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

 

Law and Motion Calendar

Judge: Honorable RICHARD H. DuBOIS

Department 16

 

400 County Center, Redwood City

Courtroom 7A

 

Wednesday, June 21, 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-01967     CHRISTOPHER GRASBERGER, et al. vs. STEWART COOPER, et

                    al.

 

 

CHRISTOPHER GRASBERGER                 GRANT H. BAKER

STEWART COOPER                         JAMES A. LASSART

 

 

MOTION FOR LEAVE TO FILE CROSS-COMPLAINT

TENTATIVE RULING:

 

The unopposed Motion of Defendants Stewart Cooper and Yiqui Wei (“Defendants”) for Leave to File Cross-Complaint, is GRANTED.  Defendants are to file and serve their proposed Cross-Complaint by June 30, 2017.  The proposed Cross-Complaint attached to this motion is not deemed filed.

 

Defendant must bring any related cause of action, i.e. compulsory claims, against Plaintiff in a Cross-Complaint, or such cause of action is waived.  (See C.C.P. sec. 426.30.)  Here, Defendant’ claims against Plaintiff arise out of the same series of occurrences or transactions involved in the Complaint, and therefore are compulsory against Plaintiff. 

 

As to the Bakers, they are not yet parties to this action.  C.C.P. section 428.10(b) provides for a permissive Cross-Complaint to be filed against a person not already a party if the claim in the Cross-Complaint: “(1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the cause brought against him.”  Leave may be granted at any time during the court of the action in the interest of justice.  (C.C.P. sec. 428.50(c).) 

 

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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LineS: 2 & 3

16-CIV-02520     HYEONG GEON LEE vs. DAVID S. HENSHAW, et al.

 

 

HYEONG GEON LEE                        PETER N. HADIARIS

HENSHAW & HENRY PC                     DAVID S. HENSHAW

 

 

2. MOTION FOR TERMINATING SANCTIONS

TENTATIVE RULING:

Plaintiff Hyeong Geon Lee’s Opposition to Defendants David Henshaw and Henshaw & Henry, PC’s Motion for Terminating Sanctions was filed a day late, and Defendants’ Reply brief was served late.  Both parties are admonished to strictly comply with Code Civ. Proc. Sect. 1005 going forward. 

Defendants David Henshaw and Henshaw & Henry, PC’s Motion for Terminating Sanctions is DENIED.  Terminating sanctions are normally reserved for a misuse of the discovery process in the instant case.  Code Civ. Proc. Sect. 2023.030.  What Defendants primarily allege here is discovery abuse (spoliation of evidence), not in this case, but in the underlying lawsuit, during which Plaintiff Lee intentionally deleted emails that were potentially relevant to the asserted alter ego claim in that case, which in part led to the Court ultimately issuing terminating sanctions against Mr. Lee for his continual failure and refusal to comply with discovery obligations and Court Orders.  (See July 7, 2015 Order in N.A. Sales Co., Inc. v. Hae-Suk Lee, et. al., CIV 525758).  It now appears Mr. Lee’s discovery misconduct in the prior case was worse than it appeared at the time the Court issued terminating sanctions, because, although he previously represented to the Court that he deleted the emails prior to that case being filed, he recently testified in deposition in this case that he deleted those emails during the prior lawsuit.  Thus, it appears the declarations he signed in the prior case contained false statements.  While very troubling, the Court declines to issue terminating sanctions against Mr. Lee in this case based on apparent spoliation that took place during the prior lawsuit.  And although Defendants’ motion also argues Mr. Lee failed to preserve text/SMS (“short message service”) messages (the “Kakao-Talk” messages) during the present case, that argument appears (at least on the surface) to be moot, given Mr. Lee’s recent claim that he found the missing phone, has retrieved the alleged lost messages, and is in the process of producing them.  See June 7, 2017 Lee Decl., Parag. 2. 

Rather than constitute grounds for terminating sanctions, Mr. Lee’s recent deposition testimony appears to be a defense to the merits of this malpractice case.  The Complaint, Parag. 8-9, alleges Defendants “negligently defended Lee” in the underlying case by failing to adequately deny the “false” allegation that Lee deleted emails during that case, and “failed to point out [] to the court that deletions that occurred before the filing of the lawsuit could not be used as a basis for terminating his defense…”.  Mr. Lee’s recent testimony appears to strongly rebut the negligence allegations in his Complaint.  Apparently realizing this fact, Plaintiff now indicates in his Opposition he plans to seek leave to amend the Complaint to change the negligence (malpractice) theory to allege Defendants did not properly advise him to preserve electronic documents.  The Court agrees such a change would be a new negligence theory.  However, for the foregoing reason, the Court declines to issue terminating sanctions on these facts. 

Defendants also argue sanctions are warranted because Plaintiff failed to appear at a recent OSC hearing, and has shown little interest in prosecuting this case.  But that fact is not grounds for terminating sanctions at this time. 

 

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.

 

 

3. MOTION FOR LEAVE TO FILE CROSS-COMPLAINT

TENTATIVE RULING:

Defendants David Henshaw’s and Henshaw & Henry, PC’s unopposed Motion for Leave to File a Cross-Complaint is GRANTED.  The proposed Cross-Complaint’s causes of action for breach of contract and quantum merit arise from the same underlying lawsuit.  In the interests of judicial economy, the Court favors the resolution of related claims in the same case.  The Court also favors exercising discretion liberally to permit amendment of pleadings and the assertion of cross-claims.  Nestle v. Santa Monica (1972) 6 Cal. 3d 920, 939.  Particularly “[w]here no prejudice is shown to the adverse party, the liberal rule of allowance prevails.”  Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564; Code Civ. Proc. Sect. 426.50; 428.50(c).  Plaintiff shall file and serve the Cross-Complaint no later than June 30, 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.

