SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 3, Honorable William Elfving Presiding
JeeJee Vizconde, Courtroom Clerk
Jeanie Alma, Court Reporter
191 North First Street, San Jose, CA 95113
Telephone: 408. 882.2130
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW AND MOTION TENTATIVE RULINGS
DATE: FEBRUARY 10, 2015 TIME: 9 A.M.
PREVAILING PARTY SHALL PREPARE THE ORDER
(SEE RULE OF COURT 3.1312)
LINE #
CASE #
CASE TITLE
RULING
LINE 1
114CV269640 C. Schaupp, et al. v. J.
Cohen, et al.
SEE TENTATIVE RULING BELOW.
LINE 2
114CV270429 S. Lai v. IP-Semantics
LLC
SEE TENTATIVE RULING BELOW.
LINE 3
114CV271546 J. Harel v. Spieker
Companies Inc., Richard
Tod Spieker, et al.
SEE TENTATIVE RULING BELOW.
LINE 4
114CV272782 S. Shah v. SFG Income
Fund VI, LLC(s), et al.
The Demurrer to the Complaint is
SUSTAINED WITHOUT LEAVE TO
AMEND.
The Motion to Strike in GRANTED
WITHOUT LEAVE TO AMEND.
LINE 5
114CV261381 S. Leija v. Indian Health
Center, et al.
SEE TENTATIVE RULING BELOW.
LINE 6
114CV264469 T. Craft v. Regional
Medical Center of San
Jose, et al.
Defendant’s Motion to Compel Discovery
Responses is GRANTED. The deadline for
the verified responses, without objections,
and the documents is twenty (20) days from
service of the Order. The matters set forth in
Defendant’s Request for Admissions are
deemed admitted. Plaintiff is ordered to pay
monetary sanctions to Defendant in the
amount of $1,140.00.
LINE 7
114CV268757 SummerWinds Garden
Centers of California, Inc.
v. Pacific Gas and Electric
Company, et al.
The Motion for Continuance of the Deadline
to File a Motion to Contest the Application
for Good Faith Determination is GRANTED.
The deadline is continued to April 20, 2015.
LINE 8
111CV212365 L. Morin v. Wells Fargo
Bank, N.A., et al.
REASSIGNED to Department 21.
LINE 9
112CV234053 American Express Bank,
FSB v. K. Ho
REASSIGNED to Department 21.
LINE 10 113CV248114 V. Nguyen, et al. v.
REASSIGNED to Department 21.
Pinnacle Law Group LLP,
et al.
SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 3, Honorable William Elfving Presiding
JeeJee Vizconde, Courtroom Clerk
Jeanie Alma, Court Reporter
191 North First Street, San Jose, CA 95113
Telephone: 408. 882.2130
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW AND MOTION TENTATIVE RULINGS
LINE 11 113CV250927 Tinker Federal Credit
Union v. S. Weinstein
REASSIGNED to Department 21.
LINE 12 114CV259324 R. Borja v. N. Gan
REASSIGNED to Department 21.
LINE 13 111CV214032 The Board of Trustees of
CA State University v.
Niles Bolton Associates,
Inc., et al.
Appearance required.
LINE 14 115CV276251 A. Martins v. Palo Alto
Appearance required.
Greenhouse Homeowners
Association
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LINE 19
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Case Name: Caleb Schaupp, et al. v. Joline Faye Cohen, et al.
