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.

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, October 18, 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

 


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17-CIV-01577     CARMEN ZURITA, et al. vs. JUAN JIMENEZ, et al.

 

 

CARMEN ZURITA                          KENNETH GREENSTEIN

JUAN JIMENEZ                           MARC S. FELDMAN, ESQ.

 

 

JUAN AND ALICIA JIMENEZ’S MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT

TENTATIVE RULING:

 

The Motion to Strike requests for punitive damages filed by defendants Juan and Alicia Jimenez is denied.

The Court notes Defendants’ objection that the Plaintiffs failed to comply with CCP § 1005(c) by serving the opposition papers by mail rather than overnight delivery as required.  Plaintiffs are admonished for failing to comply with the overnight delivery requirements.  However, as a reply has been filed, the Court exercises its discretion to consider all of the briefing on this matter. 

This is a habitability and nuisance case between landlords and their tenants.  This matter previously came before the Court on June 28, 2017.  At that time, the Court granted Plaintiffs leave to provide more specificity as to the acts supporting punitive damages.  Plaintiffs filed a First Amended Complaint on July 21, 2017 with significant additional factual allegations.  Defendants now move to strike punitive damages allegations from the First, Second, Seventh, and Tenth Causes of Action for nuisance, fraudulent concealment/failure to disclose, habitability tort, and intentional infliction of emotional distress, respectively.

The First Cause of Action (Nuisance) and the Seventh Cause of Action (Habitability Tort).  Plaintiffs allege that they repeatedly notified Defendants of the defective and dangerous conditions on the premises.  They further allege that Defendants failed to repair the defects, or, if they did, that the repairs were inadequate.  Because of these allegations, the punitive damages allegations as to the first cause of action (nuisance) and the seventh cause of action (habitability tort) are adequate.  See, generally, Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903; see also Perkins v. Superior Court (1981) 117 Cal.App.3d 1, citing Taylor v. Superior Court (1979) 24 Cal.3d 890 (“Taken in context, the words ‘wrongfully and intentionally’… describe a knowing and deliberate state of mind from which a conscious[] disregard of petitioner’s rights might be inferred – a state of mind which would sustain an award of punitive damages.”)

The Second Cause of Action (Fraudulent Concealment/Failure to Disclose).  Plaintiffs allege fraud in that Defendants knew of the defects—including the lack of permitting—that existed on the premises and willfully and intentionally concealed them.  Viewed in the context of this case, which contains allegations of a landlord who built illegal units that were not up to code and for which permits had not been obtained in order to quietly profit from sub-par units, the allegation that Defendant knew their units were illegal and yet concealed that from Plaintiffs is sufficient to support an allegation of fraudulent concealment, and fraud is its own basis for punitive damages.  Civil Code § 3294. 

The Tenth Cause of Action (Intentional Infliction of Emotional Distress).  The allegations of punitive damages for intentional infliction of emotional distress are predicated on a combination of being forced to live in the dilapidated conditions (as was sufficient in Stoiber, supra, to support a claim for punitive damages) and on the harassing activities to get Plaintiffs to vacate the premises.  Viewed in tandem, these allegations are sufficient to support a claim for punitive damages.

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-04141     JOAN VELARDE vs. TRICOR AMERICA, INC., et al.

 

 

JOAN VELARDE                           JERUSALEM F. BELIGAN

TRICOR AMERICA, INC.                   LAURA EACH NGUYEN

 

 

DEFENDANT’S MOTION TO COMPEL ARBITRATION

TENTATIVE RULING:

 

Defendant TRICOR AMERICA, INC.’s Motion to Compel Arbitration is DENIED.  Defendant has failed to meet its moving burden of demonstrating the existence of an agreement to arbitrate this controversy.  Code Civ. Proc. § 1281.2. 

 

Here, Defendant has not met its burden of establishing that a written agreement to arbitrate this controversy exists.  The Declaration of Patsy Ramirez, filed in support of Defendant’s moving papers, is rife with problems. 

