Superior Court, State of California
DATE: Tuesday, 28 September 2021
TIME: 9:00 A.M.
This Department prefers that litigants use Zoom for Law and Motion and for Case Management Calendars.
CourtCall is also acceptable.
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All Courts of California celebrate the diversity of the attorneys and the litigants who appear in our Courts. Do not hesitate to correct the Court or Court Staff concerning the pronunciation of any name or how anyone prefers to be addressed. As this Court is fond of saying, “with a name like mine, I try to be careful how I pronounce the names of others.” If your client is with you, please inform the Court how your client would prefer to be introduced. The Court encourages the use of diacritical marks, multiple surnames and the like for the names of attorneys, litigants and in court papers.
PLEASE READ THIS PAGE IN ITS ENTIRETY AS SOME OF THE PROTOCOLS HAVE CHANGED.
This Court expects all counsel and litigants to comply with the Tentative Rulings Procedures that are outlined in Local Civil Rule 7(E) and California Rules of Court, rule 3.1308. If the Court has not directed argument, oral argument must be permitted only if a party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party's intention to appear. A party must notify all other parties by telephone or in person. A failure to timely notify this Court and/or the opposing parties may result in the tentative ruling being the final order in the matter.
In light of COVID-19-related health concerns and due to the Order of the Public Health Department, Department 20 has resumed Law & Motion calendars but with safe-distancing protocols. Please check this tentative rulings page before making any appearance.
All proposed orders and papers should be submitted to this Department’s e-filing queue. Do not send documents to the Department email unless directed to do so.
APPEARANCES.
Please notify this Court immediately if the matter will not be heard on the scheduled date. California Rules of Court, rule 3.1304(b). If a party fails to appear at a law and motion hearing without having given notice, this Court may take the matter off calendar, to be reset only upon motion, or may rule on the matter. California Rules of Court, rule 3.1304(d).
While the Court will still allow physical appearances, all litigants are encouraged to use the Zoom platform for Law & Motion appearances and Case Management Conferences. Use of other virtual platform devices will make it difficult for all parties fully to participate in the hearings. Please note the requirement of entering a password (highlighted above.)
As for matters which require personal appearances, protocols concerning social distancing and facial coverings in compliance with the directives of the Public Health Officer will be enforced. Currently, facemasks are required in all courthouses. If you appear in person, it will be helpful if you wear a disposable paper mask while using the courtroom microphones so that your voice will not be muffled.
Whether appearing in person or on a virtual platform, the usual custom and practices of decor and attire apply.
Any uncontested matter or matters to which stipulations have been reached can be processed through the Clerk in the usual manner. Please include a proposed order.
Individuals who wish to access the Courthouse are advised to bring a plastic bag within which to place any personal items that are to go through the metal detector located at the doorway to the courthouse.
Sign-ins will begin at about 8:30 AM. Court staff will assist you when you sign in. If you are using the Zoom virtual platform, it will helpful if you “rename” yourself as follows: in the upper right corner of the screen with your name you will see a blue box with three horizontal dots. Click on that and then click on the “rename” feature. You may type your name as: Line #/name/party
If you are a member of the public who wishes to view the Zoom session and remain anonymous, you may simply sign in as “Public.”
The Santa Clara County Superior Court has established listen-only telephone Lines to allow remote access to public court proceedings. To listen to a public court proceeding in Department 20, you may dial 888-251-2909. When prompted, enter the access code number 4362730 when prompted, followed by the pound or hashtag (#) sign.
Court Reporters.
This session will not be recorded. No electronic recordings, video, still photography or audio capture of this live stream is allowed without the expressed, written permission of the Superior Court of California, County of Santa Clara. State and Local Court rules prohibit photographing or recording of court proceedings whether in the courtroom or while listening on the Public Access Line or other virtual platform, without a Court Order. See Local General Rule 2(A) and 2(B); California Rules of Court, rule 1.150.
This Court no longer provides for Court Reporters in civil actions except in limited circumstances. If you wish to arrange for a court reporter, please use Local Form #CV-5100. All reporters are encouraged to work from a remote location. Please inform this Court if any reporter wishes to work in the courtroom. This Court will approve all requests to bring a court reporter. Counsel should meet and confer on the use of a court reporter. Occasionally each side will retain a court reporter which leaves this Court in a conundrum as to which reporter will be the official reporter for the purposes of the hearing.
Protocols during the Hearings.
During the calling of any hearing, this Court has found that the Zoom video platform works very well. But whether using Zoom or any telephone, it is preferable to use a landline if possible. IT IS ABSOLUTELY NECESSARY FOR ALL INDIVIDUALS TO SPEAK SLOWLY. Plaintiff should speak first, followed by any other person. All persons should spell their names for the benefit of Court Staff. Please do not use any hands-free mode if at all possible. Headsets or earbuds of good quality will be of great assistance to minimize feedback and distortion.
If you appear in person, it will be helpful if you wear a disposable paper mask while using the courtroom microphones so that your voice will not be muffled. A party may give notice that he or she will not appear at a law and motion hearing and submit the matter without an appearance unless this Court orders otherwise. This Court will rule on the motion as if the party had appeared. California Rules of Court, rule 3.1304(c).
The Court will prepare the Final Order unless stated otherwise below or at the hearing. Counsel are to comply with California Rules of Court, rule 3.1312.
Troubleshooting Tentative Rulings.
If you see last week’s tentative rulings, you have checked prior to the posting of the current week’s tentative rulings. You will need to either “REFRESH” or “QUIT” your browser and reopen it. Another suggestion is to “clean the cache” of your browser. If you fail to do any of these, your browser may pull up old information from old cookies even after the tentative rulings have been posted.