Case No.:
1-14-CV-269640
This wrongful death action arises from a motor vehicle accident in which decedent
Michael Schaupp (“Michael”) sustained fatal injuries. (Complaint, ¶¶ 10, 12.) Plaintiffs Caleb
Schaupp and Denise Schaupp (“Plaintiffs”) allege that defendant Joline Faye Cohen (“Cohen”)
struck Michael’s motorcycle while departing from her workplace, the Lupin Lodge, in her Ford
Explorer. (Id., ¶¶ 9-10, 20.) Michael was ejected from his motorcycle, and Cohen fled the
scene of the accident. (Id., ¶¶ 10-11.) Defendants Lupin Heights, Inc. (“LHI”) and Lupin
Naturist Club Ltd. (collectively, “Lupin”) own and/or manage the Lupin Lodge, and Cohen
was their employee acting in the scope of her employment at the time of the accident. (Id., ¶¶
6-7, 14-15.) Lupin was aware for some time prior to the accident that Cohen had a history of
driving recklessly within the Lupin Lodge. (Id., ¶ 18.) Lupin continued to employ Cohen
despite her documented history of reckless driving, substance abuse, and erratic behavior. (Id.,
¶ 43.)
On August 19, 2014, Plaintiffs filed this action for: (1) wrongful death (against all
defendants); (2) survival action (against all defendants); (3) negligence (against Cohen); (4)
negligence (against Lupin); (5) employer’s vicarious liability (against Lupin); and (6) punitive
damages (against all defendants).
On December 18, 2014, Cohen filed the instant motion to strike the punitive damage
allegations in the complaint. On January 9, 2015, LHI filed a motion for joinder to Cohen’s
motion.
I. Joinder
LHI’s motion for joinder is DENIED. The motion was not timely served before the
hearing on Cohen’s demurrer. (See Code Civ. Proc., § 1005, subd. (b) [moving papers shall be
served 16 court days before the hearing, increased by 5 calendar days if served by mail within
California]; Frazee v. Seely (2002) 95 Cal.App.4th 627, 636-637 [trial court erred in granting
untimely joinder to summary judgment motion]; Lerma v. County of Orange (2004) 120
Cal.App.4th 709, 718-719 [trial court erred in permitting joinder because the notice of joinder
was not timely served].) In addition, LHI has already filed an answer. (See Adohr Milk
Farms, Inc. v. Love (1967) 255 Cal.App.2d 366, 371 [“a defendant can move to strike a
complaint only before he has answered it and not afterward”].)
II. Request for Judicial Notice
Cohen’s request for judicial notice of filings in the related felony action against her is
GRANTED. (Evid. Code, § 452, subd. (d).) To the extent that the request is granted, however,
the Court takes judicial notice of the existence and content of these documents only, and not of
the truth of statements contained therein. (See Sosinsky v. Grant (1992) 6 Cal.App.4th 1548,
1564-1568 [a court may take judicial notice of the existence and content of each document in a
court file, but cannot take judicial notice of the truth of statements or factual findings
therein].)
III. Motion to Strike
Cohen argues that Plaintiffs fail to allege malicious conduct in support of their claim
for punitive damages. (See Civ. Code, § 3294, subd. (c) [malice supporting a claim for
punitive damages requires intent to injure or despicable conduct carried out in conscious
disregard of a person’s safety].) Plaintiffs contend that the allegation that Cohen fled the scene
of the accident is adequate to support a claim for punitive damages because Cohen
“presumably saw and was aware that she had caused a serious accident,” but left Michael
“dying on the road” without pulling over to help him or alert authorities, making a “conscious
decision … to leave the scene of the accident rather than stay and render aid” to Michael.
(Opp., pp. 4-5.)
Cohen’s actions under these circumstances may indeed support a claim for punitive
damages. (See Pelletti v. Membrila (1965) 234 Cal.App.2d 606, 612-613 [finding in a
contributory negligence case that hit-and-run driving is “the grossest type of misconduct,
which in our view provides direct evidence of the wanton state of mind of the defendant at the
time of the accident and specific proof of his willingness to expose others to the probability of
injury”]; see also Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308, 1319 [noting that the
trial court had awarded punitive damages in an automobile accident case where the defendant
was convicted of fleeing the scene of an injury accident but was found not guilty of driving
under the influence].) However, none of these asserted facts are included in the complaint,
which depends upon the bare allegation that Cohen fled the scene of her accident with Michael.
