IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA · 4/3/2018 · demurrer and motion to strike the Third Amended Complaint is ... NON-PARTY K1 SPEED, INC.’S NOTICE OF MOTION AND

IINN 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 3

400 County Center, Redwood City

Courtroom 2B

Tuesday, May 29, 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

May 29, 2018 Law and Motion Calendar PAGE 2

Judge: HONORABLE SUSAN GREENBERG, Department 3

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9:00

LINE: 1

16-CIV-00969 DALY CITY PARTNERS I, LP VS. KENNETH RODRIGUES &

PARTNERS, INC., ET AL.

DALY CITY PARTNERS I, LP

KENNETH RODRIGUES & PARTNERS, INC. SCOTT E HENNIGH

HEARING ON DEMURRER TENTATIVE RULING:

W.L. Butler’s (WLB) Demurrer to Defendant and Cross-Complainant Earth Systems Pacific’s

(ESP) 3-26-18 First Amended Cross-Complaint (FACC) is ruled upon as follows:

The Demurrer is OVERRULED as to the Second Cause of Action for express contractual

indemnity. ESP’s FACC alleges that Plaintiff Daly City and WLB entered into written contracts

pursuant to which WLB expressly agreed to indemnify ESP, and that ESP is an intended third-

party beneficiary of the alleged contracts. FACC, ¶ 19. Butler’s argument(s) on Demurrer are

based on evidence (two contracts attached to the Nevens declaration) external to the pleadings,

which the Court cannot consider on Demurrer. The FACC’s short quotation from one of the

alleged contracts does not transform this Demurrer into an evidentiary motion. Further, the

FACC alleges the existence of “one or more written contracts” that form the basis of the express

indemnity claim. For this reason, ESP’s Evidentiary Objection to the Nevens declaration, in its

entirety (Obj. No. 1) is SUSTAINED. Obj. Nos. 2-3 are therefore moot.

The Demurrer to the Third and Fourth Causes of Action for equitable and implied indemnity are

OVERRULED. WLB has not demonstrated these claims are necessarily barred by the economic

loss rule. Further, contrary to WLB’s contention, Daly City’s FAC does allege property damage.

See FAC, ¶17 (alleging “damage to the asphalt”); FAC, ¶19 (alleging “property damage and cost

of repairs”; FAC, ¶46 (seeking damages for “costs to repair the property damaged by the

deficient work”). Further, as WLB notes, implied indemnity may arise either from a contract

(“implied contractual indemnity”) or from pure equitable considerations. WLB argues that ESP,

in seeking implied indemnity, “appears to be relying on equitable considerations … without

citing a contractual basis.” The FACC alleges the existence of contracts between Daly and WLB

that obligate WLB to indemnify ESP. Thus, the FACC’s allegations are sufficient to state a

claim for implied indemnity.

Because the FACC’s Fifth Cause of Action for declaratory relief is predicated on the foregoing

claims for indemnity, the Demurrer to this cause of action is also OVERRULED.

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



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parties.



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9:00

LINE: 2

17-CIV-03882 BANG JA KIM, ET AL. VS. JAMES AHN, ET AL.

BANG JA KIM

JAMES AHN DAVID M. KING

DAVID C. BOLSTAD


Demurrer to the first cause of action is overruled. The Grant Deed in 2008 did not trigger the

statute of limitations. The complaint alleges that Plaintiff did not discover the bases for rescission

(lack of consideration, improper acceptance of ownership, LLC’s inability to transfer property

(See Moving P&A at 5:25 – 6:2)) until 2016. Until that time, the Complaint alleges, Defendant

did not disclose a secret intent to own not just an LLC interest, but a property interest also.

Similarly, delivery of the 2011 Second Amended Operating Agreement did not trigger the statute

of limitations. The Complaint alleges that until 2016, Plaintiff was unaware that Defendant was

asserting an ownership claim to the real property. Because of that, the 2011 agreement, by itself,

did not necessarily alert Plaintiff that a 5 percent interest in the LLC would constitute a “double

interest.”

The Complaint also does not admit that Defendant AHN gave consideration for the grant deed. It

alleges that Defendant purported to waive his commission in exchange for the property interest.

However, it also alleges if Defendant’s 5 percent interest in the LLC constitutes compensation for

his broker services, then he did not actually waive his commission as consideration for the

interest in the property.

Finally, the Complaint sufficiently alleges that Defendant was a member of the LLC in 2008.

Under the 2011 Second Amended Operating Agreement, Defendant’s 5 percent interest in the

LLC was effective as of January 2008.