Tentative Rulings Are Continued Below. Full Orders Are On The Following Pages.
|LINE # |CASE # |CASE TITLE |RULING |
|LINE 1 |17317054 |Michael T. Parsons et al. Daniel J. Shaw et al. |Order of Examination on Daniel J. Shaw in his capacity as |
| | | |Trustee of the Shaw 1993 Living Trust etc. |
| | | | |
| | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 2 |17317054 |Michael T. Parsons et al. Daniel J. Shaw et al. |Order of Examination on Daniel J. Shaw. |
| | | | |
| | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 3 |19CV356619 |Definitive Healthcare, LLC v. Medicalcue, Inc. |Order of Examination of Marie Alexander Doctor, |
| | | |as Chief Executive Officer of Medicalcue, Inc. |
| | | | |
| | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 4 |20CV362380 |Narcisco B. Hilo Jr. v. Lester D. Martinez, Lester D. |Motion of Defendants for Summary Judgment. |
| | |Martinez, DDS Professional Corporation |Defendants’ motion for summary judgment or, in the alternative, |
| | | |summary adjudication of plaintiff Hilo’s FAC is DENIED. |
| | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 5 |19CV359811 |Siham Yamout v. Better Care, Inc. |Motion of Plaintiff to Compel Vivian Dasalla, RN to Attend Deposition.|
| | | |OFF CALENDAR AT REQUEST OF MOVING PARTY. |
|LINE 6 |19CV359811 |Siham Yamout v. Better Care, Inc. |Motion of Plaintiff to Compel Yesenia Valencia to Attend Deposition. |
| | | |OFF CALENDAR AT REQUEST OF MOVING PARTY. |
|LINE 7 |19CV359811 |Siham Yamout v. Better Care, Inc. |Motion of Defendant to Compel Plaintiff’s Signature on Records |
| | | |Authorization. |
| | | |OFF CALENDAR AT REQUEST OF MOVING PARTY. |
|LINE 8 |20CV368062 |Cheryl Buck v. Blu Homes, Inc. |Motion of Plaintiff to Deem Requests for Admissions to Jason Jensen to|
| | | |Be Admitted. |
| | | |CONTINUED BY STIPULATION OF THE PARTIES TO 4 NOVEMBER 2021 AT 9:00 AM |
| | | |IN THIS DEPARTMENT. |
|LINE 9 |20CV368472 |Tesla, Inc. v. Rivian Automotive et al. |Motion of Plaintiff to Amend the Complaint. |
| | | |The motion of Tesla for leave to file its Fourth Amended Complaint is |
| | | |GRANTED. The Fourth Amended Complaint is deemed filed and served. |
| | | |Defendants will have 20 days leave within which to RESPOND. |
| | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 10 |20CV368472 |Tesla, Inc. v. Rivian Automotive et al. |Motion of Defendants Rivian Automotive, Inc. and Rivian Automotive LLC|
| | | |to Compel Plaintiff to Disclose Further Trade Secrets. |
| | | |PLEASE CHECK BACK AT 3:30 PM. |
|LINE 11 |20CV368472 |Tesla, Inc. v. Rivian Automotive et al. |Joinder Of Defendants Savayia Bero, Tami Pascale, Vince Tanner-Duran, |
| | | |Kim Wong and Andrea Zechmann in Motion of Defendants Rivian Automotive|
| | | |and Rivian Automotive LLC to Compel Plaintiff to Disclose Further |
| | | |Trade Secrets. |
| | | |PLEASE CHECK BACK AT 3:30 PM. |
|LINE 12 |20CV368472 |Tesla, Inc. v. Rivian Automotive et al. |Joinder Of Defendant Carrington Bradley in Motion of Defendants Rivian|
| | | |Automotive and Rivian Automotive LLC to Compel Plaintiff to Disclose |
| | | |Further Trade Secrets. |
| | | |PLEASE CHECK BACK AT 3:30 PM. |
|LINE 13 |20CV368472 |Tesla, Inc. v. Rivian Automotive et al. |Joinder Of Defendant Jessie Yoste in Motion of Defendants Rivian |
| | | |Automotive and Rivian Automotive LLC to Compel Plaintiff to Disclose |
| | | |Further Trade Secrets. |
| | | |PLEASE CHECK BACK AT 3:30 PM. |
|LINE 14 |2011-1-CV-192999 |Equable Ascent Financial v. Maria Montejano |Hearing of Claim of Exemption of Maria Montejano. |
| | | |The third-party claim of exemption is DENIED. |
| | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 15 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 16 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 17 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 18 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 19 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 20 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 21 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 22 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 23 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 24 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 25 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 26 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 27 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 28 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 29 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 30 | | |SEE ATTACHED TENTATIVE RULING. |
| | | |SEE ATTACHED TENTATIVE RULING. |
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Calendar Line 1
|SUPERIOR COURT, STATE OF CALIFORNIA | |
|COUNTY OF SANTA CLARA | |
| | |
|DEPARTMENT 20 | |
| | |
|161 North First Street, San Jose, CA 95113 | |
|408.882.2320 · 408.882.2296 (fax) | |
|smanoukian@ | |
| | |
| |(For Clerk's Use Only) |
|CASE No.: |17317054 |Michael T. Parsons et al. Daniel J. Shaw et al. |
|DATE: 28 September 2021 |TIME: 9:00 am |LINE NUMBER: 1, 2 |
|This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 20 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. |
|Any party opposing the tentative ruling must call Department 20 at 408.808.6856 and the opposing party no later than 4:00 PM on 27 September 2021. Please |
|specify the issue to be contested when calling the Court and Counsel. |
|---oooOooo--- |
|Orders of Examination on Daniel J. Shaw in his capacity as |
|Trustee of the Shaw 1993 Living Trust etc. |
|and Daniel J. Shaw. |
I. Statement of Facts.
Plaintiff filed this complaint on 27 August 2017.[1] Judgment by stipulation was entered on 3 May 2018.
An order of examination was set on 15 June 2021. Mr. Goreneveld appeared for Plaintiff and Mr. Daniel J. Shaw appears for Defendant. Mr. Shaw was duly sworn and the OEX was conducted outside of Court. The matter was continued to 10 August 2021 at 9:00 am.
On 10 August 2021, Messrs. Goreneveld and Shaw appeared for Plaintiff and Defendant, respectively. The following SDT were given to Plaintiff for distribution.
1. Heritage Bank of Commerce
2. MUFG Union Bank National Association
3. Bank of America National Association
The examination was taken outside of Court. The matter was continued to 28 September 2021 9:00am in Department 20. The parties agreed to distribute documents via Drop Box.
