETARY SANCTIONS AGAINST PLAINTIFF

TENTATIVE RULING:

 

The Motion for Terminating and Monetary Sanctions, or, in the Alternative, for Issue, Evidentiary, and Monetary Sanctions brought by defendant Christopher Hall is ruled on as follows:

 

Disposition with Regard to the Complaint. This case concerns both a Complaint, filed by plaintiff Stephen Bourque, and a Cross-Complaint, filed by Attorney Christopher Hall. The Complaint is a legal malpractice action. The Cross-Complaint is an action to recover unpaid legal bills.

 

This Court granted a summary judgment motion as to the causes of action in the Complaint on or about November 08, 2017, and entered judgment as to the Complaint in favor of Defendant on November 14, 2017.  On January 9, 2018, Defendant filed a Notice of Non-Opposition requesting a continuance “[i]n light of Plaintiff’s anticipated refiling of his Motion to Set Aside the judgment before Honorable Judge Karesh.” As to the Complaint, instead of continuing the matter to be placed on calendar yet again, the portion of this motion that pertains to the Complaint is instead DENIED AS MOOT without prejudice and Defendant may re-notice and re-serve the motion in the event that the existing judgment is eventually set aside.

 

Disposition with Regard to the Cross-Complaint. As to the portion of the motion that concerns the Cross-Complaint, the motion requires additional analysis. While Defendant has established that Plaintiff has a pattern of willful failure to comply with discovery, the Court finds that the actual sanctions being requested are inappropriate under the circumstances.

 

While Defendant has shown the necessary willfulness and “history of abuse,” the requested sanctions are not tailored to the harm caused by the withheld discovery. Here, Defendant already won a motion for summary judgment as to Plaintiff’s Complaint based in no small part on Plaintiff’s failure to respond discovery requests that pertained to the claims in that pleading. That was proper because the subject matter of the discovery requests pertained to the subject matter of Plaintiff’s Complaint. But, with respect to Defendant’s Cross-Complaint, Defendant failed to pinpoint, cite, or link the subject matter of the discovery requests at issue to the subject matter of the Cross-Complaint. As the moving party, the burden is on Defendant to do so.

 

While the discovery requests were extensive, from a cursory review and without the benefit of pinpoint briefing, it does not appear that the subject matter of the discovery at issue (which appears to pertain almost entirely to the Complaint) bears on the issues raised in the Cross-Complaint. Consistent with that impression, the moving papers in support of the present motion itemize the issues that Defendant seeks to have precluded and each of those issues pertain to the Plaintiff’s claims in the Complaint—not to the Cross-Complaint. In considering whether to apply the failure to respond to the discovery at issue as a basis for imposing harsher sanctions such as precluding issues, excluding evidence, or imposing the “doomsday” sanction of termination, the Court is mindful that here the discovery at issue does not appear to be connected to the causes of action made in the Cross-Complaint.  In fact, the proposed order accompanying the filing of the motion does not even mention the cross-complaint.

 

Nevertheless, because of the procedural posture of this case and because of Plaintiff’s serious, substantial, and repeated misuses of the discovery process, the instant motion is DENIED WITHOUT PREJUDICE as to the Cross-Complaint to leave open the possibility that Defendant can link or “tailor” the discovery failures at issue to the claims made in the Cross-Complaint.

 

Sanctions. The request for sanctions is DENIED. As to the Complaint, sanctions are not appropriate as judgment has already been entered. As to the Cross-Complaint, though Defendant is technically a party that has unsuccessfully asserted a claim, the Court finds that Defendant had substantial justification for doing so and that imposition of a sanction would be unjust. Code Civ. Proc. § 2023.030(a).

 

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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16-clj-02450 INVESTMENT RETRIEVERS, INC. vs. ROBERTO CARRANZA, et al.

 

 

INVESTMENT RETRIEVERS, INC.             DANIEL JOHN CARVO

ROBERTO CARRANZA                       PRO/PER

 

 

PLAINTIFF’S MOTION FOR CHANGE OF VENUE

TENTATIVE RULING:

 

The motion to change venue to San Joaquin County is GRANTED.  Plaintiff shall pay all costs related to the transfer.  CCP §399. 

 

 

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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17-CIV-00728     MIGUEL MADRIGAL, et al. vs. KAISER FOUNDATION HEALTH

                   PLAN, INC., et al.

 

 

MONICA MADRIGAL                        MICHAEL E. GATTO

KAISER FOUNDATION HEALTH PLAN, INC.     George E. Clause

 

 

REBECCA DEVOE’S MOTION TO COMPEL ARBITRATION AND TO STAY ACTION

TENTATIVE RULING:

 

This matter is dropped from calendar as MOOT because the parties have entered into a stipulated order.

