IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN MATEO

(1)

IN AND FOR THE COUNTY OF SAN MATEO Law and Motion Calendar

Judge: HONORABLE MARIE S. WEINER Department 02

400 County Center, Redwood City Courtroom 2E

Wednesday, April 21, 2021

IF YOU INTEND TO APPEAR ON ANY CASE ON THIS CALENDAR YOU MUST DO ONE OF THE FOLLOWING:

1. EMAIL Dept2@Sanmateocourt.org BEFORE 4:00 P.M.

CONTEMPORANEOUSLY COPIED TO ALL PARTIES OR THEIR COUNSEL OF RECORD. IF BY EMAIL, IT MUST INCLUDE THE NAME OF THE CASE, THE CASE NUMBER, AND THE NAME OF THE PARTY CONTESTING THE TENTATIVE RULING

2. YOU MUST CALL (650) 261-5102 BEFORE 4:00 P.M. AND FOLLOW THE INSTRUCTIONS ON THE MESSAGE.

3. 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 or 2 and 3 will result in no oral presentation. N.B. Notifying CourtCall with your intent to appear is not an alternative to notifying the court. N.B. Notifying CourtCall with your intent to appear is not an alternative to notifying the court.

At this time, all appearances will be by CourtCall. No personal appearances will be allowed. To contact CourtCall, visit https://courtcall.com/ or call (888) 882-6878. Fee waivers are available.

Failure to comply with these rules will result in no oral presentation.

TO ASSIST THE COURT REPORTER, the parties are ORDERED to: (1) state their name each time they speak and only speak when directed by the Court; (2) not to interrupt the Court or anyone else; (3) speak slowly and clearly; (4) use a dedicated land line if at all possible, rather than a cell phone; (5) if a cell phone is absolutely necessary, the parties must be stationary and not driving or moving; (6) no speaker phones under any circumstances; (7) provide the name and citation of any case cites; and (8) spell all names, even common names.

(2)

18-CIV-02980 STEPHEN L. PORTER, ET AL. VS. ORHAN TOLU, ET AL.

STEPHEN L. PORTER

ORHAN TOLU ANJALI KULKARNI JOSEPH W. CARCIONE DEMURRER OF CROSS—DEFENDANT MAHA NABER TO FOURTH AMENDED

CROSS—COMPLAINT OF ORHAN TOLU TENTATIVE RULING:

Naber’s Demurrer to the Fourth Amended Cross-Complaint is SUSTAINED WITHOUT LEAVE TO AMEND. Requests for judicial notice of discovery responses is DENIED. Request for judicial notice of pleadings filed in this same case is MOOT, as there is not a need to “judicial notice” and the Court can consider all filings in this action.

Tolu’s objection that the demurrer is untimely is OVERRULED. First, it appears Tolu served the Fourth Amended Complaint on Naber personally, but not on Naber’s counsel of record – as discussed in the reply brief. There is no filed Proof of Service showing that Tolu served Naber’s counsel with the 4ACC. It is improper to serve papers on a party when the serving party knows that the opposing party is represented by counsel. See CRC 1.21(a). Further, even where a Demurrer is late-filed, the Court has discretion to consider it, which the Court has chosen to do here. Jackson v. Doe (2011) 192 Cal.App.4th 742, 750.

Plaintiffs’ First Amended Complaint asserts against Tolu claims for (1) breach of contract; (2) fraud; (3) conversion; and (4) unjust enrichment. Tolu’s Fourth Amended Complaint against Naber asserts four causes of action: (1) indemnity; (2) apportionment of fault; (3) contribution; and (4) negligence.

The Fourth Amended Cross-Complaint alleges no wrongful conduct of Naber. There are no substantive facts alleged that would support a finding that Naber is a “co-tortfeasor”, for purposes of equitable indemnity or contribution claims. There are no facts of any written agreement for indemnity either.

The claims for “apportionment of fault” and for negligence are based upon negligence. Yet, the pleading fails to allege that Naber engaged in any specific act that constitutes negligence.

(3)

Judge: HONORABLE MARIE S. WEINER, Department 2

________________________________________________________________________ Tolu cannot obtain indemnification or apportionment or contribution from Naber based on Naber’s alleged negligence, as a matter of law. Indemnification principles apply to “joint tortfeasors.” Claims for indemnity (including contribution and apportionment) apply to “concurrent tortfeasors.” American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d at 595, 597–598. The doctrine is applied to multiple tortfeasors to apportion loss in relation to their relative culpability. Here, the First Amended complaint alleges causes of action against Tolu for (1) breach of contract; (2) fraud; (3) conversion; and (4) unjust enrichment. The only “torts” asserted against Tolu are fraud and conversion. Thus, Tolu must be seeking indemnity from Naber for liability Tolu may ultimately have to Plaintiffs for the alleged fraud and conversion. But as a matter of law, Tolu cannot obtain indemnity for fraud or conversion from Naber, even assuming Naber were negligent.