II. Motion for OEX.
Unless the parties agree otherwise, both parties are to appear in Department 20 at 9:00 AM. Social Distancing Protocols will be in effect, including the use of appropriate facial masks. As an alternative to appearing in Department 20, the parties are strongly urged to appear virtually whereby the appropriate oath will be administered by the Court and the parties may conduct the examination off-line and report back to the Court. The parties may meet and confer on how to conduct the examination remotely.
III. Tentative Ruling and Hearing.
The foregoing tentative ruling was duly posted.
|____________________________________ |_________________________________________________________ |
|DATED: |HON. SOCRATES PETER MANOUKIAN |
| |Judge of the Superior Court |
| |County of Santa Clara |
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Calendar Line 2
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Calendar Line 3
|SUPERIOR COURT, STATE OF CALIFORNIA | |
|COUNTY OF SANTA CLARA | |
| | |
|DEPARTMENT 20 | |
| | |
|161 North First Street, San Jose, CA 95113 | |
|408.882.2320 · 408.882.2296 (fax) | |
|smanoukian@ | |
| | |
| |(For Clerk's Use Only) |
|CASE No.: |19CV356619 |Definitive Healthcare, LLC v. Medicalcue, Inc. |
|DATE: 28 September 2021 |TIME: 9:00 am |LINE NUMBER: |
|This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 20 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. |
|Any party opposing the tentative ruling must call Department 20 at 408.808.6856 and the opposing party no later than 4:00 PM on 27 September 2021. Please |
|specify the issue to be contested when calling the Court and Counsel. |
|---oooOooo--- |
|Order of Examination of Marie Alexander Doctor, |
|as Chief Executive Officer of Medicalcue, Inc. |
I. Statement of Facts.
On 21 April 2020, Plaintiff obtained judgment by default against Defendant Medicalcue, Inc. in the amount of $21,068.04.
The Clerk issued a writ of execution on 30 June 2020 (San Francisco) and on 15 July 2020 (Santa Clara).
This OEX was set by order of this Court dated 6 July 2021.
The file does not show a proof of service upon Marie Alexander Doctor.
II. Conclusion and Order.
Assuming there has been proper service:
Unless the parties agree otherwise, both parties are to appear in Department 20 at 9:00 AM. Social Distancing Protocols will be in effect, including the use of appropriate facial masks. As an alternative to appearing in Department 20, the parties are strongly urged to appear virtually whereby the appropriate oath will be administered by the Court and the parties may conduct the examination off-line and report back to the Court. The parties may meet and confer on how to conduct the examination remotely.
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III. Tentative Ruling and Hearing.
The tentative ruling was duly posted.
|____________________________________ |_________________________________________________________ |
|DATED: |HON. SOCRATES PETER MANOUKIAN |
| |Judge of the Superior Court |
| |County of Santa Clara |
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Calendar Line 4
| | |
|SUPERIOR COURT, STATE OF CALIFORNIA | |
|COUNTY OF SANTA CLARA | |
| | |
|DEPARTMENT 20 | |
| | |
|161 North First Street, San Jose, CA 95113 | |
|408.882.2320 · 408.882.2296 (fax) | |
|smanoukian@ | |
| |(For Clerk's Use Only) |
|This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 20 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. |
|Any party opposing the tentative ruling must call Department 20 at 408.808.6856 and the opposing party no later than 4:00 PM on 20 September 2021. Please |
|specify the issue to be contested when calling the Court and Counsel. |
|---oooOooo--- |
|Order on Defendants’ Motion for Summary Judgment |
|or, in the Alternative, Summary Adjudication. |
I. Statement of Facts.
Plaintiff Narciso B. Hilo, Jr. (“Hilo”) and his wife, Myrna Grace Serrano-Hilo, were licensed dentists. (First Amended Complaint (“FAC”), ¶9.) In or about 1994, plaintiff Hilo and his wife established a dental practice in the city of Santa Clara located at 4767 Lafayette Street, Suite 104 (“Dental Practice”). (FAC, ¶¶9 – 10.)
On 12 June 2019, plaintiff Hilo’s wife passed away. (FAC, ¶11.) Plaintiff Hilo felt he was no longer physically and mentally able to focus on managing the dental office on his own. (Id.) In or about late June 2019, plaintiff Hilo had a discussion with defendant Lester D. Martinez (“Martinez”), plaintiff’s son-in-law and a licensed dentist. (FAC, ¶12.) Defendant Martinez orally agreed to take over management and operation of the Dental Practice for plaintiff Hilo. (FAC, ¶¶12 and 15.) Pursuant to the oral agreement, defendant Martinez would stand on title and ownership of Dental Practice for the sole benefit of plaintiff Hilo. (FAC, ¶15.)
On or about 17 July 2019, plaintiff Hilo hired an attorney to incorporate defendant Lester D. Martinez, Professional Dental Corp. (“Corporation”) to take over the ownership and management of the Dental Practice and hold said interest for plaintiff Hilo’s sole interest. (FAC, ¶13.) In the written agreement signed by the parties dated 5 August 2019, the amount of consideration was $100. (Id.) At no time did defendants pay plaintiff Hilo any consideration for the transfer of ownership of Dental Practice from plaintiff Hilo to defendants Martinez or Corporation. (FAC, ¶16.)
From July 2019 through September 2019, the Dental Practice sustained losses and plaintiff Hilo had to put approximately $8,000 into the Dental Practice to cover the shortage. (FAC, ¶18.) Plaintiff Hilo realized he could not continue to sustain this level of loss and wanted to sell the Dental Practice. (Id.)
In or about September 2019, plaintiff Hilo and defendant Martinez orally agreed that defendant Martinez would sell the Dental Practice for plaintiff Hilo, defendant Hilo would pay taxes and liabilities and would then give the remaining sale proceeds to plaintiff Hilo. (FAC, ¶19.)
On 30 November 2019, escrow closed on the sale of the Dental Practice to Dr. Jane Zarate, DDS for $340,000. (FAC, ¶20.) After deducting $34,000 in commissions and fees and another $34,500 for business expenses, approximately $270,000 was paid to defendants. (Id.) Instead of paying the $270,000 to plaintiff Hilo, defendant Martinez took the money and refused to give it to plaintiff Hilo as previously promised. (FAC, ¶21.) Defendant Martinez claimed he was legal owner of the Dental Practice and net sale proceeds belonged to him. (FAC, ¶21.) Despite numerous demands, defendants have refused to pay plaintiff Hilo the net sale proceeds totaling $270,000. (Id.)