 

 



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Line: 5

17-CIV-03086     REBECCA SNELL vs. PATRICIA FRANCO-BROWN, et al.

 

 

REBECCA SNELL                          PATRICK BALDWIN

PATRICIA FRANCO-BROWN                  TIMOTHY G. MCFARLIN

 

 

REBECCA SNELL’S MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS AND MONETARY SANCTIONS

TENTATIVE RULING:

 

This matter is continued to February 9, 2018 at 9:00 a.m. in the Law and Motion Department at the request of the court.

 

 



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Line: 6

17-CIV-03244     SHIN LANG PANG vs. BANK OF AMERICA, N.A., A NATIONAL

                    ASSOCIATION, et al.

 

 

SHIN LANG PANG                         STEPHEN R. GOLDEN

BANK OF AMERICA, N.A.                  MARK J. KENNEY

 

 

DEFENDANT’S HEARING ON DEMURRER TO PLAINTIFF’S COMPLAINT

TENTATIVE RULING:

 

This matter is dropped from calendar as an amended complaint has been filed.

 

 



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17-CLJ-00581     INVESTMENT RETRIEVERS, INC. vs. EDISON EMAAS, et al.

 

 

INVESTMENT RETRIEVERS, INC.             DANIEL CARVO

EDISON EMAAS                           PRO/PER

 

 

PLAINTIFF’S MOTION FOR CHANGE OF VENUE

TENTATIVE RULING:

 

The motion to change venue to Sacramento County is GRANTED.  Plaintiff shall pay all costs related to the transfer.  CCP §399. 

 

 

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: 8

17-CLJ-00797     CAVALRY SPV I, LLC vs. RYAN N. BALUNSAT, et al.

 

CAVALRY SPV I, LLC                     JASON M. BURROWS

RYAN N. BALUNSAT                       PRO/PER

 

 

PLAINTIFF’S MOTION TO TRANSFER VENUE

TENTATIVE RULING:

 

The motion to change venue to San Francisco County is GRANTED.  Plaintiff shall pay all costs related to the transfer.  CCP §399. 

 

 

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: 9

17-CLJ-02321     EDGES ELECTRICAL GROUP, LLC vs. FEDERAL SOLUTIONS

                  GROUP, INC., et aL.

 

 

EDGES ELECTRICAL GROUP, LLC             GLEB FINKELMAN

CITY OF MENLO PARK                     NICOLAS A. FLEGEL

 

 

OLD REPUBLIC SURETY COMPANY’S MOTION TO DEPOSIT BY STAKEHOLDER

TENTATIVE RULING:

 

Cross-Complainant’s unopposed motion is GRANTED.  Old Republic Surety Company shall deposit with the court $7,500, less the $2,500 in fees and costs incurred in connection with the interpleader, within 30 days.  Upon this deposit, Cross-Complainant shall be discharged from all liability with respect to Bond No. W150181550. 

 

The additional request for a restraining order in accordance with CCP §386(f) is also GRANTED.   

 

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.

 

 



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LineS: 10 - 12

17-UDL-00525     REDWOOD PROPERTY INVESTORS II, LLC vs. ARLENE

                  GASPAR, et al.

 

 

REDWOOD PROPERTY INVESTORS II, LLC      SCOTT M. HARRIS

ARLENE GASPAR                          Pro/PER

 

 

10. REDWOOD PROPERTY INVESTORS II, LLC’S STATUS CONFERNCE

TENTATIVE RULING:

 

The status conference regarding the motion for terminating sanctions is continued to February 9, 2018 at 9:00 a.m. in the Law and Motion Department.  Although the prior stay of this matter was lifted by order of the United States District Court, a new notice of removal and stay was filed on January 10, 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.

 

 

11. REDWOOD PROPERTY INVESTORS II, LLC’S STATUS CONFERENCE

TENTATIVE RULING:

 

The status conference regarding the motion for terminating sanctions is continued to February 9, 2018 at 9:00 a.m. in the Law and Motion Department.  Although the prior stay of this matter was lifted by order of the United States District Court, a new notice of removal and stay was filed on January 10, 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.

 

 

 

12. REDWOOD PROPERTY INVESTORS II, LLC’S STATUS CONFERENCE

TENTATIVE RULING:

 

The status conference regarding the motion for terminating sanctions is continued to February 9, 2018 at 9:00 a.m. in the Law and Motion Department.  Although the prior stay of this matter was lifted by order of the United States District Court, a new notice of removal and stay was filed on January 10, 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.