As fraud and conversion are intentional torts, Tolu cannot obtain indemnity from Naber, even assuming Naber were negligent. Allen v. Sundean, 137 Cal.App.3d 216, 225-26 (1982). A party who commits an intentional tort is not entitled to indemnity from a negligent party. Sundean, at 225-26; Weidenfeller v. Star and Garter, 1 Cal.App.4th 1, 6 (1991) (recognizing that comparative equitable indemnity does not allow intentional tortfeasor to shift loss to negligent tortfeasor).

If the tentative ruling is not contested, it shall become the order of the Court. Naber shall prepare and submit 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.

(4)

18-CIV-05455 CITY OF PACIFICA VS. MILLARD W. TONG, ET AL.

CITY OF PACIFICA

MILLARD W. TONG ALBERT TONG PRO/PER

CITY OF PACIFICA’S MOTION FOR DETERMINATION OF DISPUTED EVIDENTIARY AND LEGAL ISSUES AFFECTING THE DETERMINATION OF COMPENSATION RE: TRANSFERABLE DEVELOPMENT RIGHTS

TENTATIVE RULING:

Pursuant to request of counsel for all parties, hearing on this motion is CONTINUED to May 5, 2021 at 2:00 p.m. as there is a companion/competing motion for determination set for hearing that date.

(5)

________________________________________________________________________ 2:00

LINE: 3

19-CIV-02501 TODD YANCEY VS. EDWIN BLUE, ET AL.

TODD YANCEY

EDWIN BLUE PRO/PER ANTHONY WEIBELL

DEFENDANTS IRA SERVICES’ AND EDWIN BLUE’S MOTION FOR A PROTECTIVE ORDER PURSUANT TO CODE CIV. PROC. § 2033.080 REGARDING PLAINTIFF TODD YANCEY’S 3RD, 4TH, 5TH, 6TH, AND 7TH SETS OF REQUESTS FOR ADMISSION TENTATIVE RULING:

Defendants’ Motion for Protective Order against excess requests for admissions propounded by Plaintiff is GRANTED IN PART AND DENIED IN PART.

The Motion for Protective Order as to Plaintiff’s requests for admissions sets three, four and five is MOOT, as Defendants have already served responses to those requests for admissions. The time for Plaintiff to have brought any motion to compel as to those responses/objections has already expired.

The Motion for Protective Order as to Plaintiff’s requests for admissions sets six and seven is GRANTED as to all such requests for admissions other than any requests to admit the genuineness of documents. The Court finds that, contrary to the representations mde in a declaration submitted under section 2033.050, the number of admission requests is unwarranted.

Further, the Court finds that this litigation in not so complex that excess written discovery is necessary or warranted, and that the Court views document production and depositions as the most effective means of discovery for adjudication. Accordingly, henceforth no party may propound more than 35 requests for admissions (other than as to the authenticity of documents) total, without prior court order after demonstration of need and a showing that other means of discovery would be less efficient. If a party has already propounded at least 35 requests for admissions, then no further requests may be propounded without prior court approval.

If the tentative ruling is uncontested, it shall become the order of the Court. Defendants shall prepare and submit 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.

(6)

19-CLJ-03751 MUSIC LOVERS, INC. VS. STEVE PORTER, ET AL.

MUSIC LOVERS, INC.

STEVE PORTER MALCOLM LEADER-PICONE

MOTION OF DEFENDANT STEVE PORTER FOR AN ORDER TO VACATE AND SET ASIDE DEFAULT JUDGMENT

The motion for relief from default pursuant to CCP §473(d) is DENIED. Defendant has not established that substitute service of the summons and complaint is void. The POS and declaration of Scott Feely establish that defendant was properly served pursuant to CCP §415.20 by leaving the summons and complaint with his housekeeper. Given the nature and duration of her employment, Ms. Angulo is a competent member of defendant’s household for purposes of substitute service. See Bein v. Brechtel-Jochim

Group, Inc. (1992) 6 Cal.App.4th_1387.

The motion for relief based on extrinsic fraud is also denied. Defendant has not established that he was denied the opportunity to present a defense by a falsified proof of service.