On 24 January 2020[2], plaintiff Hilo filed a complaint against defendants Martinez and Corporation asserting causes of action for:
1) Breach of Contract
2) Fraud-Concealment
3) Fraud-Promise Without Intent to Perform
4) Conversion
On 27 April 2020, plaintiff Hilo filed the operative FAC[3] which continues to assert the same four causes of action asserted in the original complaint.
On 29 May 2020, defendants Martinez and Corporation filed an answer[4] to plaintiff Hilo’s FAC.
On 6 May 2021, defendants Martinez and Corporation filed the motion now before the court, a motion for summary judgment/ adjudication of plaintiff Hilo’s FAC.
II. Motions for Summary Judgment.
Any party may move for summary judgment. (Code of Civil Procedure, § 437c, subd. (a); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) The motion “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code of Civil Procedure, § 437c, subd. (c); Aguilar, supra, at p. 843.) The object of the summary judgment procedure is “to cut through the parties’ pleadings” to determine whether trial is necessary to resolve the dispute. (Aguilar, supra, at p. 843.)
The “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact…” (Aguilar, supra, 25 Cal.4th at p. 850; see Evidence Code, § 110.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Aguilar, supra, at p. 851.) A defendant moving for summary judgment may satisfy its initial burden either by producing evidence of a complete defense or by showing the plaintiff’s inability to establish a required element of the case. (Code of Civil Procedure, § 437c, subd. (p)(2); Aguilar, supra, at p. 853.)
If a moving defendant makes the necessary initial showing, the burden of production shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact. (Code of Civil Procedure, § 437c, subd. (p)(2); see Aguilar, supra, 25 Cal.4th at p. 850.) A triable issue of material fact exists “if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, supra, at p. 850, fn. omitted.) If the plaintiff opposing summary judgment presents evidence demonstrating the existence of a disputed material fact, the motion must be denied. (Id. at p. 856.)
Throughout the process, the trial court “must consider all of the evidence and all of the inferences drawn therefrom.” (Aguilar, supra, 25 Cal.4th at p. 856.) The moving party’s evidence is strictly construed, while the opponent’s is liberally construed. (Id. at p. 843.)
Similarly, “[a] party may seek summary adjudication on whether a cause of action, affirmative defense, or punitive damages claim has merit or whether a defendant owed a duty to a plaintiff. A motion for summary adjudication…shall proceed in all procedural respects as a motion for summary judgment.” (California Bank & Trust v. Lawlor (2013) 222 Cal.App.4th 625, 630, internal citations and quotation marks omitted.)
III. Analysis.
A. Procedural violation.
As a preliminary matter, the court notes that plaintiff Hilo’s opposition is untimely filed and served. Code of Civil Procedure section 437c, subdivision (b)(2) states, “Any opposition to the motion shall be served and filed not less than 14 days preceding the notice or continued date of hearing, unless the court for good cause orders otherwise.” Based on a hearing date of 28 September 2021, plaintiff Hilo’s opposition was due on 14 September 2021. Plaintiff Hilo did not file and serve opposition until 15 September 2021, one calendar day late.
California Rules of Court, rule 3.1300, subdivision (d) states, “No paper may be rejected for filing on the ground that it was untimely submitted for filing. If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate.”
Since the court has discretion to consider a late filed paper, since defendants have not demonstrated any prejudice from the late filing, and to avoid the expenditure of any further judicial resources, the court will look past this procedural violation and consider the opposition on its merits. However, plaintiff Hilo and his counsel are hereby admonished for the procedural violation. Any future violation may result in the court’s refusal to consider the untimely filed papers.
B. Defendants’ motion for summary adjudication of the first cause of action [breach of contract] is DENIED.
In the first cause of action, plaintiff Hilo alleges, in relevant part, “The parties have an oral agreement in which Defendants held and managed the Dental Practice for the sole benefit of Plaintiff. Moreover, the parties also had an oral agreement to sell the Dental Practice and thereafter Defendants would give all of the net sales proceeds from the sale of the Dental Practice to Plaintiff as alleged herein.” (FAC, ¶23.)
In moving for summary judgment/ adjudication of plaintiff Hilo’s first cause of action, defendants Martinez and Corporation argue the alleged oral agreements are barred by provisions of a written Business Sale Agreement (“BSA”) that plaintiff entered into. Defendants proffer evidence that on 5 August 2019, plaintiff Hilo, in his capacity as surviving trustee of the Hilo Family Living Trust, and defendant Martinez, in his capacity as president of defendant Corporation, entered into a written BSA regarding the subject dental practice.[5] The BSA contains a provision entitled, “Entire Agreement” which states: ““This Contract contains the entire agreement of the parties, and there are no other promises or conditions in any other agreement whether oral or written concerning the subject matter of this Contract. This Contract supersedes any prior written or oral agreements between the parties.”[6] Defendants contend any oral agreement prior to the 5 August 2019 BSA is barred by the parol evidence rule.
The parol evidence rule therefore establishes that the terms contained in an integrated written agreement may not be contradicted by prior or contemporaneous agreements. In doing so, the rule necessarily bars consideration of extrinsic evidence of prior or contemporaneous negotiations or agreements at variance with the written agreement. “[A]s a matter of substantive law such evidence cannot serve to create or alter the obligations under the instrument.” (Tahoe National Bank v. Phillips (1971) 4 Cal.3d 11, 23 [92 Cal. Rptr. 704, 480 P.2d 320] (Tahoe National Bank).) In other words, the evidentiary consequences of the rule follow from its substantive component—which establishes, as a matter of law, the enforceable and incontrovertible terms of an integrated written agreement.
(Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, 344 (Casa Herrera).)
The parol evidence rule is codified in Civil Code section 1625 and Code of Civil Procedure section 1856. (See Marani v. Jackson (1986) 183 Cal. App. 3d 695, 701 [228 Cal. Rptr. 518] (Marani).) It “generally prohibits the introduction of any extrinsic evidence, whether oral or written, to vary, alter or add to the terms of an integrated written instrument.” (Alling v. Universal Manufacturing Corp. (1992) 5 Cal.App.4th 1412, 1433 [7 Cal. Rptr. 2d 718] (Alling).)