 

Ms. Ramirez states, “On or before February 5, 2016, [Plaintiff] was provided with a document entitled Mutual Agreement to Arbitrate Disputes, to be executed by [Plaintiff] and [Defendant].”  (Decl. Ramirez ¶ 5.)  Ms. Ramirez does not state that she herself gave this document to Plaintiff, nor does she provide a foundation for her knowledge that such document “was provided” to Plaintiff on the date asserted. 

 

Ms. Ramirez does not have a copy of the executed Agreement.  She states that “a full and complete copy of the Mutual Agreement to Arbitrate Disputes from another Tricor employee, with redactions of that employee’s personal information entered by that employee on the agreement, is attached hereto as Exhibit A.” (Decl. Ramirez ¶ 5.)  She then attaches a “blank” version of this document, which she contends was delivered to Plaintiff with his paycheck.  (Decl. Ramirez ¶ 5.)  Again, she does not state that she personally delivered the document to Plaintiff, and does not establish a foundation for her knowledge that the document was given to him. 

 

Ms. Ramirez next asserts that Plaintiff returned the executed signature page to her office on February 5, 2016.  She states she “does not recall” if Plaintiff gave her the signature page directly or if he gave it to the dispatcher on duty, but she asserts she received it and executed it that same day.  She then states that her “general practice is to execute the arbitration agreement in the presence of the driver”, but makes no specific assertion that she did so with Plaintiff.  (Decl. Ramirez ¶ 6.)

 

Ms. Ramirez admits that the executed signature page “was separated from the rest of the agreement”, and that she does “not know when or why it was separated”.  Thus, the signature page only is attached to her declaration as Exhibit B.  (Decl. Ramirez, ¶ 7.)  Defendant has filed the original signature page to the Agreement under seal. 

 

As Defendant fails to demonstrate the existence of an agreement to arbitrate this controversy, the instant motion is denied.

 

Plaintiff’s evidentiary objections are SUSTAINED as to Objection Nos. 1-4.

 

Defendant’s evidentiary objections are OVERRULED as to Objection Nos. 1-10 and 15; and SUSTAINED as to Objection Nos. 11-14 and 16.

 

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-CLJ-00939     WESCO INSURANCE COMPANY vs. RYAN AND RYAN

                    CONSTRUCTION, INC., et al.

 

 

WESCO INSURANCE COMPANy                JOHN M. PAGAN

RYAN AND RYAN CONSTRUCTION, INC.        ROY M. BARTLETT

 

 

PLAINTIFF’S MOTION TO DEPOSIT BY STAKEHOLDER

TENTATIVE RULING:

 

Plaintiff Wesco Insurance Company’s (Wesco) unopposed Motion to Deposit by Stakeholder is GRANTED.  Code Civ. Proc. Sect. 386(b); Bus. & Prof. Code Sect. 7071.6.  Wesco’s request for an award of $2,000 in attorney’s fees and costs is GRANTED.  Code Civ. Proc. Sect. 386.6.

 

 Wesco shall deposit $10,500 with the Court (the $12,500 Bond amount, minus $2,000 in awarded attorney’s fees and costs).  Upon the deposit of the funds, (a) Wesco shall be dismissed from the case and discharged from all liability asserted against it with respect to said Bond No. WB006421 (Code Civ. Proc. Sect. 386.5), (b) all claimants to the Bond funds shall interplead and litigate their respective claims in this action (Code Civ. Proc. Sect. 386(b)), (c) all persons and/or entities claiming an interest in the Bond funds shall be restrained from instituting or prosecuting any proceedings in any Court affecting the rights and obligations of Wesco with respect to the Bond (Code Civ. Proc. Sect. 386(f)); and (d) any pending legal actions against the proceeds of said Bond on behalf of any claimant herein shall be dismissed as to Wesco (Code Civ. Proc. Sect. 386(f)). 

 

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.  The court will sign and file the proposed order that was attached to the motion. 

 

 



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17-UDL-00509     DEUTSCHE BANK NATIONAL TRUST COMPANY vs. WALTER

                   HARRELL, et al.

 

 

DEUTSCHE BANK NATIONAL TRUST COMPANY    PARNAZ PARTO

WALTER HARRELL                         PRO/PER

 

 

MOTION FOR SUMMARY JUDGMENT

TENTATIVE RULING:

 

This matter was first calendared for August 30, 2017.  Defendant removed the case to Federal Court and the motion was therefore stayed.  The case was remanded from the Federal Court on October 4, 2017 and may, therefore, proceed.