While hit-and-run driving may support a claim for punitive damages in combination with other
circumstances, Plaintiffs’ complaint as currently pleaded does not provide the detail necessary
to support a finding of malicious conduct. (Cf. Pelletti v. Membrila, supra, 234 Cal.App.2d at
pp. 611-612 [“Defendant’s conduct contained the following elements: (1) intoxication; (2)
speed excessive for the time and place and condition of the driver, as indicated by the
testimony on swerving and by 116 feet of skid marks; (3) gross inattentiveness or gross
incapacity in not seeing a pedestrian directly under a street light until 35 feet away; (4) flight
from the scene …. The concatenation of these factors provided sufficient basis to submit the
issue of wilful misconduct to the jury.”].)
Cohen’s motion is accordingly GRANTED WITH 10 DAYS’ LEAVE TO AMEND.
The following language is hereby stricken from the complaint as to Cohen:
-“PUNITIVE DAMAGES” (Complaint, caption, p. 1, ll. 11-12.)
-paragraphs 52-55 (Complaint, p. 8, l. 27-p. 9, l. 12.)
-paragraph 2 of the prayer for relief (Complaint, prayer for relief, p. 9, l. 19.)
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Case Name: Shang Lai v. IP-Semantics LLC, et al.
Case No.:
1-14-CV-270429
This is a business dispute involving defendant and cross-complainant IP-Semantics
LLC (“IP”); its former business associate, plaintiff and cross-defendant Shang Lai (“Lai”); and
Lai’s company, cross-defendant Gigasource. On September 10, 2014, Lai filed this action for
breach of contract and related claims against IP. On November 7, 2014, IP cross-complained
against Lai and Gigasource (collectively, “Cross-Defendants”), asserting claims for: (1) breach
of contract (against Lai); (2) misappropriation of trade secrets (against Cross-Defendants); (3)
conversion (against Cross-Defendants); (4) intentional interference with prospective economic
advantage (against Cross-Defendants); (5) breach of covenant of good faith and fair dealing
(against Lai); (6) fraud by intentional misrepresentation (against Lai); (7) fraud by concealment
(against Lai); (8) intentional misrepresentation (against Lai); (9) negligent misrepresentation
(against Lai); (10) unconscionability (against Lai); (12) unfair competition (against CrossDefendants); and (13) declaratory relief (against Cross-Defendants). 1
On December 18, 2014, Cross-Defendants demurred to the first through ninth and
twelfth through thirteenth claims in the cross-complaint on the grounds that each of these
causes of action fails to state a claim (Code Civ. Proc. (“CCP”), § 430.10, subd. (e)) and the
first cause of action fails to state whether the contract at issue is written, oral, or implied by
conduct (CCP, § 430.10, subd. (g)). Cross-Defendants also moved to strike IP’s answer and
cross-complaint on the ground that they were filed as a single document in violation of CCP
section 428.40. (CCP, § 436, subds. (a) and (b).) On January 27, 2015, IP filed papers in
opposition to both motions.
I. Motion to Strike
Cross-Defendants contend that IP’s answer and cross-complaint should be stricken
because they were filed as a single document 2 in violation of CCP section 428.40, which
requires that a cross-complaint be a “separate document.”
To avoid confusion from the integration of cross-claims with affirmative defenses,
section 428.40 requires that a cross-complaint be complete and sufficient in itself, unaided by
averments of the answer. (See Luse v. Peters (1933) 219 Cal. 625, 630.) Here, IP’s crossclaims each incorporate the allegations of the entirety of IP’s answer/cross-complaint,
including affirmative allegations pleaded in support of IP’s affirmative defenses. Thus, IP’s
cross-complaint violates both the letter and the intent of section 428.40, and Cross-Defendants’
motion to strike both versions of IP’s combined answer/cross-complaint is GRANTED WITH
10 DAYS’ LEAVE TO AMEND.
1
Although the cross-complaint’s caption reflects that it includes an eleventh cause of action for
unjust enrichment, the body of the cross-complaint does not include any such claim or an
eleventh cause of action.