(Casa Herrera, supra, 32 Cal.4th at p. 343.)
Defendants assert that because there exists an integration clause in the BSA, then any purported oral agreement (parol evidence) predating the BSA and related to the subject Dental Practice is barred as a matter of law. The court does not agree with defendants’ conclusion. As defendants’ own authorities indicate, the parol evidence rule “bars consideration of extrinsic evidence of prior or contemporaneous negotiations or agreements at variance with the written agreement.” (Id. at p. 344; emphasis added.)
Defendants have made no such showing that the alleged oral agreement for defendants to hold and manage the Dental Practice for plaintiff Hilo’s sole benefit and the allege oral agreement for defendants to sell the Dental Practice and to give all of the net sales proceeds from the sale of the Dental Practice to plaintiff Hilo is at variance with the BSA nor is it being used to vary, alter, or add to the terms of the BSA. “[W]hen the parol evidence which is offered is entirely consistent with and in no way changes or contradicts the written instrument, such parol evidence may be admitted.” (Bouchard v. Cole (1956) 143 Cal.App.2d 93, 98.)
Defendants have not met their initial burden to show that the parol evidence rule acts as a complete defense to the first cause of action. (See Code Civ. Proc., §437c, subd. (p)(2)—“A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.”)
Defendants contend another provision in the BSA also bars plaintiff Hilo’s breach of contract claim to the extent it is based on any oral agreement arising subsequent to the BSA. Defendants proffer evidence that the BSA contains a provision entitled “Amendments,” which states: “This Contract may be modified or amended in writing, if the writing is signed by the party obligated under the amendment.”[7] Defendants rely, in part, upon Marani v. Jackson (1986) 183 Cal.App.3d 695, 704 where the court adopted a treatise author’s interpretation of Civil Code section 1698[8] to mean that, “A contract in writing may be subsequently modified by an oral agreement only if (i) the written contract does not contain an express provision requiring that modification be in writing; and (ii) such oral agreement has been performed by the parties, which may consist of full performance by one party only to the oral agreement, or, as an executory oral agreement, is supported by a new consideration.”
In view of the express provision in the BSA requiring modifications to be in writing, defendants contend plaintiff Hilo’s assertion of a subsequent oral agreement fails. Here, defendants asset there are no additional written instruments (i.e., contracts/ agreements) between the parties to the BSA relating to the sale of the subject dental practice.[9] The court does not agree that any subsequent oral agreement “relating to” the sale of the subject Dental Practice is precluded. For Civil Code section 1698 to apply, the subsequent oral agreement must modify the BSA.
The alleged subsequent oral agreement (for defendants to sell the Dental Practice and give all net sale proceeds to Plaintiff) here does not modify the BSA. As the court understands plaintiff Hilo’s allegations, the BSA was merely one step in the process and its performance fully completed. The subsequent oral agreement does not modify the BSA as nothing remained in the BSA to be performed. Again, defendants have not met their initial burden to show that a provision of the BSA acts as a complete defense to the first cause of action.
As an alternative basis for summary adjudication of the first cause of action, defendants contend the alleged oral agreements are void for illegality. “[T]he illegal object of [a] contract precludes any recovery.” (Yoo v. Jho (2007) 147 Cal.App.4th 1249, 1251 (Yoo).) “No principle of law is better settled than that a party to an illegal contract cannot come into a court of law and ask to have his illegal objects carried out. The courts generally will not enforce an illegal bargain or lend their assistance to a party who seeks compensation for an illegal act.” (Yoo, supra, 147 Cal.App.4th at p. 1255; punctuation and citations omitted.)
“The object of a contract is the thing which it is agreed, on the part of the party receiving the consideration, to do or not to do.” (Civ. Code, §1595.) “The object of a contract must be lawful when the contract is made, and possible and ascertainable by the time the contract is to be performed.” (Civ. Code, §1596.) “Where a contract has but a single object, and such object is unlawful, whether in whole or in part, or wholly impossible of performance, or so vaguely expressed as to be wholly unascertainable, the entire contract is void.” (Civ. Code, §1598.) “Where a contract has several distinct objects, of which one at least is lawful, and one at least is unlawful, in whole or in part, the contract is void as to the latter and valid as to the rest.” (Civ. Code, §1599.)
Here, defendants contend plaintiff Hilo is not one of the enumerated individuals who can be a shareholder of a professional dental corporation. (See Corp. Code, §13401.5, subd. (n); Bus. & Prof. Code, §1800.) Defendants acknowledge there are provisions which allow plaintiff Hilo as the trustee of a trust which owns assets consisting of a deceased dentist’s dental practice to employ licensed dentists and dental assistants to continue operating the Dental Practice for a brief period of time upon the satisfaction of certain criteria. (See Bus. & Prof. Code, §§1625.3 – 1625.4.)[10] Defendants proffer evidence that plaintiff Hilo did not meet those requirements.[11] Consequently, defendants assert that any oral agreement which purports to give plaintiff Hilo ownership rights to the subject Dental Practice are void for illegality.
However, it is precisely because plaintiff Hilo understood that he could not maintain ownership of the Dental Practice that he entered into the alleged oral agreement with defendants to transfer ownership of the Dental Practice. In other words, the object of the alleged oral agreement was for plaintiff Hilo to divest himself of ownership through a transfer and subsequent sale. While he may not have complied with Business and Professions Code section 1625.4 for that period of time between his wife’s death and transfer of the Dental Practice to defendants[12], plaintiff Hilo sought to do precisely what the statute contemplates – sale of the Dental Practice, a valid and legal object. Even if the alleged oral agreements at issue here had, as their object, the continued operation of the subject Dental Practice, such an object is expressly contemplated by Business and Professions Code section 1625.3, albeit for a limited duration. Thus, it is this court’s opinion and finding that the alleged oral agreements are not void as having illegal objects.
Defendants’ motion for summary judgment or, in the alternative, summary adjudication of the first cause of action in plaintiff Hilo’s FAC is DENIED.