Demurrer to the second cause of action (rescission of LLC agreement) is overruled. (1) The

allegation from the original complaint (“AHN should have a 5 percent interest in the LLC”) is not

contradicted by the amended pleading. The present complaint alleges that the parties did not

intend to grant Mr. Aim a 5 percent membership in the LLC and a 5 percent interest in the

property. Both allegations are consistent with each other. (2) The statute of limitations argument

fails for the reasons set forth above re: 1st cause of action – The Complaint alleges that AHN

concealed until 2016 his true intent not to hold only 5 percent in the LLC or the property, but

rather 5 percent in both. Accepting the allegation as true, the statute began to run in 2016.

Demurrer to the third cause of action (fiduciary duty) is overruled. The Complaint alleges that

Plaintiffs did not discover Defendant’s true intent until 2016. The first sentence of paragraph 37



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shows that Plaintiff knew the facts of the alleged breach of fiduciary duty in 2004 when Plaintiff

gave the grant deed to Defendant. However, the second sentence of paragraph 37 and other

allegations show that Plaintiff did not suffer damage, or become aware of the damage, until 2016

when AHN made clear that he intended to hold interests not just in the property but the LLC as

well.

Demurrer to the fourth cause of action (breach of duty of good faith) is overruled. The statute of

limitations argument fails for the same reasons set forth above. Under the alleged facts, the

statute of limitations did begin to run until 2016.

Demurrer to the fifth cause of action (breach of SAOA) is overruled. The material terms at issue

are adequately set forth in paragraph 49. Defendant’s Reply argument that Plaintiff fails to allege

when the breach occurred lacks merit; the date of breach is not an element that must be pleaded.

Demurrer to the sixth cause of action (unjust enrichment) is overruled. Defendant’s Reply admits

that Plaintiff could make a claim for restitution if she alleges that the SAOA is void or was

rescinded. (Reply at 8:5-8.) The second cause of action allege a claim for rescinding the SAOA.

If Plaintiff prevails on that claim, then the Agreement is rescinded and Plaintiff may pursue

restitution.

Demurrers to the seventh and eighth causes of action (declaratory relief) are overruled. The

demurrer argues that both causes of action fail because the underlying claims (first, second, fifth

causes of action) fail. The demurrers to those underlying claims, however, are overruled.

The unopposed demurrer to the ninth cause of action (accounting) is sustained.

Defendants James AHN and Jain AHN shall file and serve their respective Answer or Answers no

later than June 19, 2018.

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 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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9:00

LINE: 3

17-CIV-04035 DENNIS MORRONE, ET AL. VS. MICHAEL SEAN GALLAGHER, ET AL.

DENNIS MORRONE

MICHAEL SEAN GALLAGHER WILLIAM C. DRESSER

PETER J. HIRSIG


The Demurrer of Defendants Michael Sean Gallagher, Joshua Fields and Angela Israni

(“Defendants”) to the Second Cause of Action in the Complaint is ruled on as follows:

The demurrer to the Second Cause of Action by Plaintiff Sharon A. Morrone is SUSTAINED

WITHOUT LEAVE TO AMEND. The Complaint does not allege that she observed the

accident, and Plaintiffs do not argue otherwise. Therefore, she fails to allege facts sufficient to

support this claim.

The demurrer to the Second Cause of Action by Plaintiffs Tyler Morrone (“Tyler”) and Dennis

Morrone (“Dennis”) is OVERRULED. The Complaint alleges that Dennis and Tyler are father

and son, respectively, and that each observed the injuries to the other. Accordingly, they allege

facts sufficient to support this claim. (See Rodriguez v. Kirchhoefel (2005) 128 Cal.App.4th 427,

433.) To the extent that Defendants are arguing that Tyler may not recover for observing injuries

to his uncle, David Morrone, the court need not reach this issue at this time because Tyler has

alleged facts sufficient to support this claim based on the allegation that he observed the injuries

to his father.

The demurrer to the Second Cause of Action on the ground that it is duplicative is

OVERRULED. This is not a ground for demurrer under Code of Civil Procedure section 430.10.

Defendants also have not cited any authority to support that a demurrer to a claim for negligent

infliction of emotional distress must be sustained where it is duplicative of a negligence claim.

Defendants are to file and serve an answer by June 18, 2018.

Defendants’ Request for Judicial Notice is GRANTED. (See Evid. Code § 452(d).)

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 Susan L. Greenberg, Department

3.



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9:00

LINE: 4

17-CIV-04035 DENNIS MORRONE, ET AL. VS. MICHAEL SEAN GALLAGHER, ET AL.

DENNIS MORRONE

MICHAEL SEAN GALLAGHER WILLIAM C. DRESSER

PETER J. HIRSIG

MOTION TO STRIKE PUNITIVE DAMAGES TENTATIVE RULING:

The Motion of Defendants Michael Sean Gallagher, Joshua Fields and Angela Israni

(“Defendants”) to Strike Punitive Damages in the Complaint is ruled on as follows:

Defendants’ motion to strike paragraph 15 is DENIED. This paragraph does not specifically

pertain to punitive damages, and is not irrelevant, false or improper matter.

