Docstoc

Superior Court_ State of California - Download Now DOC

Document Sample
Superior Court_ State of California - Download Now DOC Powered By Docstoc
					            SUPERIOR COURT, STATE OF CALIFORNIA
                  COUNTY OF SANTA CLARA
              Department 1, Honorable James P. Kleinberg Presiding
                                Paula Bastian, Courtroom Clerk
                                 Joanne Rocha, Court Reporter
                          191 North First Street, San Jose, CA 95113
                     Telephone: 408.882.2110 - Facsimile: 408.882.2493
                  To contest the ruling, call (408) 808-6856 before 4:00 P.M.


                LAW AND MOTION TENTATIVE RULINGS
                     DATE: 12/15/09  TIME: 9 A.M.
             PREVAILING PARTY SHALL PREPARE THE ORDER
                      (SEE RULE OF COURT 3.1312)

LINE #      CASE #            CASE TITLE                                RULING
LINE 1   107CV081857 Unifund CCR Partners v          Order of Examination/Bench Warrant
                     Serpa
LINE 2   108CV125293 American Builders &             Order of Examination
                     Contractors Supply v
                     Allpro Roofing
LINE 3   108CV130351 Jonathan Neil &        Order of Examination
                     Associates v Bo Peep
LINE 4   109CV133257 Mohawk Servicing v Ram Order of Examination
LINE 5   109CV140821 All In One Poster      Order of Examination
                     Company v Nexus
                     Merchant Services
LINE 6   109CV143833 Ryerson & Son, Inc. v    Order of Examination
                     Manufacturing Consortium
LINE 7   109CV138827 Loral Space &           Click on LINE 7
                     Communications v
                     Globalstar-Space
                     Communications
LINE 8   109CV147232 Bigge Crane & Rigging v Click on LINE 8 for ruling
                     General Development
                     Industries
LINE 9   109CV147737 Hiramanek v Hiramanek Click on LINE 9 for ruling
LINE 10 109CV152390 Campos v Sunnyvale               Click on LINE 10 for ruling
                    School District
LINE 11 108CV113903 Lucio v Germain’s                Defendant’s Motion for summary judgment
                    Technology Group                 unopposed and GRANTED
LINE 12 106CV057438 Neeka Accountancy v              Plaintiff’s Motion to set aside dismissal of
                    David                            November 5, 2008 DENIED
LINE 13 107CV085287 MBNA America Bank v              Petition to confirm arbitration award
                    Nguyen                           unopposed and GRANTED
LINE 14 108CV114888 Haughton v Haughton       Off calendar
LINE 15 108CV121050 Aztecsoft Limited v ILoop Motion to be relieved as counsel unopposed
                    Mobile, Inc.              and GRANTED
           SUPERIOR COURT, STATE OF CALIFORNIA
                 COUNTY OF SANTA CLARA
             Department 1, Honorable James P. Kleinberg Presiding
                              Paula Bastian, Courtroom Clerk
                               Joanne Rocha, Court Reporter
                        191 North First Street, San Jose, CA 95113
                   Telephone: 408.882.2110 - Facsimile: 408.882.2493
                To contest the ruling, call (408) 808-6856 before 4:00 P.M.


                 LAW AND MOTION TENTATIVE RULINGS
LINE 16 109CV131901 Hart v Hart                   Off calendar as Case dismissed; dismissal
                                                  review scheduled for January 28, 2010 at
                                                  10:00 A.M.
LINE 17 109CV134045   Redwood City Electric v Defendant/Cross-complainant’s Application
                      R.C. Benson & Sons          for a right to attach order and writ of
                                                  attachment DENIED
LINE 18 109CV135638   Washington v Unity Care Motion to be relieved as counsel GRANTED
                      Group
LINE 19 108CV122577   Hanafy v Ghazali            Off Calendar
LINE 20 109CV138637   Beneficial California Inc v Off Calendar
                      Gonzalez
LINE 21 109CV151291   Chew v Equity One, Inc. Continued to February 9, 2010
LINE 22 109CV151961   Ascarie v Willoughby        Off Calendar
LINE 23 108CV115575   4920 Corp. v Ashworth       Plaintiff’s Motion for preference in trial
                                                  setting DENIED
LINE 24 109CV132693 Bank of America v              Plaintiff’s Motion for summary judgment
                    Mybusinessinterios.Com         unopposed and GRANTED
Calendar line 1