C. Defendants’ motion for summary adjudication of the second and third causes of action [fraud] is DENIED.
Defendants contend they cannot be liable for fraud where acting in accordance with the purported representations (oral agreements to hold and manage Dental Practice for plaintiff’s benefit; oral agreement to sell Dental Practice and give all net sale proceeds to plaintiff) would be illegal and/or plaintiff cannot justifiably rely on representations that have an illegal purpose. For the reasons discussed above, the court does not find the oral agreements (or representations) to be illegal or to have an illegal object/purpose.
Accordingly, defendants’ motion for summary judgment or, in the alternative, summary adjudication of the second and third causes of action in plaintiff Hilo’s FAC is DENIED.
D. Defendants’ motion for summary adjudication of the fourth cause of action [conversion] is DENIED.
“Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff's ownership or right to possession of the property; (2) the defendant's conversion by a wrongful act or disposition of property rights; and (3) damages.” (Lee v. Hanley (2015) 61 Cal.4th 1225, 1240; emphasis added.)
In seeking summary adjudication of the fourth cause of action, defendants contend plaintiff was not the owner of the Dental Practice and, consequently, had no entitlement to the net proceeds from a sale thereof. Plaintiff Hilo’s rights to proceeds from the sale of the Dental Practice stem from his oral agreement with defendants. For the reasons discussed above, defendants have not overcome plaintiff Hilo’s contractual rights.
Accordingly, defendants’ motion for summary judgment or, in the alternative, summary adjudication of the fourth cause of action in plaintiff Hilo’s FAC is DENIED.
IV. Tentative Ruling.
The tentative ruling was duly posted.
V. Case Management.
The matter is currently set for a Case Management Conference on 2 November 2021 at 10:00 AM and this Department. This Court will entertain resetting that CMC has a Trial Setting Conference in January or February.
VI. Order.
Defendants’ motion for summary judgment or, in the alternative, summary adjudication of plaintiff Hilo’s FAC is DENIED.
|___________________________ |______________________________________________ |
|DATED: |HON. SOCRATES P. MANOUKIAN |
| |Judge of the Superior Court |
| |County of Santa Clara |
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|SUPERIOR COURT, STATE OF CALIFORNIA | |
|COUNTY OF SANTA CLARA | |
| | |
|DEPARTMENT 20 | |
| | |
|161 North First Street, San Jose, CA 95113 | |
|408.882.2320 · 408.882.2296 (fax) | |
|smanoukian@ | |
| | |
| |(For Clerk's Use Only) |
|CASE No.: |20CV368472 |Tesla, Inc. v. Rivian Automotive, Inc., et al |
|DATE: 28 September 2021 |TIME: 9:00 am |LINE NUMBER: 9 |
|This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 20 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. |
|Any party opposing the tentative ruling must call Department 20 at 408.808.6856 and the opposing party no later than 4:00 PM on 28 September 2021. Please |
|specify the issue to be contested when calling the Court and Counsel. |
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|Order on Motion of Tesla, Inc. |
|For Leave to File Fourth Amended Complaint. |
I. Statement of Facts.
Plaintiff filed the original complaint complaint on 17 July 2020.[13] plaintiff amended the complaint as a matter of right one month later. The first two complaints alleged violations of the Uniform Trade Secrets Act, breach of contract, and intentional interference with contract.
On 19 October 2020, plaintiff moved ex parte to amend the complaint again. On 26 October 2020, plaintiff filed the second amended complaint which added a claim for violation of the California Computer Access and Fraud Act.
By stipulation of the parties, plaintiff filed a third amended complaint on 12 May 2021. Defendants answered the complaint on or about 9 June 2021. Apparently the parties have not commenced discovery because of issues pertaining to the disclosure of trade secrets by plaintiff.
II. Motion For Leave to Amend the Complaint.
Plaintiff now seeks to file a fourth amended complaint pertaining to recently-discovered allegations of undisputed theft of “. . . . .highly proprietary trade secret battery technology [which] only recently came to light.” (Tesla’s Memorandum of Points & Authorities, page 1, lines 10-11.)
Defendants oppose the motion, claiming that the proposed amendment would dramatically expand the scope of the case after a year of delay which would cause prejudice to the defendants. Defendants also claim that the allegations are conclusory and unsupported by facts. Finally, the proposed amendment would require that this matter be designated as “complex.”
III. Analysis.
“The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading.” (Code of Civil Procedure, § 473(a)(1).) “Any judge, at any time before or after the commencement of trial, in furtherance of justice, and upon such terms as may by proper, may allow the amendment of any pleading.” (Code of Civil Procedure, § 576.)[14]
The court’s discretion must usually be exercised liberally to permit amendment of the pleadings. (See The Rutter Group California Practice Guide: Civil Procedure Before Trial §6:638, citing Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939; Mabie v. Hyatt (1998) 61 Cal.App.4th 1428.) If the granting of a timely motion for leave to amend “will not prejudice the opposing party, it is error to refuse permission to amend, and where the refusal also results in a party being deprived of the rights to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.)
The California Supreme Court has held that under Code of Civil Procedure, § 473(a)(1) there is a “strong policy in favor of liberal allowance of amendments.” (Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 297.) As stated in California Casualty General Insurance Company v. Superior Court (Gorgei) (1985) 173 Cal.App.3d 274, 279, “the cases have established a policy of great liberality in allowing such amendments at any stage of the proceeding.”
There are a number of factors which guide the court in determining how to exercise this discretion, any one of which justifies the denial of leave to amend, this proposed amendment raises two in particular; timeliness of the motion, and failure to state a cause of action.
First, the court must “apply a policy of liberality in permitting amendments at any stage of the proceeding . . . when no prejudice to the opposing party is shown.” (Duchrow v. Forrest (2013) 215 Cal.App.4th 1359, 1377.) However, “even if a good amendment is proposed in proper form, unwarranted delay in presenting it may—of itself—be a valid reason for denial. (Huff v. Wilkins (2006) 138 Cal.App.4th 732, 736; see Bank of America Nat. Trust & Savings Ass’n v Goldstein (1938) 25 Cal.App.2d 37, 40-42 [defendant requested to amend over a year after initial complaint, and more than five months after answer].)
