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SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 13, Honorable James L. Stoelker, Presiding
for
Department 2, Honorable Patricia M. Lucas
Bob Gutierrez, Courtroom Clerk
Aura Clendenen, Court Reporter
191 North First Street, San Jose, CA 95113
Telephone: 408. 882.2240
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW & MOTION TENTATIVE RULINGS
DATE: FEBRUARY 3, 2015
TIME: 9:00 A.M.
The prevailing party must prepare an order in compliance with Rule of Court 3.1312.
(SEE RULE OF COURT 3.1312)
LINE #
CASE #
CASE TITLE
RULING
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114CV268541 Mitlo v CDNetworks, Inc. Defendant’s Motion to Strike Portions of
Complaint is MOOT. First Amended
Complaint was filed January 26, 2015
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114CV269467 Mann v Do
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114CV271826 Oswald v The Golf Club at Off Calendar
Boulder Ridge
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114CV267753 Frye v Westside Group
Defendant has responded to the motions to
compel discovery by serving responses to
each item of discovery. Therefore, the
motions to compel are MOOT. However,
plaintiff was caused to bring these motions to
compel by defendant’s failure to serve timely
responses and, therefore, defendant and its
counsel shall pay monetary sanctions to
plaintiff in the total amount of $1,867.50.
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113CV252487 Cruden v Tidmarsh
No opposition is filed. Motion to Compel
Attendance and Testimony of Plaintiff at a
Deposition is GRANTED. Within 7 days,
the parties shall meet and confer regarding a
mutually convenient date for the deposition
to occur within 30 days. The deposition may
be videotaped at the request of defendant.
Plaintiff shall pay sanctions to defendant in
the amount of $836.00 within 10 days of the
date of the order.
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112CV228800 Ariba, Inc. v Omnicare,
Inc.
Continued to 2/17/15 so that motion can be
heard in D-2.
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112CV231685 CC-Palo Alto v County of Hearing continued to 3/19/15
Santa Clara
Click on line 2 for ruling
SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 13, Honorable James L. Stoelker, Presiding
for
Department 2, Honorable Patricia M. Lucas
Bob Gutierrez, Courtroom Clerk
Aura Clendenen, Court Reporter
191 North First Street, San Jose, CA 95113
Telephone: 408. 882.2240
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW & MOTION TENTATIVE RULINGS
LINE 8
113CV254777 Mansfield v Lychron
LINE 9
114CV261956 Carmichael v California No opposition is filed. However, the proof
Unemployment Insurance of service of the moving papers is incomplete
Appeals Board
and defective. The matter is OFF
CALENDAR.
LINE 10
114CV274971 Frohock v AMG Medical Defendant’s opposition was filed late.
However, the court, in its discretion, has
elected to consider the papers, especially
because Plaintiff had an opportunity to file a
reply. Plaintiff’s Motion for Preference of
Trial Setting is DENIED, without prejudice.
The case is not yet at issue. Evidentiary
support for the requirements of CCP section
36 (a) (2) is based solely on the inadmissible
hearsay declaration of counsel.
LINE 11
112CV223918 Portfolio Recovery
Associates v Palomino
Claim of Exemption
LINE 12
113CV252116 Orozco v WPC San Jose
Off Calendar
LINE 13
113CV253883 Melhem v Lowes Home Reassigned to Department 21
Improvement Warehouse
LINE 14
1114CV261697 Ford Motor Credit
Company v James
Reassigned to Department 21
LINE 15
114CV265974 Cobb v Bushner
Off Calendar
LINE 16
113CV252824 Kim v Vu
Continued to 3/3/15 per Stipulation and
Order
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Plaintiff’s Motion to Amend Complaint is
GRANTED. The amendment appears timely
and in the interest of justice. There is no
persuasive showing of prejudice to
defendant.
SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 13, Honorable James L. Stoelker, Presiding
for
Department 2, Honorable Patricia M. Lucas
Bob Gutierrez, Courtroom Clerk
Aura Clendenen, Court Reporter
191 North First Street, San Jose, CA 95113
Telephone: 408. 882.2240
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW & MOTION TENTATIVE RULINGS
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Case Name: Sahib Mann, individually and dba The Mann Sales Team v. Lam Do, et al.
Case No.:
1-14-CV-269467
Motion to Strike Plaintiff’s [First] Amended Complaint by defendants Lam Do,
individually and dba 3Dos LLC, Western Property Group, Inc., Barry Ford, and Sheila
Kerns
On October 16, 2014, plaintiff Sahib Mann, individually and dba The Mann Sales Team
(“Mann”), filed a Judicial Council form first amended complaint (“FAC”) which alleges
defendant Lam Do, individually and dba 3Dos LLC (“Do”), is the owner of premises located at
6010 Hellyer Avenue, Suite No. 1 in San Jose. (FAC, Attachment First Cause of Action, page 1,
lines 18 – 20.) According to Mann, Do filed an unlawful detainer action against Mann seeking to
recover possession of 6010 Hellyer Avenue, Suite 150. (FAC, Attachment First Cause of Action,
page 3, lines 10 – 23 and Exh. A.) Do obtained a judgment and writ of possession to recover
possession of 6010 Hellyer Avenue, Suite 150. (FAC, Attachment First Cause of Action, page 4,
lines 7 – 19 and Exh. C – D.) Mann, however, occupied possession of 6010 Hellyer Avenue,
Suite 1, not suite 150. (FAC, Attachment First Cause of Action, page 3, line 23 to page 4, line 6
and page 4, lines 20 – 22.) On July 1, 2014, defendants wrongfully evicted Mann from Suite 1.
(FAC, Attachment First Cause of Action, page 4, line 20 to page 6, line 6.)
Plaintiff Mann’s FAC asserts causes of action for:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
Forcible Detainer
Intentional Infliction of Emotional Distress
Defamation
Interference with Contractual Relations
Unfair Competition
General Negligence
Negligent Infliction of Emotional Distress
On November 14, 2014, defendants Do, Western Property Group, Inc., Barry Ford, and
Sheila Kerns filed a demurrer to the first, third, fourth, fifth, and sixth causes of action of the
FAC.
On December 19, 2014, defendants Do, Western Property Group, Inc., Barry Ford, and
Sheila Kerns (through associated counsel) filed the motion now before the court, a motion to
strike plaintiff’s FAC pursuant to the anti-SLAPP statute (CCP §425.16).
On January 8, 2015, the court (Hon. Lucas) sustained, in part, defendants’ demurrer to
the FAC with leave to amend.
On January 15, 2015, plaintiff filed a second amended complaint (“SAC”).
I.
Defendants’ special motion to strike the FAC is MOOT.
“An amended complaint filed before the anti-SLAPP motion renders moot an antiSLAPP motion directed to the prior complaint (so long as the amendment does not seek to
subvert or avoid a ruling on the anti-SLAPP motion).” (Weil & Brown et al., CAL. PRAC.
GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2014) ¶6:665.6, p. 6-170 citing
JKC3H8 v. Colton (2013) 221 Cal.App.4th 468, 477- 478—“So too does an amended complaint
render moot an anti-SLAPP motion directed to a prior complaint, with the following caveat: A
plaintiff or cross-complainant may not seek to subvert or avoid a ruling on an anti-SLAPP
motion by amending the challenged complaint or cross-complaint in response to the motion.”)
Plaintiff’s filing of the SAC renders the anti-SLAPP motion to the FAC moot. In
reviewing the SAC, the amendments do not appear to subvert or avoid a ruling on the antiSLAPP motion. Plaintiff continues to assert the same general allegations.
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