 

Plaintiff’s unopposed motion for summary judgment against Defendant Walter Harrell is GRANTED for possession only, and not for damages.

 

Default has been entered against Defendant Bonnie Harrell. The Notice of Motion states that the motion is for “summary judgment,” but does not identify against which Defendants summary judgment is sought. Plaintiff’s Separate Statement of Material Facts addresses only Defendant Walter Harrell and “Defendant” (singular), but not Defendant Bonnie Harrell. Therefore, the motion is against only Defendant Walter Harrell.

 

Plaintiff has met its moving burden of establishing all elements of unlawful detainer against Defendant Walter Harrell. (See Undisputed Material Facts 1 through 5; Request for Judicial Notice, Exhibits A and G; Declaration of Veronique Borges, para. 3; Defendant Walter Harrell’s Answer, para. 2b.)

Plaintiff’s having established its prima facie case, the burden shifts to Defendant Walter Harrell to demonstrate a triable issue of material fact concerning an affirmative defense or an element of Plaintiff’s cause of action. (Code of Civ. Proc. Sect. 437c, subd. (p)(1).) Defendant has filed no opposition.

 

Plaintiff is entitled to a judgment for possession only.

 

This ruling does not affect Defendant Bonnie Harrell.

 

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, Plaintiff 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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CIV521227     CARROLL CUSTOM HOMES, inc.VS. 138 ALMENDRAL LLC, ET AL.

 

 

CARROLL CUSTOM HOMES, INC.             RICHARD M. KELLY

DOWN UNDER PLUMBING SERVICES            CAMERON KALUNIAN

 

 

DOWN UNDER PLUMBLING SERVICES, INC.’S MOTION FOR GOOD FAITH SETTLEMENT

TENTATIVE RULING:

 

DOWN UNDER PLUMBING SERVICES’ unopposed motion for good faith settlement is GRABTED.  Defendant has provided evidence sufficient to show that the settlement is within the reasonable range of its proportionate share of liability in this action

 

Where non-settling defendants do not oppose a motion on the good faith issue, a motion which sets forth the ground of good faith, accompanied by a declaration which sets forth a brief background of the case is sufficient.  City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1261.  The Memorandum of Points and Authorities and declaration of Cameron Kalunian provide the necessary information. 

 

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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CIV533681     KONG-BENG SAW VS. AVAGO TECHNOLOGIES, ET AL.

 

 

KONG-BENG SAW                          MATTHEW K. EDLING

AVAGO TECHNOLOGIES LIMITED             DANIEL F. PYNE

 

 

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

TENTATIVE RULING:

 

At the court’s request, this motion is continued to November 17, 2017 at 9:00 a.m. in the Law and Motion Department.

 



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CIV537530     SOPHIA ANDRITSAKIS VS. DAVID J. KAPLAN, ET AL.

 

 

SOPHIA ANDRITSAKIS                     EDI KRISTOPHER

DAVID J. KAPLAN                        ARTHUR W. CURLEY

ST. MATTHEWS SURGERY CENTER             LAUREN D. FIERRO

 

 

7. ST. MATTHEWS SURGERY CENTER LLC’S HEARING ON DEMURRER TO SECOND AMENDED COMPLAINT

TENTATIVE RULING:

 

The Demurrer to the second amended complaint by ST. MATTHEWS SURGERY CENTER is ruled on as follows:

 

Demurrer to the fifth cause of action (Deceit) is SUSTAINED WITH LEAVE TO AMEND. The claim against Defendant St. Matthews is not for affirmative misrepresentation, but for concealment. (SAC para. 75 (alleging concealment of facts).) The pleading meets the requirement of specific pleading regarding what facts were concealed. However, unlike most causes of action, fraud must be pleaded with factual specificity. This requirement makes it necessary for the plaintiff to plead facts that “show how, when, where, and whom, and by what means the representations were tendered." (Lazar v. Sup. Ct. (1996) l2 Cal.4th 631, 645.) Additionally, Plaintiff must allege “the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made." (Daniels v. Select Portfolio Servicing. Inc. (2016) 246 Cal.App.4th 150.)