Finally, to the extent defendant’s reply brief contends he is entitled to relief under CCP §473.5, this argument was not identified in the notice of motion or memorandum of points and authorities in support of the motion. Moreover, it is not timely raised as CCP §473.5 provides that the notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of two years after entry of a default judgment or 180 days after service of a written notice that the default or default judgment has been entered. Notice of entry of the default judgment was served on defendant by mail on July 27, 2020. [While the Proof of Service indicates the notice was mailed to David Porter rather than Steve Porter, the service address is his address of record. The request for default was correctly mailed to Steve Porter at the same address.] This motion was filed on March 1, 2021, more than 180 days later.

(7)

________________________________________________________________________ 2:00

LINE: 5

20-CIV-00448 LIN HTIKE NAY VS. MARVIN TATE, ET AL.

LIN HTIKE NAY

MARVIN TATE ERIC T. HARTNETT YOSEF PERETZ MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT BY LIN HTIKE NAY TENTATIVE RULING:

Plaintiff’s Motion for Leave to File a First Amended Complaint is GRANTED pursuant to Cal. Code of Civ. Proc. §§473, 576. Plaintiff shall file and serve the First Amended Complaint on or before April 30, 2021.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for 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.

(8)

20-CIV-02261 MONTGOMERY SANSOME LP VS. NATHALIE ANNE GACHOT, ET AL.

MONTGOMERY SANSOME LP

NATHALIE ANNE GACHOT STEPHEN S. SAYAD PRO/PER MONTGOMERY SANSOME LP’S DEMURRER TO CROSS-COMPLAINT

Plaintiff and Defendant Montgomery Sansome LP’s Demurrer to Gachot’s Cross-Complaint, brought solely on the basis of a contractual arbitration clause, is OVERRULED, without prejudice to any party filing a proper motion to compel arbitration.

Montgomery Sansome LP shall file and serve its Answer to the Cross-Complaint or its motion to compel arbitration on or before May 7, 2021.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Gachot 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.

(9)

________________________________________________________________________ 2:00

LINE: 7

20-CIV-02261 MONTGOMERY SANSOME LP VS. NATHALIE ANNE GACHOT, ET AL.

MONTGOMERY SANSOME LP

NATHALIE ANNE GACHOT STEPHEN S. SAYAD PRO/PER

CROSS-DEFENDANT STEPHEN SAYAD’S MOTION AND SPECIAL MOTION TO STRIKE THIRD THROUGH NINTH CAUSES OF ACTION IN CROSS-COMPLAINT OF NATHALIE GACHOT AND REQUEST FOR SANCTIONS UNDER CODE OF CIVIL PROCEDURE SECTION 128.7

Sayad’s SLAPP Special Motion to Strike portions of Gachot’s Cross-Complaint is DENIED as to the third, fourth, fifth, sixth, seventh, and eighth cross-causes of action; and is GRANTED as to the ninth cross-cause of action.

Third through Eighth Causes of Action

Sayad attacks the cross-claims against him for indemnity, declaratory relief, apportionment of fault, and contribution – all based upon the theory that Sayad and Gachot were co-counsel for the client Montgomery Sansome and that Sayad committed attorney malpractice in regards to the underlying litigation. Pleadings, statements and writings “in connection with” civil litigation are covered by the anti-SLAPP statute. Neville v. Chudacoff (2008) 160 CA4th 1255, 1266. However, a client's action against his or her attorney, “whether pleaded as a malpractice claim, a breach of fiduciary duty claim, or any other theory of recovery,” is not subject to the anti-SLAPP statute “merely because some of the allegations refer to the attorney's actions in court.” Hylton v. Frank E.

Rogozienski, Inc. (2009) 177 CA4th 1264, 1275; Sprengel v. Zbylut (2015) 241

CA4th 140, 151-155.

Other claims grounded in allegations of attorney malpractice also fall outside of the anti-SLAPP statute. In Chodos v. Cole, a case relied on by Gachot, the defendant filed a cross-complaint against attorney Hillel Chodos and another attorney for malpractice. 210 Cal.App.4th 692, 696 (2012). Chodos then cross-complaint against other attorneys for indemnification for any malpractice award against him because, he alleged, those other attorneys had rendered advice concerning the proceeding at issue in the malpractice claim. Id. The attorneys successfully moved to strike Chodos’s cross-complaint under the anti-SLAPP statute. Id. The Court of Appeal reversed the trial court’s ruling, finding

(10)

malpractice. Id. at 703-704. The court explained that:

The claim for indemnity is still grounded in allegations of attorney malpractice. Indemnity and malpractice may be different causes of action, but that does not mean that the claim for indemnification based on malpractice should be treated differently than a malpractice claim for purposes of whether the anti-SLAPP statute is applicable. . . . .