2
Specifically, IP filed two copies of its combined answer/cross-complaint, captioning one
version as the “answer” and one version as the “cross-complaint.”
Although it need not do so in light of this ruling, the Court will address CrossDefendants’ demurrer to avoid the need for multiple rounds of pleadings and motions. In
doing so, the Court will assume that IP intended to support its cross-claims with the allegations
contained in the general “facts” section of its answer/cross-complaint in combination with the
allegations contained in the cross-claims themselves.
II. Demurrer to the First Cause of Action for Breach of Contract and the Fifth Cause of Action
for Breach of the Implied Covenant of Good Faith and Fair Dealing
The demurrer to the first cause of action is SUSTAINED WITH 10 DAYS’ LEAVE
TO AMEND for failure to state a claim. (See Heritage Pacific Financial, LLC v.
Monroy (2013) 215 Cal.App.4th 972, 993 [written contract must be pleaded by its terms set out
verbatim or by its legal effect, with the substance of the relevant terms alleged].) While the
cross-complaint sets forth alleged breaches of the parties’ agreement, all of the relevant terms
of the agreement are not evident from these allegations. Furthermore, although IP contends
that the agreement at issue is attached to Lai’s complaint, the cross-complaint does not so
allege.
The demurrer to the fifth cause of action is also SUSTAINED WITH 10 DAYS’
LEAVE TO AMEND, since a claim for breach of the implied covenant of good faith and fair
dealing requires the plaintiff to allege the terms of the underlying contract. (See Guz v. Bechtel
National, Inc. (2000) 24 Cal.4th 317, 349-350.)
III. Demurrer to the Second Cause of Action for Misappropriation of Trade Secrets
In the second cause of action, IP references both the breach of a “written agreement
whereby Lai promised to protect confidential information” (Cross-Complaint, ¶ 33) and Lai’s
“misappropriation of trade secrets” (id., ¶ 37).
Again, to the extent that this claim is premised upon Lai’s asserted breach of contract,
IP fails to set forth the terms of the contract at issue. (See Heritage Pacific Financial, LLC v.
Monroy, supra, 215 Cal.App.4th at p. 993.)
To the extent that the claim is truly one for trade secret misappropriation, IP alleges
only that certain categories of information were “confidential,” which is inadequate to state a
claim on this theory. (See Civ. Code § 3426.1, subd. (d) [“‘Trade secret’ means information
…that: (1) Derives independent economic value … from not being generally known to the
public…; and (2) Is the subject of efforts that are reasonable under the circumstances to
maintain its secrecy.”]; Hirel Connectors, Inc. v. DOD of the United States (C.D. Cal., Apr. 14,
2003, No. CV 01-11069 DT (BQRx)) 2003 U.S. Dist. LEXIS 28852, *27-34 [complaint must
identify trade secrets and include allegations that the plaintiff derived independent economic
value from them and made reasonable efforts to maintain their secrecy].) Particularly given
that IP combines contractual and trade secret theories of liability in a single claim, it is
impossible to determine which categories of information IP alleges are trade secrets as opposed
to information that Lai was contractually obligated not to disclose.
The demurrer to the second cause of action for misappropriation of trade secrets is
accordingly SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.
IV. Demurrer to the Third Cause of Action for Conversion
The demurrer to the third cause of action for conversion is SUSTAINED WITH 10
DAYS’ LEAVE TO AMEND. (See IB Melchior v. New Line Productions, Inc. (2003) 106
Cal.App.4th 779, 792 [“Conversion requires interference with tangible rather than intangible
property. [Citation.] Interference with intangible property would constitute plagiarism or
misappropriation.”]; Cross-Complaint, ¶ 41 [alleging that IP converted “providers and
customers” and “confidential information”].) Again, to the extent that this claim arises from
Lai’s alleged breach of contract, IP fails to plead the terms of the contract at issue.