The complaint alleges only that “Defendants” committed the concealment. Leave to amend is granted to cure this deficiency. The elements of justifiable reliance and causation are sufficiently pleaded.

 

Demurrer to the third cause of action (negligent misrepresentation) is SUSTAINED WITH LEAVE TO AMEND for the same reason as the fifth cause of action.

 

Demurrer to the seventh cause of action (IIED) is OVERRULED. Defendant asserts two arguments: the allegations of emotional distress and the outrageousness of Defendant’s conduct are mere conclusions. The allegations in paragraph 100 are sufficient to allege the fact of Plaintiff’s emotional distress. Paragraphs 93 and 94 allege that Defendant knew that Plaintiff’s declining mental and physical states rendered her highly susceptible to emotional distress, and with that knowledge deliberately chose not to disclose the complications during the surgery. If these facts are proven, then a jury could find that St. Matthews engaged in extreme and outrageous conduct. (See CACI 1603 (“reckless disregard” defined as “(giving) little or no thought to the probable effects of (Defendant’s) conduct”).)  

 

Plaintiff is granted leave of court until November 1, 2017, to file and serve an amended complaint addressing the defects noted in this order.

 

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, DEMURRING 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.

 

 

8. DAVID KAPLAN AND FOOT CARE SPECIALIST’S HEARING ON DEMURRER TO THE 3RD, 5TH AND 7TH CASUES OF ACTION OF THE SECOND AMENDED COMPLAINT

TENTATIVE RULING:

 

The demurrer fails to comply with the meet/confer requirement. The demurring party failed to file a declaration, as required by CCP §430.41(a)(3), showing that the parties met and conferred, in person or by telephone, for the purpose of determining whether an agreement could be reached to resolve the objections to be raised in the demurrer. The supporting declaration only states that Defendant Kaplan’s counsel merely sent a meet-and-confer email, and counsel failed to respond. (Declaration of Gibson). Section 430.41(a)(3) requires that the meet/confer occur “in person or by telephone,” for the very purpose of avoiding situations like this (letter sent; no response).

 

The hearing on the demurrer is continued to November 1, at 9:00 a.m. in the Law and Motion Department so that the parties may meet and confer “in person or by telephone.” (Code of Civ. Proc. § 430.41.) The demurring party is required to file, no later than 7 days prior to the new hearing date, a code-compliant declaration stating either (1) the parties have met and conferred in person or by telephone and (a) the parties have resolved the objections raised in the demurrer, which shall be taken off calendar or (b) the parties did not reach an agreement resolving the objections raised in the demurrer or (2) the party who filed the pleading subject to demurrer failed to respond to the meet and confer request or otherwise failed to meet and confer in good faith.  If the parties fail to file and serve the Declaration demonstrating compliance with the requirements of Section 430.41, the Demurrer will be stricken as procedurally improper.      

 

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-UDL-00915     JOHN DALY BOULEVARD ASSOCIATES, L.P. vs. ROSALINA

                   DIAZ, et al.

 

 

JOHN DALY BOULEVARD ASSOCIATES, L.P.    TODD ROTHBARD

ROSALINA DIAZ                          DAVID A. BUTLER, JR.

 

 

EDWIN DIAZ’S HEARING ON DEMURRER TO COMPLAINT AND REQUEST FOR JUDICIAL NOTICE

TENTATIVE RULING:

 

The general and special demurrers are OVERRULED. 

 

The three-day notice attached to the complaint complies with the requirements of CCP §1161(2).  The notice provides the name of the entity to whom the rent payment is to be made.  Defendants cite no authority indicating that the name of a business entity is not the name of a “person” within the meaning of the statute. 

 

Defendants also fail to establish that the three-day notice seeks the incorrect amount of back rent.  Pursuant to the lease, defendants agreed to pay rent, in advance, on the first day of each month.  Therefore, the rent due for the period covered by the three-day notice was the full monthly rent of $2,725. 

 

Defendant shall file and serve an answer to the complaint on or before October 24, 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.

 

 

 

 

 

 


POSTED:  3:00 PM

 

© 2017 Superior Court of San Mateo County