                  - oo0oo -
Calendar line 2

                  - oo0oo -
Calendar line 3

                  - oo0oo -
Calendar line 4

                  - oo0oo -
Calendar line 5

                  - oo0oo -
Calendar line 6

                  - oo0oo -
Calendar line 7

Case Name: Loral Space and Communications Holdings Corporation v. GlobalStar- Space
Telecommunications Closed Joint Stock Company
Case No.: 1-09-CV-138827

Defendant GlobalStar- Space Telecommunications (Defendant)’s motion to quash the
summons and complaint for lack of personal jurisdiction is GRANTED. Plaintiff has not
presented any new or additional evidence to establish property holdings within California, the
requisite minimum contacts, and that the exercise of jurisdiction would satisfy notions of fair
play and substantial justice. The Satellite Services Agreement, even assuming that it qualified
as a general intangible, does not by itself constitute “minimum contacts.”

Further, the traditional notions of fair play and substantial justice weigh in favor of granting
this motion. The court in considering the fair play and substantial justice requirement must
consider: (1) the burden on the defendant of defending an action in the forum; (2) the forum
state’s interest in adjudicating the dispute; (3) the Plaintiff’s interest in obtaining relief; (4) the
interstate or international judicial system’s interest in obtaining the most efficient resolution of
controversies; and (5) the states’ or nations’ shared interest in furthering fundamental
substantive social policies. (Id.) These considerations sometimes serve to establish the
reasonableness of jurisdiction upon a lesser showing of minimum contacts than would
otherwise be required. (Id.) The unique burdens placed on a foreign national defending
themselves locally should have significant weight in assessing the reasonableness of a local
court’s exercise of personal jurisdiction. (Asahi Metal Industry Co. LTD. v. Cheng Shin
Rubber Industrial Co., Ltd. (1987 480 U.S. 102, 114.).

Here, the burden on Defendant is high because it will be forced to defend Plaintiff’s
enforcement action in this country. California does not have a particularly strong interest in
adjudicating this enforcement action involving a foreign corporation and an out of state party.
Russia has a strong interest in the enforcement of its own judgments. Therefore, the burden to
Defendant, to which the court must give significant weight in assessing whether the exercise of
jurisdiction would be fair, militates against the court finding that an assertion of jurisdiction
here would be reasonable.


                                               - oo0oo -
Calendar line 8

Case Name: Bigge Crane and Rigging Co. v. General Development Industries
Case No.: 1-09-CV-147232

The request for judicial notice of cross-defendant Gonsalves and Stronck Construction
Company (Gonsalves) is DENIED. The fact that the first amended cross-complaint (FACC)
was filed on August 31, 2009 is irrelevant to the court in deciding whether these causes of
action are properly pled. Further, the fact that the first cause of action in the FACC is for
breach of a written subcontract entered into between Gonsalves and General Development
Industries, Inc. (GDI) is also irrelevant to the court in resolving the issues raised in this
demurrer. Finally, the fact that the subject written subcontract contains an express indemnity
provision is irrelevant. The existence of the indemnity provision by itself is immaterial to the
court in resolving this demurrer since the indemnity provision itself does not address the
intentions of the parties with regard to scope and meaning of the provision.