All of the authorities hold that a “garden variety” claim for attorney malpractice (Jespersen, supra, 114 Cal.App.4th at p. 632, 7 Cal.Rptr.3d 715) is not covered by the anti-SLAPP statute. Those authorities should apply here, and there should be no distinction between cases against a former attorney and cases such as this one. In determining whether the anti-SLAPP statute applies, the court must focus on the act which defines the “principal thrust or gravamen” of the cause of action (City of Cotati v.

Cashman (2002) 29 Cal.4th 69, 79, 124 Cal.Rptr.2d 519, 52 P.3d 695) that is

the basis of the cause of action. Because a client's action against an

attorney for a breach of duty by an act of malpractice is not subject to

the anti-SLAPP statute, logically Chodos's action based on a breach of

duty by an act of malpractice likewise should not be subject to the

anti-SLAPP statute. The conduct of an attorney for purposes of the anti-anti-SLAPP statute is the same as to the case of a client's claim against a former attorney and as it is to the claim here for indemnification. If an act of malpractice by an attorney alleged by a client is not petitioning or free speech under the anti-SLAPP statute, that same act for the same client should not be deemed to be such petitioning or free speech solely because it is the basis of a claim for indemnity by someone other than the client.

Id. at 703-705.

Here, the third through eighth causes of action in the Cross-Complaint are all predicated on the possibility that Gachot would be liable for legal malpractice for the underlying action. These claims are thus grounded in allegations of attorney malpractice and, under Chodos, they should not be treated differently than a malpractice claim for purposes of whether the anti-SLAPP statute is applicable.

(11)

________________________________________________________________________

paragraph in the Cross-Complaint, but the third through eighth causes of action only seek relief from Sayad in the event Gachot is found liable for professional negligence for the underlying action. These claims do not seek relief based on Sayad’s representation of MSLP in this action.

Moreover, none of the cases Sayad relies on involves legal malpractice claims brought by clients against their attorneys. Briggs v. Eden Council for Hope &

Opportunity, discussed by MSLP on page 7 of its Motion, concerns landlords

suing a nonprofit organization on the ground that the organization allegedly provided false information and made defamatory statements to tenants. 19 Cal.4th 1106, 1109-1110 (1999). Peregrine Funding, Inc. v. Sheppard Mullin

Richter & Hampton LLP, discussed on page 8 of the Motion, involves claims by

investors against a bankruptcy trustee that represented entities that were used to perpetrate a Ponzi scheme in which the investors lost millions. 133 Cal.App.4th 658, 665-66 (2005). Genethera, Inc. v. Troy & Gould Professional Corp., discussed on page 9 of the Motion, was an action brought by litigants against opposing attorneys. 171 Cal.App.4th 901, 905 (2009).

In its Reply, Sayad relies on Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153 in support of its argument that a claim for equitable indemnity arising out of an attorney’s statements made in connection with an official proceeding are subject to an anti-SLAPP motion. See Reply at 3:9-26. However,

Fremont also does not involve legal malpractice claims and is therefore

distinguishable from this action. Rather, Fremont concerned an in-house counsel’s wrongful termination action against his former employer and the employer’s cross-complaint for breach of fiduciary duty and equitable indemnification arising from the employee’s statements to the Insurance Commissioner that resulted in an adversary proceeding against the employer by the Insurance Commissioner. Fremont Reorganizing Corp., 198 Cal.App.4th at 1159. The Court of Appeal affirmed the trial court’s ruling granting the employee’s motion to strike as to the equitable indemnification claim. Id. at 1159-60, 1176-77. The court first held that cases finding the anti-SLAPP statute inapplicable in actions by clients against their own attorneys for breach of professional duties were distinguishable. Id. at 1170. The “gravamen or principal thrust” of those cases, the court found, did not concern a statement made in connection with litigation, but instead concerned some other conduct constituting a breach of professional duty during the course of litigation. Id. In

Fremont, however, the claims were based on statements the former employee

made to the insurance commissioner when he was no longer in-house counsel for the employer, and thus he was not acting on behalf of his former employer at that time, nor was the employer alleging that the former employee had

(12)

The Court does not need to reach the litigation privilege issue raised by Sayad. As the court found in Chodos, section 47(b), which sets forth the litigation privilege, is “not coextensive with the first prong of the anti-SLAPP statute.”

