NOTICE TO ALL COUNSEL

Transcription

1 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN MATEO Law and Motion Calendar Judge: HONORABLE SUSAN GREENBERG Department County Center, Redwood City Courtroom 2B Tuesday, May 8, 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) 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 (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 The Court will expect all exhibits to be tabbed accordingly. Case Title / Nature of Case

2 May 8, 2018 Law and Motion Calendar PAGE 2 LINE: 1 17-CIV ALISON JAGHAB VS. ALBERT J. ELLIOT, ET AL. ALISON JAGHAB ALBERT J. ELLIOT DAVID M. MCKIM RICHARD GARCIA MOTION FOR GOOD FAITH SETTLEMENT Moving party is to appear, in person or by telephone, to inform the court whether defendant PV Holdings was served with the motion.

3 May 8, 2018 Law and Motion Calendar PAGE 3 LINE: 2 17-CIV GRAY DUFFY LLP VS. SUSAN M GOLDBECK, ET AL. GRAY DUFFY LLP SUSAN M. GOLDBECK RICHARD M. WILLIAMS SUSAN M. GOLDBECK MOTION FOR SUMMARY JUDGMENT Plaintiff Gray Duffy, LLP s Motion for Summary Judgment is DENIED. Code Civ. Proc. 437c. Plaintiff s Complaint asserts claims for breach of contract and quantum meruit. A triable issue of fact exists as to the amount of damages owed for Defendants alleged breach of contract, or alternatively, the reasonable value of Williams services for purposes of the quantum meruit claim. See Plaintiff s disputed UMF No. 11; Williams Decl., 15, stating Mr. Williams spent 75 hours on the arbitration. Defendants dispute the amount of damages and the reasonable value of Williams services, including the number of hours Williams spent and the tasks he performed. Defendants note the lack of evidence (for example, itemized invoices) identifying Williams hourly rate and the tasks performed. This factual dispute regarding the amount of damages/reasonable value of Williams services precludes summary judgment because summary judgment/adjudication of a partial cause of action is not permitted. Code Civ. Proc. 437c(f)(1) ( A motion for summary adjudication shall be granted only if it completely disposes of a cause of action... ); see Paramount Petroleum Corp. v. Sup.Ct. (2014) 227 Cal.App.4th 226, 243 (because damages are an element of a breach of contract claim, summary adjudication on only the issue of liability for breach of contract with the amount of damages to be determined later is not permitted). If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule (a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule or any other notice is required as the tentative ruling affords sufficient notice to the parties.

4 May 8, 2018 Law and Motion Calendar PAGE 4 LINE: 3 18-CIV AIT WORLDWIDE LOGISTICS, INC. VS. MONSTER, INC. AIT WORLDWIDE LOGISTICS, INC. MONSTER, INC. JAMES F. LANDRUM KIRK M. HALLAM HEARING ON DEMURRER Defendant MONSTER, INC. s Demurrer to Complaint is SUSTAINED IN PART and OVERRULED IN PART, as follows: SUSTAINED WITH LEAVE TO AMEND as to the First cause of action for breach of contract. A written contract may be pleaded by either (1) setting out the terms of the contract verbatim in the body of the complaint; (2) attaching a copy of the contract; or (3) pleading the legal effect of the contract rather than its precise language. Miles v. Deutsche Bank National Trust Company (2015) 236 Cal.App.4 th 394, 402. Pleading a written contract according to its legal effect requires (1) alleging the making of the contract and then (2) proceeding to allege the substance of its relevant terms. Alvarez v. Nationalstar Mortgage, LLC (2017) 2017 U.S. Dist. LEXIS 46016, at *7; see also 4 Witkin, Cal. Proc. 5 th Pleading 519 (2008) ( this is more difficult, for it requires a careful analysis of the instrument, comprehensiveness in statement, and avoidance of legal conclusions, and it involves the danger of variance where the instrument proved differs from that alleged. ). Plaintiff has not adequately pled the legal effect of its written contract with Defendant in lieu of simply attaching a copy of the relevant documents or setting out their terms verbatim. The Complaint alleges that there are several documents comprising its agreement with Defendant: the Transportation Agreement, the Conditions of Carriage, the bills of lading, and the invoices. The Conditions of Carriage allegedly provide that the terms of any bills of lading are incorporated into the parties contract. (Complaint 7.) However, none of the relevant terms are set adequately set forth, nor it is clear whether the bills of lading differed from one another. Accordingly, the demurrer to this cause of action is sustained with leave to amend. OVERRULED as to the Second cause of action for unjust enrichment. The Court recognizes that there is a split of authority in the First District regarding whether unjust enrichment is a valid, standalone cause of action under California law. Indeed this Court, under different justices, has issued rulings in the past both overruling and sustaining demurrers to unjust enrichment causes of action. The Court, in liberally construing the Complaint in this matter, overrules Defendant s demurrer to this cause of action. Unjust enrichment claims can exist as a separate cause of