The demurrer to the ninth cause of action for implied contractual indemnity and tenth cause of
action for equitable indemnity and apportionment is OVERRULED. It would be premature for
the court to determine the intention of the parties with respect to the meaning and intended
scope of the express indemnity provision in a demurrer. The court needs to consider
evidentiary declarations to determine the intent of the parties and whether the subject matter
contained in these causes of action is precluded by the express indemnity provision. Further,
Regional Steel Corp. v. Sup. Ct. (1994) 25 Cal.App.4th 525, a case relied upon by Gonsalves,
involved a summary judgment proceeding where evidence was considered by the court.

The demurrer to the eleventh cause of action for declaratory relief is OVERRULED. This
cause of action properly states a cause of action for declaratory relief by alleging that a dispute
exists between the parties concerning their respective contractual rights and obligations under
the written subcontract, and requesting a declaration of those rights and obligations from the
court. (See Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 606.)


                                             - oo0oo -
Calendar line 9

Case Name: Hiramanek v. Hiramanek, et al.
Case No.: 1-09-CV-147737

Defendants’ Kamal Hiramanek and Perviz Kapadia’s (Defendants’) request for judicial notice
is GRANTED.

Plaintiff’s “Counter Reply Memorandum” filed December 11, 2009 is not considered as it was
submitted without leave of court.

Defendants’ demurrer to the first through tenth causes of action in plaintiff Roda Hiramanek’s
(Plaintiff) amended complaint is SUSTAINED without leave to amend. Defendants’ exclusive
concurrent jurisdiction argument is well taken. The division of property relating to Plaintiff
appears to have first been dealt with in the family law action and a prior civil action in which
the subject stipulation agreement was reached and filed. The agreement itself provides that it
“shall remain fully effective and binding on the parties even after dismissal of the court action
and may be enforced either by filing an appropriate motion in this action or a separate
independent action.” (See Defendants’ Request for Judicial Notice, Exhibit B at par. 17, p.
7:23-25.) Therefore, causes of action one through ten involve the same settlement agreement
reached in the prior actions. Accordingly, the appropriate forum to attack the validity of the
stipulated agreement is with the family law division of this court. Plaintiff’s argument that the
family action is no longer pending is not well taken. Even though the family law action may
have since been dismissed, the stipulated agreement provides that it shall remain fully effective
and binding on the parties even after dismissal, and that objections to the agreement can be
made by motion before the court. Additionally, the proper method for Plaintiff to take in
setting aside this agreement is to raise a motion before the family law division to set aside the
stipulation based upon a showing of error or unfairness. (See Harris v. Spinali Auto Sales, Inc.
(1966) 240 Cal.App.2d 447, 453.)

Defendants’ demurrer to Plaintiff’s twelfth cause of action for enforcement of a debt is
OVERRULED. It is not clear from the record that the twelfth cause of action for enforcement
of a debt (promissory note) is covered by the stipulation agreement.

Defendants’ demurrer to Plaintiff’s eleventh cause of action for violation of the Uniform
Fraudulent Transfer Act is OVERRULED. In order to state a cause of action under the UFTA,
a Plaintiff must allege the following three elements: (1) Plaintiff is a creditor; (2) debtor
transferred an asset; and (3) debtor harbored the intent to hinder, delay, or defraud the creditor
at the time the transfer was made. (Civil Code section 3439.04, subdivision (a).) A demurrer
for uncertainty will only be sustained when the complaint is so inadequate that the defendant
cannot reasonably determine what issues must be admitted or denied, or what counts or claims
are directed against him. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.)
This cause of action alleges that Plaintiff was a creditor, Defendants’ were debtors, and that the
debtor intended to defraud them. (See FAC, count 11 at p.5 of 8.) This pleading is more than
sufficient to allow Defendants to answer the complaint.
Defendants’ demurrer to Plaintiff’s thirteenth cause of action for invasion of privacy is
OVERRULED. Invasion of privacy requires a party must establish each of the following
elements: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy under
the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy.
 (See People v. Wiener (1994) 29 Cal.App.4th 1300, 1306.) This cause of action alleges that
Defendants intruded into her private place and stole her mail, confidential files, and financial
records. It is further alleged that the Defendants eavesdropped on her conversations. Finally,
Plaintiff alleges that these matters were improperly disclosed to the public and that she suffered
harm as a result. Defendants’ argument that the complaint fails to allege what pieces of mail
and conversations were intercepted and disseminated, and to whom they were disseminated is
not well taken. This is evidentiary material which is not required to be alleged in the complaint
in order to state a cause of action for invasion of privacy.