Chodos, 210 Cal.App.4th at 706. “If the privilege is applicable, it would be

considered under the second prong of the anti-SLAPP statute – likelihood of success on the merits – only if the activity was protected under the first prong of the anti-SLAPP statute.” Id.; see also Flatley v. Mauro, 39 Cal.4th 299, 323 (2006) (litigation privilege is “relevant to the second step in the anti-SLAPP analysis in that it may present a substantive defense a plaintiff must overcome to demonstrate a probability of prevailing”). The Chodos court thus found that it did not need to reach the litigation privilege issue since it concluded that the activity at issue was not protected under the first prong of SLAPP. Chodos, 210 Cal.App.4th at 706.

Ninth Cause of Action for Intentional Interference with Contract

The ninth cause of action for intentional interference with contract is based on allegations that Sayad intended to interfere with the work performed by Gachot for MSLP when he criticized the decision to bring the underlying action to partners, agents, and employees at MSLP. CC, ¶¶ 17, 42. Gachot contends this conduct led to termination of the contract by MSLP. Id. Sayad acquired the “voluminous” legal work conducted by MSLP after MSLP terminated Gachot. Id., ¶ 17. At the time Sayad made the comments to MSLP and its agents/employees, Sayad was also MSLP’s attorney, and the underlying action was still pending. Id., ¶ 13-14, 18.

The ninth cause of action is similar to Taheri Law Group v. Evans (2008) 160 Cal.App.4th 482. In that case, the Taheri Law Group brought a lawsuit against another attorney, alleging that the attorney improperly solicited its client. Id. at 485. Taheri asserted causes of action for intentional interference with prospective economic advantage and intentional interference with business relations against the defendant attorney. Id. The Court of Appeal affirmed the trial court’s ruling granting defendant’s anti-SLAPP motion, finding that Taheri’s causes of action were not exempted from the anti-SLAPP statute. Id. at 487, 490. The court explained that the “substance” of the statement or conduct from which Taheri’s causes of action arise was “in essence advice by a lawyer on a pending legal matter,” advice which included recommending Taheri’s

(13)

________________________________________________________________________

advice by Sayad on what was a pending legal matter at the time Sayad made the comments. His comments were critical of the decision to bring the underlying action and his intent in making the comments was to interfere with the work performed by Gachot on the underlying action. Thus, Sayad has met his initial burden in showing that the ninth cause of action arises out of protected activity. The burden then shifts to Gachot to show a probability of prevailing on the merits of the claim. (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group), Ch. 7(II)-A, § 7:500.)

Gachot has the burden of showing that there is admissible evidence that, if credited, would be sufficient to sustain a favorable judgment on her ninth cause of action. McGarry v. University of San Diego (2007) 154 CA4th 97, 108. As Sayad notes, Gachot has not provided any admissible evidence in support of her ninth cause of action. Reply at 5:3-5, 21-22. The only evidence she provides in support of her Opposition to the motion to strike is a memorandum from Sayad to MSLP regarding the litigation privilege. The memorandum, however, is not admissible since Gachot has not filed any declarations authenticating it. Moreover, though the memorandum appears relevant to Gachot’s indemnification claims, it does not appear relevant to the conduct at issue for the ninth cause of action.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Gachot shall prepare a written order and proposed judgment 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.

(14)

21-CIV-00485 RAJESH KUMAR, ET AL. VS. BAILA FLOORS

RAJESH KUMAR

BAILA FLOORS ROBERT N. WEAVER

PETITION TO RELEASE MECHANIC'S LIEN BY RAJESH KUMAR AND SHOBHA KUMAR TENTATIVE RULING:

The unopposed Petition for Release from Claim of Mechanic’s Lien is GRANTED. The subject property located at 951 Broadway in Belmont, California is released from the mechanic’s lien recorded by Respondent Baila Floors on January 22, 2018 in the amount of $1,160.60.

Petitioner has met the burden of proving compliance with the statutory requirements relating to the contents and service of the Petition, set forth at Cal. Civ. Code § 8480 et seq. The motion is unopposed by the lien claimant. As a result, the lien claimant has failed to carry its burden of demonstrating the validity of the lien.

Petitioner’s request for attorney’s fees is GRANTED in the amount of $6,300 pursuant to Civ. Code § 8488(c). The Court finds that Mr. Weaver’s hourly fee is reasonable based on his years of experience as an attorney and the prevailing rates for similar work in San Mateo County. The time expended by Mr. Weaver was reasonably spent in light of the work performed. The request for costs is GRANTED in the amount of $766.75.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Petitioner shall prepare a written order and proposed judgment 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.