 

 

 



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17-UDU-01122     CONSTANTINO FAMILY, LLC vs. KINGFISH, LLC, et al.

 

 

CONSTANTINO FAMILY, LLC                MARC D. BENDER

KINGFISH, LLC                          EDWARD C. SINGER, JR.

 

 

KINGFISH, LLC’S MOTION TO STRIKE

TENTATIVE RULING:

 

The motion to strike is dropped from calendar as moot.  On December 28, 2017, a First Amended Complaint was filed with a verification signed by a member of the plaintiff LLC.   

 

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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CIV534600     SONNY SIU VS. DAVID ZHANG

 

 

SONNY SIU                              MATTHEW D. ZUMSTEIN

DAVID ZHANG                            DARIUS T. CHAN

 

 

PLAINTIFF’S ORDER TO SHOW CAUSE RE: CONTEMPT

TENTATIVE RULING:

 

The parties including Defendant David Zhang shall appear for arraignment on the contempt charge. 

 

 

 



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CIV537384     JASON CROSS, ET AL. VS. FACEBOOK, INC., ET AL.

 

 

JASON CROSS                            TODD COLE

FACEBOOK, INC.                         JULIE E. SCHWARTZ

 

 

DEFENDANT’S MOTION FOR ATTORNEY FEES AND COSTS PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE §425.16

TENTATIVE RULING:

 

Defendant FACEBOOK, INC.’s Motion for Attorney’s Fees is GRANTED pursuant to Code Civ. Proc. § 425.16(c)(1).  However, the Court exercises its discretion to decline the number of hours expended on Facebook’s largely redundant demurrer, in the amount of $36,128.00.  The total award is therefore $308,047.56 in attorney’s fees and $1,427.50 in costs. 

 

Code Civ. Proc. § 425.16(c)(1) provides, “a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.” 

 

Facebook’s attorney’s fee request is extraordinarily high, yet does not appear unreasonable given the record in this case.  The anti-SLAPP motion was significant, posed novel theories, and required extensive oral briefing before the law and motion judge took the matter under submission.  The eventual ruling on the motion was six pages long.  The Court granted Facebook 60 days to file a motion for attorney’s fees, which it did on the last possible day as it waited to see whether Plaintiffs would file an appeal.  Plaintiffs eventually did, one day before its Opposition to the initial fee motion was due.  The parties then went on to brief and argue this matter before the Court of Appeal, resulting in a published decision (Cross v. Facebook, Inc. (2017) 14 Cal.App.5th 190).  There, the Court of Appeal found that the anti-SLAPP motion should be granted as to all six of Plaintiffs’ causes of action and the Complaint stricken in its entirety.  This decision became final following the Supreme Court’s denial of review.

It cannot be disputed that Facebook’s counsel expended an extraordinary amount of time litigating this matter to its conclusion.  While Plaintiffs assert that Facebook unreasonably assigned five partners to work on this case, this is a mischaracterization. At each stage of the proceedings, Facebook had no more than two partners working on the case at any time. 

The billing rates for the attorneys assigned to this matter are reasonable in light of prevailing Bay Area rates (in the $500-600 range for associates, and $600-800 for partners, depending on experience).  Given that Plaintiff MIKEL KNIGHT was publicly boasting that his own fees had exceeded a quarter million dollars by the time the anti-SLAPP motion was filed, Facebook’s total bill appears to be around the same ballpark figure.

The only reduction to the requested amount of fees is the $36,128.00 that was expended on filing a demurrer at the same time as the anti-SLAPP motion.  All of the arguments in that motion were duplicative of the anti-SLAPP motion, and the Court dismissed much of it as moot.    

 

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.

 



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CLJ488535     PERSOLVE, LLC VS. MARK L. ADAMS

 

 

PERSOLVE, LLC                          MICHAEL H. RAICHELSON

MARK L. ADAMS                          Pro/PER

 

 

DEFENDANT’S MOTION FOR RECONSIDERATION OF MOTION TO SET ASIDE AND VACATE ORDER AND SETTING ASIDE JUDGMENT AND FOR LEAVE TO DEFEND THE ACTION DECLARATION OF MARK ADAMS

TENTATIVE RULING:

 

Defendant’s motion for reconsideration is DENIED.

 

Defendant has not set forth any new facts or law which were not available to him on the previous hearing date as required by Code of Civil Procedure Section 1008  To the extent defendant identifies a new or different ground for setting aside the judgment, he fails to offer a satisfactory explanation for not having raised this issue previously. 

 

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.

 


 

 

 

 

 


POSTED:  3:00 PM

 

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