V. Demurrer to the Fourth Cause of Action for Intentional Interference with Prospective
Economic Advantage
The demurrer to the fourth cause of action is SUSTAINED WITH 10 DAYS’ LEAVE
TO AMEND. To state a claim for intentional interference with prospective economic
advantage, IP must identify the specific relationship or relationships disrupted by CrossDefendants and plead facts establishing a probability of future economic benefit to IP
associated therewith. (See Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th
1134, 1164 [plaintiff “must allege the existence of an economic relationship with some third
party that contains the probability of future economic benefit to the plaintiff”]; see also Am.
Rena Int’l Corp. v. Sis-Joyce Int’l Co. (9th Cir. 2013) 534 F. App’x. 633, 636 [claim requires
“the existence of at least one specific economic relationship between plaintiffs and third parties
that may economically benefit plaintiffs”].) Here, IP alleges that Lai signed a contract with
“CETECOM” and “concealed design wins such as Lexense win [sic],” but does not explain its
own relationship to these entities. (Cross-Complaint, ¶ 12.)
VI. Demurrer to the Sixth Through Ninth Causes of Action for Fraud and Negligent
Misrepresentation
The demurrer to the sixth through ninth causes of action is SUSTAINED WITH 10
DAYS’ LEAVE TO AMEND. Fraud and negligent misrepresentation must be pleaded with
particularity and by facts that show how, when, where, to whom, and by what means the
representations were tendered. (See Charnay v. Cobert (2006) 145 Cal.App.4th 170, 185, fn.
14.) IP’s allegations lack this detail.
VII. The Twelfth Cause of Action for Unfair Competition
The demurrer to the twelfth cause of action is SUSTAINED WITH 10 DAYS’ LEAVE
TO AMEND. (See Krantz v. BT Visual Images, LLC (2001) 89 Cal.App.4th 164, 178 [where
claim for “relief under the unfair competition law (Bus. & Prof. Code, §17200 et seq.)” is
based upon conduct alleged in support of preceding claims for relief, it will “stand or fall
depending on the fate of the antecedent substantive causes of action”].)3
VIII. The Thirteenth Cause of Action for Declaratory Relief
The demurrer to the thirteenth cause of action for declaratory relief is SUSTAINED
WITH 10 DAYS’ LEAVE TO AMEND. Based on the allegations of the cross-complaint as
currently pleaded, the Court finds that declaratory relief is not “necessary or proper at the time
under all the circumstances.” (See Code Civ. Proc., § 1061; Cal. Ins. Guar. Ass’n v. Super. Ct.
(Jakes at the Shore, Inc.) (1991) 231 Cal.App.3d 1617, 1624 [the object of the declaratory
relief statute is to afford a new form of relief where needed and not to furnish a litigant with a
second cause of action for the determination of identical issues]; Cardellini v. Casey (1986)
181 Cal.App.3d 389, 396 [claim for declaratory relief inappropriate where the rights of the
complaining party “have crystallized into a cause of action for past wrongs” and “no
continuing relationship exists to justify a declaration of future rights”]; Otay Land Co. v. Royal
Indem. Co. (2008) 169 Cal.App.4th 556, 562563 [on demurrer, courts will evaluate whether the
factual allegations of a complaint for declaratory relief reveal that an actual controversy exists
between the parties; determination that declaratory relief is not necessary or proper under the
circumstances is discretionary].)
IX. Request for Judicial Notice
Cross-Defendants’ request for judicial notice, submitted with their reply papers, is
DENIED. Email correspondence between the parties is not an appropriate subject of judicial
notice.