Second, “if the proposed amendment fails to state a cause of action, it is proper to deny leave to amend.” (Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 230.) Additionally, leave to amend should not be granted if the amendment would likely be futile. (Vaillette v Fireman’s Fund Ins. Co. (1993) 18 Cal.App.4th 680, 685.) Here, defendants contend that Tesla has not alleged plausible facts to support its contention that defendants acquired confidential battery information. That contention has some appeal to it. However, discovery apparently has not commenced because of issues pertaining to the designation by Tesla of its trade secrets. Denying leave to amend at this junction might require Tesla to seek leave to amend after significant discovery has commenced. This Court will end up being back where this all starts, and this Court why the inevitable should be postponed. (See Civil Code, §§ 3528, 3532.)
As to whether the case would require to be designated as “complex,” there is nothing obvious to this Court that the matter is any more “complex”in logistics than any other case. This Court subscribes to the belief that every case is important and deserves appropriate attention.
The motion of Tesla for leave to file its Fourth Amended Complaint is GRANTED.
V. Case Management.
The Case Management Conference currently set for 15 February 2022 at 10:00 AM in this Department shall REMAIN AS SET.
VI. Conclusion and Order.
The motion of Tesla for leave to file its Fourth Amended Complaint is GRANTED. The Fourth Amended Complaint is deemed filed and served. Defendants will have 20 days leave within which to RESPOND.
|____________________________________ |_________________________________________________________ |
|DATED: |HON. SOCRATES PETER MANOUKIAN |
| |Judge of the Superior Court |
| |County of Santa Clara |
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|SUPERIOR COURT, STATE OF CALIFORNIA | |
|COUNTY OF SANTA CLARA | |
| | |
|DEPARTMENT 20 | |
| | |
|161 North First Street, San Jose, CA 95113 | |
|408.882.2320 · 408.882.2296 (fax) | |
|smanoukian@ | |
| | |
| |(For Clerk's Use Only) |
|CASE No.: |2011-1-CV-192999 |Equable Ascent Financial v. Maria Montejano |
|DATE: 28 September 2021 |TIME: 9:00 am |LINE NUMBER: 14 |
|This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 20 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. |
|Any party opposing the tentative ruling must call Department 20 at 408.808.6856 and the opposing party no later than 4:00 PM on 27 September 2021. Please |
|specify the issue to be contested when calling the Court and Counsel. |
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|Order on Third-Party Claim of Exemption. |
I. Statement of Facts.
The judgment creditor has given notice that it will not appear at the hearing.
In this legacy file, Plaintiff filed this complaint on 28 January 2011.
In an order signed and filed by Judge Kirwan on 20 December 2011, judgment on terminating sanctions was entered in favor of plaintiff and against defendant in the principal amount of $4,676.55; interest in the amount of $470.22; costs in the amount of $365.50; and attorneys fees/sanctions in the amount of $350.00.
Abstract of judgment was issued by this Court on on 16 December 2020. A writ of execution was issued on 27 January 2021.
II. Motion re: Third-Party Claim of Exemption.
Third-Party José Luis Rocha claims that he is not a party to the action but he does have interest in account number ending 9416 which has been levied upon under a writ of attachment, writ of execution etc. He declares that he and his sister, judgment debtor Maria Montejano, as a cosigner on the account to help improve her credit. However, all the money in the account is his. The balance of the count is $7,450.26.
Judgment creditor opposes the third-party claim of exemption. Judgment creditor claims that on 17 May 2021, the third-party claimant calls plaintiff’s office informing at the funds levied that $5000.37 were deposited by defendant to refinance property. As of 25 June 2021, the sum of $5,537.04 is currently being held by the Sheriff in and for the County of Los Angeles.
III. Analysis.
Third-Party José Luis Rocha has standing to claim the exemption as he is “a person acting on behalf of the judgment debtor.” (Code of Civil Procedure, §§ 703.020(b)(1).)
Code of Civil Procedure, §§ 703.080(a) and (b) state:
“(a) Subject to any limitation provided in the particular exemption, a fund that is exempt remains exempt to the extent that it can be traced into deposit accounts or in the form of cash or its equivalent.
(b) The exemption claimant has the burden of tracing an exempt fund.”
With respect to tracing, “Subject to any limitation provided in the particular exemption, a fund that is exempt remains exempt to the extent that it can be traced into deposit accounts or in the form of cash. . . . .” ([Code of Civil Procedure,] § 703.080, subd. (a), italics added.) The debtor has the burden of tracing exempt funds. (Id., subd. (b).)” (Sourcecorp, Inc. v. Shill (2012) 206 Cal.App.4th 1054, 1058-1059.)
There is no explanation provided by Mr. Rocha or by the judgment debtor about the source of the $5,000.37 that plaintiff contends that Mr. Rocha told plaintiff’s representative that those funds were deposited by defendant to refinance property. If those funds were indeed from earnings of the judgment debtor, this Court must assume that the judgment debtor’s basic necessities were satisfied without these funds. Therefore, any interest in protecting judgment creditor’s ability to satisfy the judgment holds sway in those funds lose their character as exempt earnings as a result. (See Sourcecorp, Inc. v. Shill, supra at 1060.)
The third-party claim of exemption is DENIED.
IV. Tentative Ruling and Hearing.
The Tentative Ruling was duly posted.
V. Case Management.
Deferred.
VI. Conclusion and Order.
The third-party claim of exemption is DENIED.
|____________________________________ |_________________________________________________________ |
|DATED: |HON. SOCRATES PETER MANOUKIAN |
| |Judge of the Superior Court |
| |County of Santa Clara |
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[1] This Department intends to comply with the time requirements of the Trial Court Delay Reduction Act (Government Code, §§ 68600–68620). The California Rules of Court state that the goal of each trial court should be to manage limited and unlimited civil cases from filing so that 100 percent are disposed of within 24 months. (Ca. St. Civil Rules of Court, Rule 3.714(b)(1)(C) and (b)(2)(C).
[2] This Department intends to comply with the time requirements of the Trial Court Delay Reduction Act (Government Code, §§ 68600–68620). The California Rules of Court state that the goal of each trial court should be to manage limited and unlimited civil cases from filing so that 100 percent are disposed of within 24 months. (Ca. St. Civil Rules of Court, Rule 3.714(b)(1)(C) and (b)(2)(C).