Defendants’ motion to strike the claim for punitive damages in paragraph 20 as alleged by

Plaintiff Sharon A. Morrone is DROPPED as moot in light of the court’s ruling sustaining the

demurrer to this claim.

The remainder of Defendants’ motion to strike the claim for punitive damages in paragraphs 16,

20, 24 and the prayer, is GRANTED WITH LEAVE TO AMEND. Plaintiffs fail to allege facts

sufficient to support oppression, fraud or malice by Defendants. (See Civil Code § 3294.) For

Defendant Michael Sean Gallagher, Plaintiffs have not alleged specific facts from which to

support a conscious disregard of probable injury to others. “[A]llegations of intoxication,

excessive speed, driving with defective equipment or the running of a stop signal, without more,

do not state a cause of action for punitive damages.” (Dawes v. Superior Court (1980) 111

Cal.App.3d 82, 90.) For Defendants Joshua Fields and Angela Israni, Plaintiffs must allege facts

to support their own wrongful conduct to support liability for damages outside of the statutory

limits under Vehicle Code section 17151. (See Veh. Code § 17151(b) [“Nothing in this

subdivision makes an owner, bailee, or personal representative immune from liability for

damages imposed for the sake of example and by way of punishing him for his own wrongful

conduct.”].)

Plaintiffs are to file and serve a First Amended Complaint by June 18, 2018.

Defendants’ Request for Judicial Notice is GRANTED. (See Evid. Code § 452(d).)




parties.



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9:00

LINE: 5

17-CIV-04611 JANET TAPIA VS. JESUS CANCHARI, ET AL.

JANET TAPIA

JESUS CANCHARI PRO/PER

PRO/PER


Defendants JESUS CANCHARI; VICTORIA CANCHARI; MAIRA CANCHARI; EMILI

CANCHARI; and ROSA CANCHARI’s Demurrer to First Amended Complaint is stricken as

procedurally improper. On April 25, 2018, the Court entered an Order stating that Defendants

had failed to file a meet-and-confer declaration that complied with Code Civ. Proc. § 430.41,

which provides: “Before filing a demurrer pursuant to this chapter, the demurring party shall

meet and confer in person or by telephone with the party who filed the pleading that is subject

to the demurrer…”. Defendants were required to file a Code-compliant declaration no later than

7 days prior to the new hearing date of May 29, 2018. Defendant JESUS CANCHARI’s

Declaration, filed on May 22, 2018, states that the only meet-and-confer efforts between the

parties occurred via written correspondence, and not “in person or by telephone”. This is

insufficient, and the demurrer is therefore stricken.




parties.



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9:00

LINE: 6

17-CIV-04659 THE PEOPLE OF THE STATE OF CALIFORNIA VS. MONTGOMERY

-SANSOME, LP, ET AL.

THE PEOPLE OF THE STATE OF CALIFORNIA

MONTGOMERY-SANSOME, LP STEPHEN M. WAGSTAFFE

EDWIN BRADLEY

MOTION FOR LEAVE TENTATIVE RULING:

Defendant LEONARD NORDEMAN’s Motion for Leave to File Cross-Complaint is GRANTED

pursuant to Code Civ. Proc. § 426.50. Defendant is granted leave to file his Cross-Complaint no

later than June 8, 2018.




parties.



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9:00

LINE: 7

18-CLJ-01132 AMERICAN EXPRESS CENTURION BANK VS. HAMIDREZA

KHAZAELI, ET AL.

AMERICAN EXPRESS CENTURION BANK

HAMIDREZA KHAZAELI LINA M. MICHAEL

MOTION TO QUASH TENTATIVE RULING:

Defendant HAMIDREZA KHAZAELI’s unopposed Motion to Quash Service of Summons and

Complaint is GRANTED pursuant to Code Civ. Proc. § 418.10.




parties.



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9:00

LINE: 8

CIV538870 CYNTHIA SMITH VS. A&B PRODUCE, INC, ET AL.

CYNTHIA SMITH

A&B PRODUCE, INC. GREGORY C. CATTERMOLE

MATTHEW J. KRACHT

MOTION FOR JUDGMENT TENTATIVE RULING:

Defendants A&B PRODUCE, INC. and BIRITE FOODSERVICE DISTRIBUTORS’ Motion for

Judgment on the Pleadings is CONTINUED to June 29, 2018. Plaintiff and Defendants’ counsel

are ordered to file supplemental declarations updating the Court on how the Chapter 7 bankruptcy

trustee would like to proceed with this action no later than June 25, 2018.




parties.

POSTED: 3:00 PM

Documents

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA · 4/3/2018 · demurrer and motion to strike the Third Amended Complaint is ... NON-PARTY K1 SPEED, INC.’S NOTICE OF MOTION AND