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3
While Cross-Defendants’ demurrer does not address the tenth cause of action for
“unconscionability,” this claim is duplicative of the twelfth cause of action to the extent that it
is cognizable. (See Jones v. Wells Fargo Bank (2003) 112 Cal.App.4th 1527, 1539
[“unconscionability” is generally a defense to the enforcement of a contract; noting, however,
that “California’s unfair competition statute may create an affirmative cause of action for
unconscionability”].)
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Case Name: Harel v. Sprieker Companies, Inc., et al.
Case No.:
1-14-CV-271546
After defendant Co-Operative Adjustment Bureau, Inc. (“COAB”) filed an answer to
the complaint, plaintiff Jean Claude Harel (“Plaintiff”) filed the first amended complaint
(“FAC”), alleging that COAB is a suspended corporation. Plaintiff moves to strike COAB’s
answer on the ground that it is not filed in conformity with the law. (See Code. Civ. Proc.,
§ 436, subd. (b).)
Plaintiff requests judicial notice of the Secretary of State’s Business Entity Detail for
COAB, but does not make the request in a separate document as required by California Rules
of Court (“CRC”), rule 3.1113(l). Moreover, judicial notice “is always confined to those
matters which are relevant to the issue at hand.” (See Gbur v. Cohen (1979) 93 Cal.App.3d
296, 301 [“Gbur”].) This record shows COAB’s status as of November 7, 2014, but its status
before it filed the answer on November 14, 2014, is immaterial. Thus, Plaintiff’s request for
judicial notice is DENIED.
In opposition, COAB requests judicial notice of a small claims judgment, but the
request does not comply with CRC, rules 3.1113(l) and/or 3.1306(c) (requiring copies of the
documents to be filed with the court or otherwise made available at the hearing) and the
judgment is not relevant (see Gbur, supra, at p. 301). COAB’s request for judicial notice is
accordingly DENIED.
Plaintiff argues that the answer should be stricken because COAB’s corporate status is
suspended. A corporation cannot defend itself against a lawsuit while the Franchise Tax Board
has suspended its corporate status for failure to pay taxes, subject to revivor upon the
corporation’s application and payment of delinquent taxes to the Franchise Tax Board. (Rev. &
Tax. Code, § 23301; Grell v. Laci Le Beau Corp. (1999) 73 Cal.App.4th 1300, 1306.) A
motion to strike an answer may be granted where the Secretary of State’s certificate shows that
the defendant’s corporate powers are suspended for failure to pay taxes. (The AlhambraShumway Mines, Inc. v. Alhabra Gold Mine Corp. (1957) 155 Cal.App.2d 46, 50-51.) COAB
submits a declaration stating that the Secretary of State revived its active status as of
January 13, 2015, but such disputable evidence is improper and cannot be considered on a
motion to strike. (See Mediterranean Exports, Inc. v. Super. Ct. (1981) 119 Cal.App.3d 605,
615-616 & fn.6 [evidence other than the Secretary of State’s records is improper on a motion to
strike].) Moreover, COAB’s assertion that this motion is moot because the FAC supersedes the
complaint is unavailing because this is a motion to strike the answer, not the complaint. That
being said, Plaintiff has not submitted a certificate showing that COAB’s status is suspended
for failing to pay taxes, or that it was suspended when it filed the answer. Plaintiff therefore has
not shown that COAB lacks the capacity to defend such that its answer should be stricken.
Accordingly, the motion to strike the answer is DENIED.
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Case Name: Leija v. Indian Health Center, et al.
Case No.: 1-14-CV-261381
Defendant Indian Health Center of Santa Clara Valley (also erroneously sued as Indian
Health Center) (“IHC”) moves for summary judgment against plaintiff Sheree Leija
(“Plaintiff”).
IHC’s motion for summary judgment is DENIED. Plaintiff’s claims for negligence
and premises liability do not fall within the scope of 42 U.S.C. § 233 and therefore are not
subject to the administrative exhaustion requirement of the Federal Tort Claims Act.
Consequently, IHC’s assertion that the Court lacks subject matter jurisdiction in this action is
without merit.
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