 

 



 

9:00

LineS: 4 & 5

17-CIV-00424     SAVONNA AYALA vs. GARY ROSEN, et al.

 

 

SAVONNA AYALA                          WILLIAM S. GINSBURG

GARY ROSEN                             DANIEL J. JUNGWIRTH

 

 

4. MOTION TO STRIKE punitive damages

TENTATIVE RULING:

 

The motion to strike is DENIED.  The complaint alleges facts sufficient to show malice.

 

Pursuant to Civil Code §3294(a) a plaintiff may recover punitive damages in an action for breach of an obligation not arising from a contract where it is proven that the defendant has been guilty of oppression, fraud or malice.  When pleading punitive damages, a plaintiff must state facts from which it can reasonably be inferred that defendant acted with oppression, fraud or malice.  Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166. 

 

Malice is defined as conduct intended to cause injury to the plaintiff or despicable conduct carried on with a willful and conscious disregard for the rights or safety of others. §3294(c)(1).  Conscious disregard is established where the plaintiff shows the defendant was aware of the probable dangerous consequences of his conduct but willfully and deliberately failed to avoid them.  Hoch v. Allied-Signal, Inc. (1994) 24 Cal.App.4th 48.  Oppression is despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.  §3294(c)(2). 

 

The complaint alleges that defendant demonstrated a conscious disregard for the safety and interests of others by voluntarily commencing, and thereafter continuing, to consume alcoholic beverages and/or drugs to the point of intoxication, knowing from the outset that he must thereafter operate a motor vehicle.  It further states that defendant had engaged in this type of conduct on previous occasions and knew the risks that his behavior posed to others.  Despite this knowledge, he deliberately became intoxicated and then proceeded to drive in a reckless manner.  As a result of his intoxication, he lost control of his vehicle, struck and guard rail and collided with plaintiff.  These facts are sufficient to show malice. 

 

While defendant argues that there are no facts to support the conclusion that defendant was intoxicated and that the court does not have to accept conclusions of fact, plaintiff’s allegations are not conclusory.  Plaintiff has alleged the ultimate fact that defendant was intoxicated.  Facts regarding how plaintiff knows defendant was drunk would be evidentiary material which plaintiff is not required to pled.  See Weil & Brown §6:123-125. 

 

Finally, defendant’s reliance on the police report is misplaced.  The grounds for a motion to strike must appear on the face of the pleading or from matter which the court may judicially notice.  Id. at 7:168.  As discussed above, defendant has not established that the traffic collision report is subject to judicial notice.

 

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.

 

 

5. HEARING ON DEMURRER

TENTATIVE RULING:

 

Defendant’s request for judicial notice is GRANTED as to the complaint but DENIED as to the Traffic Collision Report.  Evidence Code §452(d) permits judicial notice of court records.

 

As to the traffic report, defendant states generally that his request is based on Evidence Code §452.  That statute indicates that judicial notice may be take of the following matters: 1) decisional, constitutional and statutory law of the United States or any state 2) regulations and legislative enactments 3) official acts of the legislative, executive and judicial departments of the United States or any state 4) court records 5) rules of court 6) the law of foreign nations 7) facts that are of common knowledge and 8) facts that are not reasonably subject to dispute and which can be immediately and accurately determined by sources of reasonably indisputable accuracy.  None of these provisions appears to apply to the report and defendant does not specify the subdivision on which his request his based. 

 

The general demurrer is OVERRULED.  Defendant does not indicate why the complaint for motor vehicle negligence fails to state a cause of action.  To the extent the demurrer is directed to the prayer for punitive damages, it is procedurally improper.  A general demurrer addresses the sufficiency of a cause of action.  A prayer for punitive damages is a remedy, not a cause of action. 

 

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: 6

17-CIV-00640    KB HOME SOUTH BAY, INC. vs. AMSCO WINDOWS CORP, et al.

 

 

KB HOME SOUTH BAY, INC                 WAKAKO URITANI

AMSCO WINDOWS CORP                     CHARLENE P. ROSACK

 

 

HEARING ON DEMURRER

TENTATIVE RULING:

 

This matter is dropped from calendar at the request of the moving party.

 

 



9:00

Line: 7

CIV535035     VERONICA LOPEZ VS. ANDRE M. LOPEZ

 

 

VERONICA LOPEZ                         DAVID G. FINKELSTEIN

ANDRE M. LOPEZ                         BRIAN PRESTON

 

 

MOTION TO COMPEL COMPLIANCE WITH A JUDICIALLY SUPERVISED SETTLEMENT, ETC.

TENTATIVE RULING:

 

Defendant ANDRE M. LOPEZ’s Motion to Compel Compliance with Judicially Supervised Settlement Agreement is GRANTED pursuant to Code Civ. Proc. §§ 128 and 664.6, but with the modification that Plaintiff’s move-out date, in order to accommodate the minor’s scheduled medical procedure, is modified to be July 31, 2017.  The Settlement Agreement attached as Exhibit B to Defendant’s motion, as modified, is deemed to be executed by the parties.

 

Plaintiff shall pay to Defendant $4,500 as additional rent for the period June 15 through July 31, 2017.

 

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, Ms. Lopez 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: 8

CLJ535922     LCS FINANCIAL SERVICES CORP V ROBERT CORPUZ, ET AL.

 

 

LCS FINANCIAL SERVICES CORPORATION      KATHERINE HEIDBRINK

ROBERT CORPUZ                          PRO/PER

 

 

MOTION FOR SUMMARY OF JUDGMENT/ADJUCTAION OF ISSUES

TENTATIVE RULING:

 

This matter is dropped from calendar at the request of the moving party.

 


 

 

 

 

 


POSTED:  3:00 PM

 

© 2017 Superior Court of San Mateo County