5 May 8, 2018 Law and Motion Calendar PAGE 5 action when the claim is grounded in equitable principles of restitution. Hirsch v. Bank of America (2003) 107 Cal. App , Elements of an unjust enrichment cause of action are the receipt of a benefit and [the] unjust retention of the benefit at the expense of another. Lectrodryer v. SeoulBank (2000) 77 Cal.App.4th 723, 726. If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule (a)(1), adopted by Local Rule 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 The proposed order is to be submitted directly to Judge Susan L. Greenberg, Department 3.

6 May 8, 2018 Law and Motion Calendar PAGE 6 LINE: 4 18-CIV COLLEEN KAY CUDD, ET AL. VS. TIFFANY LI, ET AL. COLLEEN KAY CUDD TIFFANY LI ALISON E. CORDOVA CAITLIN T. DIMAGGIO MOTION TO STAY CIVIL PROCEEDINGS BY TIFFANY LI Defendant Li s motion to stay this action is denied. Some discovery against Defendant Li could result in her asserting a Fifth Amendment objection. Defendant Li, however, does not demonstrate why all discovery and other pretrial preparation against her, any other Defendant, or any third party, which would not give rise to a Fifth Amendment objection, should be stayed. If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiffs shall prepare a written order consistent with the Court s ruling for the Court s signature, pursuant to California Rules of Court, Rule , 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.

7 May 8, 2018 Law and Motion Calendar PAGE 7 LINE: 5 18-CLJ LVNV FUNDING LLC VS. LIEN TRAN, ET AL. LVNV FUNDING LLC LIEN TRAN LORI BRODBECK PRO/PER MOTION RE: FOR JUDGMENT ON PLEADINGS This matter is dropped from calendar. Notice of Settlement was filed 4/30/18. If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule (a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule or any other notice is required as the tentative ruling affords sufficient notice to the parties.

8 May 8, 2018 Law and Motion Calendar PAGE 8 LINE: 6 CIV CYNTHIA SMITH VS. A&B PRODUCE, INC., ET AL. CYNTHIA SMITH A&B PRODUCE, INC GREGORY C. CATTERMOLE MATTHEW J. KRACHT MOTION FOR JUDGMENT This matter is continued to 5/29/18 pursuant to Stipulation and Order. If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule (a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule or any other notice is required as the tentative ruling affords sufficient notice to the parties.