Defendants’ demurrer to Plaintiff’s fourteenth cause of action for defamation is SUSTAINED
with 30 days’ leave to amend. This cause of action fails to properly plead a cause of action for
defamation. Plaintiff fails to allege: (1) the specific words or defamatory material; (2) the
defamatory material was communicated to a third person; and (3) the defamatory material was
either defamatory on its face or was understood by the third party to be defamatory.

Defendants’ demurrer to Plaintiff’s fifteenth cause of action for “Damages from UD Action” is
SUSTAINED with 30 days’ leave to amend. Plaintiff has not alleged a legally recognized
cause of action which would entitle her to the damages sought.

Plaintiff’s request for attorney fees and costs incurred in opposing this demurrer is DENIED.
Defendants’ demurrer had legal merit and was not frivolous. Plaintiff does not cite authority to
support her request for attorney’s fees and costs. Plaintiff’s request to file a supplemental
complaint is DENIED without prejudice to her filing a formal noticed motion pursuant to Code
of Civil Procedure §464 (a).



                                            - oo0oo -
Calendar line 10

Case Name: Campos v. Sunnyvale School District
Case No.: 1-09-CV-152390

The request for judicial notice of respondent Sunnyvale School District (Sunnyvale) is
GRANTED. (See Evidence Code Section 452, subdivision (d) (1).)

Sunnyvale’s demurrer to the petition for writ of administrative mandate filed by petitioner
Ferrolo “Bernie” Campos (Campos) is SUSTAINED with 30 days’ leave to amend. The writ
of mandate is appropriate for reviewing the final orders and decisions of an administrative
agency exercising quasi-judicial powers. (See Grant v. Board of Medical Examiners (1965)
232 Cal.App.2d 820, 826.) Here, Campos is not challenging the hearing held before the
arbitrator or the arbitration decision. Rather, Campos is challenging Sunnyvale’s compliance
with the terms of the Collective Bargaining Agreement. Campos makes clear in his papers that
he received a fair administrative hearing, Sunnyvale exceeded its contractual rights because of
its untimely rejection of the arbitration award, and he is challenging Sunnyvale’s conduct
which Campos believes exceeded its contractual authority. (See Memorandum of Points and
Authorities in Support of Petition for Administrative Writ of Mandamus, p.5:13-16.)
Therefore, this matter as pled is not appropriate for mandamus review. Additionally, Campos
has an adequate remedy at law in the form of a cause of action for breach of contract. In sum,
Campos has failed to show that he lacks an adequate remedy at law. (See Code of Civil
Procedure section 1086.) Campos is given leave to amend this action to allege non-mandamus
based causes of action.



                                           - oo0oo -
Calendar line 11

                   - oo0oo -
Calendar line 12

                   - oo0oo -
Calendar line 13

                   - oo0oo -
Calendar line 14

                   - oo0oo -
Calendar line 15

                   - oo0oo -
Calendar line 16

                   - oo0oo --
Calendar line 17

                   - oo0oo -
Calendar line 18

                   - oo0oo -
Calendar line 19

                   - oo0oo -
Calendar line 20

                   - oo0oo -
Calendar line 21

                   - oo0oo -
Calendar line 22

                   - oo0oo -
Calendar line 23

                   - oo0oo -
Calendar line 24

                   - oo0oo -
Calendar line 25

                   - oo0oo -

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:99
posted:3/1/2010
language:English
pages:29