[3] The Request for Judicial Notice in Support of Defendants’ Motion for Summary Judgment, etc., is GRANTED insofar as the court takes judicial notice of the existence of the document, not the truth of matters contained therein. (Evid. Code, §452, subd. (d); see also People v. Woodell (1998) 17 Cal.4th 448, 455-- Evidence Code section 452 and 453 permit the trial court to “take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached—in the documents such as orders, statements of decision, and judgments—but [the court] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.”.)
[4] See fn. 2, above.
[5] See Separate Statement of Undisputed Material Facts in Support of Defendants’ Motion for Summary Judgment, etc. (“Defendants’ UMF”), Fact No. 16.
[6] See Defendants’ UMF, Fact No. 20.
[7] See Defendants’ UMF, Fact No. 21.
[8] In relevant part, Civil Code section 1698 states:
(a) A contract in writing may be modified by a contract in writing.
(b) A contract in writing may be modified by an oral agreement to the extent that the oral agreement is executed by the parties.
(c) Unless the contract otherwise expressly provides, a contract in writing may be modified by an oral agreement supported by new consideration. The statute of frauds (Section 1624) is required to be satisfied if the contract as modified is within its provisions.
[9] See Defendants’ UMF, Fact No. 22.
[10] Bus. & Prof. Code, section 1625.3, subdivision (a)(3) states, in relevant part, “Notwithstanding any other provision of law, upon the incapacity or death of a dentist, if the requirements of Section 1625.4 are met, any of the following persons may employ licensees and dental assistants and charge for the professional services they render for a period not to exceed 12 months from the date of the dentist’s death or incapacity without being deemed to be practicing dentistry within the meaning of Section 1625: … The named trustee or successor trustee of a trust or subtrust that owns assets consisting only of the incapacitated or deceased dentist’s dental practice and that was established solely for the purpose of disposition of the dental practice upon the dentist’s incapacity or death.
Bus. & Prof. Code, section 1625.4, subdivision (a) states, “Where the dental practice of an incapacitated or deceased dentist is a sole proprietorship or where an incapacitated or deceased dentist is the sole shareholder of a professional dental corporation, a person identified in subdivision (a) of Section 1625.3 may enter into a contract with one or more dentists licensed in the state to continue the operations of the incapacitated or deceased dentist’s dental practice for a period of no more than 12 months from the date of death or incapacity, or until the practice is sold or otherwise disposed of, whichever occurs first, if all of the following conditions are met:
(1) The person identified in subdivision (a) of Section 1625.3 delivers to the board a notification of death or incapacity that includes all of the following information:
(A) The name and license number of the deceased or incapacitated dentist.
(B) The name and address of the dental practice.
(C) If the dentist is deceased, the name, address, and tax identification number of the estate or trust.
(D) The name and license number of each dentist who will operate the dental practice.
(E) A statement that the information provided is true and correct, and that the person identified in subdivision (a) of Section 1625.3 understands that any interference by the person or by the person’s assignee with the contracting dentist’s or dentists’ practice of dentistry or professional judgment is grounds for immediate termination of the operations of the dental practice without a hearing. The statement shall also provide that if the person required to make this notification willfully states as true any material fact that the person knows to be false, the person shall be subject to a civil penalty of up to ten thousand dollars ($10,000) in an action brought by any public prosecutor. A civil penalty imposed under this subparagraph shall be enforced as a civil judgment.
(2) The dentist or dentists who will operate the practice shall be licensed by the board and that license shall be current, valid, and shall not be suspended, restricted, or otherwise the subject of discipline.
(3) Within 30 days after the death or incapacity of a dentist, the person identified in subdivision (a) of Section 1625.3 or the contracting dentist or dentists shall send notification of the death or incapacity by mail to the last known address of each current patient of record with an explanation of how copies of the patient’s records may be obtained. This notice may also contain any other relevant information concerning the continuation of the dental practice. The failure to comply with the notification requirement within the 30-day period shall be grounds for terminating the operation of the dental practice under subdivision (b). The contracting dentist or dentists shall obtain a form signed by the patient, or the patient’s guardian or legal representative, that releases the patient’s confidential dental records to the contracting dentist or dentists prior to use of those records.”
[11] See Defendants’ UMF, Fact Nos. 5 – 6.
[12] Bus. & Prof. Code section 1625.4, subd. (b) – (f) provides the Dental Board of California with an administrative remedy for the unauthorized operation of a dental practice.
[13] This Department intends to comply with the time requirements of the Trial Court Delay Reduction Act (Government Code, §§ 68600–68620). The California Rules of Court state that the goal of each trial court should be to manage limited and unlimited civil cases from filing so that 100 percent are disposed of within 24 months. (Ca. St. Civil Rules of Court, Rule 3.714(b)(1)(C) and (b)(2)(C).
[14] Rules of Court, rule 3.1324 states:
(a) Contents of motion
A motion to amend a pleading before trial must:
1) Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments;
2) State what allegation in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and
3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located
(b) Supporting declaration
A separate declaration must accompany the motion and must specify:
1) The effect of the amendment;
2) Why the amendment is necessary and proper;
3) When the facts giving rise to the amended allegation were discovered; and
4) The reasons why the request for amendment was not made earlier.
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TENTATIVE RULING PROTOCOL
Law & Motion matters are heard every Tuesday and Thursday at 9:00 a.m. Tentative rulings will be accessible on after 2:00 p.m. on the court date preceding the scheduled hearing at:
https: /wvvw.online services/tentatives/tentative rulings_Dept20.shtml
Tentative rulings will become Orders of the Court unless contested. See California Rules of Court, rules 3.1308(a)(l) and 3.1312.
To arrange an appearance to contest a tentative ruling, notify the Court at (408) 808.6856 before 4:00 PM on the court dates before the hearing. You may make your notification to the Court by leaving a message when prompted to do so at the end of the recorded greeting. When you leave your message, state only the case number, case name, the name of the attorney, telephone number, and a brief statement as to the portion of the tentative ruling to which objection is taken. Messages should be brief and notify the portion of the ruling to which objection is taken. Please try to keep the message under 30 seconds.
You must also notify opposing counsel. You do not need to call or leave a message if you are not contesting the tentative ruling.
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