9 May 8, 2018 Law and Motion Calendar PAGE 9 LINE: 7 18-CIV COLLEEN KAY CUDD, ET AL. VS. TIFFANY LI, ET AL. COLLEEN KAY CUDD TIFFANY LI ALISON E. CORDOVA CAITLIN T. DIMAGGIO MOTION FOR APPOINTMENT OF GUARDIAN AD LITEM FOR MINOR PLAINTIFFS VIVIENNE LI GREEN AND NIA LI GREEN BY COLLEEN KAY CUDD Plaintiff s Motion for Appointment of Guardian Ad Litem for Minor Plaintiffs Vivienne Li Green and Nia Li Green is GRANTED. In exercising its discretionary powers in granting the motion, the Court hereby appoints Ms. Eileen O Brien ( Ms. O Brien ) as guardian ad litem for minor plaintiffs Vivienne Li Green and Nia Li Green. In weighing all the of facts and circumstances surrounding this appointment, the Court finds that Ms. O Brien is well suited to serve and act as a guardian ad litem for the minor plaintiffs as she is fully qualified to protect the minor's interests in the litigation. Based on the evidence presented, the Court concludes that Ms. O Brien: 1) is a private professional fiduciary; 2) a member of the Private Professional Fiduciary Panel of the San Mateo County Superior Court; 3) has no familial relationship with the children or with any named plaintiff or defendant in the lawsuit; 4) has no financial relationship with Plaintiff or with counsel for Plaintiff; and 5) has agreed and accepted to act in the role of guardian ad litem for the children. The fact that Plaintiff participated in the selection of Ms. O Brien does not mean that she (Plaintiff) has the ability to control Ms. O Brien and the fact that Plaintiff is a co-litigant with the minors should not preclude her from nominating a private professional fiduciary over whom she does not have control, and who will vigorously advocate for the best interest of the children. It should also be noted that opposing parties, Ms. Jihong Li and Defendant Tiffany Li have not identified any reason as to why Ms. O Brien would not be an adequate guardian ad litem and have not nominated or suggested anyone who they would want to be guardian ad litem for the minor plaintiffs. In essence, the opposing parties have done nothing to ensure that the children s best interests would be served in the civil litigation related to the death of their (the children s) father except for making arguments that a guardian ad litem is not necessary at this time or that the matter should be decided by the probate court under the general guardianship proceedings. Therefore, the Court finds that no true conflict exists as it relates to Plaintiff and her selection of a private professional fiduciary to serve as guardian ad litem for the children. The Court also denies Ms. Jihong Li and Defendant Tiffany Li s request to transfer this matter to the probate court as the issue related to the appointment of a guardian ad litem in the pending civil litigation is purely a civil matter and is separate and apart from the guardianship proceedings related to the

10 May 8, 2018 Law and Motion Calendar PAGE 10 ultimate custody and control of the children. If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule (a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule or any other notice is required as the tentative ruling affords sufficient notice to the parties.

11 May 8, 2018 Law and Motion Calendar PAGE 11 LINE: 8 CIV RENEE AMADIO VS. REDWOOD CITY RENEE AMADIO REDWOOD CITY JOHN F VANNUCCI TODD H. MASTER MOTION FOR SUMMARY OF JUDGMENT/ADJUDICATION OF ISSUES The Motion for Summary Judgment/Adjudication brought by defendant City of Redwood City (the City ) is DENIED. The City s Request for Judicial Notice is GRANTED. Objections to Evidence (by Plaintiff). Plaintiff filed an objection to evidence against the declaration of Attorney Rhonda Woo (filed 02/09/18). First, those objections fail to comply with the formatting requirements of CRC (b) because, instead of identifying the specific information to which the objections are made, they combine three exhibits into one single objection. Second, the objections have been rendered moot by the supplemental declarations provided by the City which address the foundation and authentication issues raised in Plaintiff s objections. As such, Plaintiff s objections to evidence are DENIED. Objections to Evidence (by the City). The disposition of the City s objections to evidence (f: 04/27/18) is as follows: Objection No. 1: Objection No. 2: Objection No. 3: Objection No. 4: Objection No. 5: Objection No. 6: Objection No. 7: Objection No. 8: OVERRULED. SUSTAINED subsequent remedial measures. OVERRULED. SUSTAINED lack of expert methodology. OVERRULED. OVERRULED. SUSTAINED lack of expert methodology. OVERRULED. Whether a Triable Issue of Fact Exists re the Alleged Dangerous Condition. The case of Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, provides a step-by-step analysis of how a court should view a sidewalk crack case. The major steps in that analysis include the following:

12 May 8, 2018 Law and Motion Calendar PAGE 12 There is no duty on a landowner (including a public entity) to repair trivial defects or maintain the land in absolutely perfect condition. Assessment of danger does not rest solely on the depth or tape measure of a crack it concerns the various circumstances surrounding the condition such as broken pieces, jagged edges, debris, grease or water concealing the condition, visibility, whether at the time of the accident, a plaintiff s familiarity with the location, whether prior accidents have occurred, and other mitigating or aggravating factors. The trivial defect doctrine is not an affirmative defense it is an element of the case that the plaintiff must plead and prove. The trivial defect doctrine can be determined as a matter of law without necessarily being submitted to a jury at least when reasonable minds can only reach one conclusion. (This exists as a check valve to eliminate lawsuits that seek to hold landowners to an unreasonable absolute perfection standard.) The first step of the analysis is to assess the type and size of the defect. If a sizable defect exists, the second step of the analysis is to consider the additional factors of weather, lighting, and visibility at the time of the accident, the existence of debris or obstructions, and the plaintiff s knowledge of the area. While several courts have found cracks between 1-inch and 1.5 inches to be trivial as a matter of law, when the crack begins to stretch beyond 1-inch, courts become more reluctant to find the defect trivial as a matter of law. In terms of the first step of the analysis set forth in Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559 the size and type of the defect the evidence presented in this case is somewhat sparse. There is the expert declaration of Bluer stating that [p]hotography reviewed depict a differential of approximately 2 inches (Bluer Decl. (f: 04/20/18), p. 2:28) and there is a declaration from Plaintiff herself stating that the differential was approximately two inches (Amadio Decl. (f: 04/20/18), p. 1:26-28). The City has objected to the Bluer declaration and the declaration by Plaintiff. As to the issue of the height of the sidewalk split, those objections have been overruled. Thus, there is evidence that the sidewalk split was approximately two inches. The City offers no competing evidence to suggest that the sidewalk split was any less than two inches. On summary judgment, [t]he moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2017) 10:225, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. The City fails to produce evidence of the size of the sidewalk split at issue. As such, the City fails to establish that the defect was trivial at the first

13 May 8, 2018 Law and Motion Calendar PAGE 13 step of the analysis, which moves the analysis to the second step consideration of other factors like weather, lighting, visibility, existence of debris or obstructions, and Plaintiff s knowledge of the area. The City argues these factors in a way that confuses the legal standard. Specifically, the City argues that the incident occurred in broad daylight and on a clear day between 9 a.m. and noon suggesting that the incident is one that Plaintiff could have avoided. However, the circumstantial factors like weather, lighting, visibility, etc. all stem from the underlying consideration of whether the danger presented by the condition is reasonably foreseeable. See Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559. For example, if a trivial condition exists but still causes a harm because an unexpected weather condition exacerbates that risk, then the foreseeability of the risk presented by that condition declines. So, the very argument the City is making that the incident occurred in broad daylight during normal hours actually cuts against the argument the City is trying to make that the danger presented by the condition was trivial. Indeed, the facts here suggest that the Plaintiff was being especially careful (because she was working to help her mother navigate the terrain) and yet still injured herself. As such, the City has not met its burden to establish that the condition at issue was trivial as a matter of law. Whether a Triable Issue of Fact Exists re Causation and Damages. On summary judgment, [t]he moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact [citations] If the moving party carries this burden, it causes a shift, and the opposing party is then subject to its own burden of production to make a prima facie showing that a triable issue of material fact exists [citations] A prima facie showing is one that is sufficient to support the position of the party in question. No more is called for. [Citation.] Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2017) 10:225-10:225.2, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, (additional citations omitted). While the City has produced medical records indicating that: there was [n]o evidence of ligamentous tear and when an MRI of Plaintiff s ankle taken about two months after the incident was compared with an MRI of Plaintiff s ankle from about 5.5 years prior to the incident, the doctor notes found no significant internal change. Woo Decl. (f: 02/09/18), Ex. C. Plaintiff s only opposition to this evidence is a statement that: Plaintiff has a doctor that will testify, at trial, that this caused the strained tendon. Opp. At p. 20:21-22 (emphasis added). Such

14 May 8, 2018 Law and Motion Calendar PAGE 14 a statement does not meet the burden to show a triable issue of material fact with respect to the medical records. However, Plaintiff has introduce other evidence of damages, namely, Plaintiff produces a declaration that she felt pain immediately and went to the doctor because the injury did not get better. Vannucci Decl. (f: 04/20/18), Ex. 1 thereto, pp. 33: and 45:17-46:5. This evidence presents a triable issue of fact on the issue of damages. Whether a Triable Issue of Facts Exists re Constructive Knowledge. The parties concede that the City did not have any actual knowledge of the alleged dangerous condition in this case, so the only item at issue is whether the City had constructive knowledge. The Government Code addressing constructive knowledge of a dangerous condition by a public entity is as follows: (b) A public entity had constructive notice of a dangerous condition only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character. On the issue of due care, admissible evidence includes but is not limited to evidence as to: (1) Whether the existence of the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate (considering the practicability and cost of inspection weighed against the likelihood and magnitude of the potential danger to which failure to inspect would give rise) to inform the public entity whether the property was safe for the use or uses for which the public entity used or intended others to use the public property and for uses that the public entity actually knew others were making of the public property or adjacent property. Gov t Code 835.2(b). The City produces evidence in the form of a declaration from the City Clerk stating that no other claim or civil lawsuit has ever been presented related to sidewalk deviations at [the location in question] over the past five years. Decl. of Aguilar (f: 02/09/18) 7. That evidence goes to the issue of actual notice. The statute on constructive notice suggests something more an adequate inspection system. See Gov t Code 835.2(b)(1). The City produces no evidence of regular inspections or any system that was in place to uncover dangerous conditions. As such, the City has not met its burden of production to show prima facie evidence that it did not have constructive knowledge of the condition at issue. Plaintiff attempts to present evidence to show that the City did have constructive notice of this issue, namely, the expert declaration of Claudio Bluer stating: There is no indication this condition appeared suddenly so it was present for a substantial time. Decl. of Bluer (f: 04/20/18), p. 3:3. The City has objected to this evidence, and the Court has sustained that objection for lack of methodology from an expert. However, the facts available about the size of the sidewalk split

15 May 8, 2018 Law and Motion Calendar PAGE 15 indicate that it was approximately two inches. Without the expert declaration, there is no evidence presented by either party to precisely indicate how that sidewalk split developed i.e. whether it occurred from tree roots (over a period of time) or whether it occurred from adjacent construction (sudden onset) or whether it occurred from some other cause entirely. On summary judgment, the facts available must be construed liberally in favor of the opposing party and strictly against the moving party. D Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21. In light of the lack of any evidence to suggest a sudden onset, the appropriate interpretation on summary judgment is that the sidewalk split developed over time. In light of the City s failure to meet its burden of production on the issue of constructive knowledge, and in light of the procedural requirement to interpret the facts available in a manner favorable to the opposing party, the Court cannot grant summary judgment on the issue of constructive knowledge. Negligence. The City argues that liability of a public entity is governed by statute, which is the basis of the arguments raised above. Gov. Code 815(a); see Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 566. As such, the negligence cause of action and the premises liability cause of action in this case follow the same standard and the resolution of the negligence claim should match the outcome of the premises liability claim. If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule (a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule or any other notice is required as the tentative ruling affords sufficient notice to the parties. POSTED: 3:00 PM