SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 6, Honorable Theodore C. Zayner Presiding
Maggie Marin, Courtroom Clerk
191 North First Street, San Jose, CA 95113
Telephone: 408-882-2160
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW AND MOTION TENTATIVE RULINGS
DATE: 3/3/16
TIME: 9 A.M.
PREVAILING PARTY SHALL PREPARE THE ORDER
(SEE RULE OF COURT 3.1312)
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CASE #
CASE TITLE
RULING
2015-1-CV-287724 S. Than v K. Vuong, et al Control/Click Line 1 for tentative ruling.
2015-1-CV-287724 S. Than v K. Vuong, et al Off Calendar. Moving Defendant
dismissed.
2015-1-CV-287724 S. Than v K. Vuong, et al Off Calendar. Moving Defendant
dismissed.
2013-1-CV-243575 T. Sanchez v Brittain
Control/Click Line 4 for tentative ruling.
2014-1-CV-274340 Back v Lamberto
Off Calendar per moving party.
2015-1-CV-281488 Divens v Brooks
Off Calendar
2015-1-CV-281488 Divens v Brooks
Off Calendar
2015-1-CV-282922 B. Gonzalez v Haro’s
Counsel are ordered to appear. In light of
Metal Finishing, Inc.
Plaintiff’s Reply, counsel must meet and
confer and will be ordered to do so at the
hearing to resolve any remaining issues.
2015-1-CV-282922 B. Gonzalez v Haro’s
Metal Finishing, Inc.
LINE 10 2015-1-CV-288690 Peter Englander v
Lifetime Brands, Inc.
LINE 11 2014-1-CV-264172 Cavalry SPV I, LLC v
Gutierrez
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LINE 12 2014-1-CV-267818 Saranchuk v Taylor
Motion for Leave to File First Amended
Complaint. No Opposition. GRANTED.
Motion to Approve Settlement. No
Opposition. GRANTED.
Plaintiff’s Motion to Transfer Venue to
Sacramento County. Complaint not yet
served. GRANTED. Plaintiff shall pay all
necessary court costs for transfer of venue.
Motion to Withdraw as Counsel. No
Opposition. GRANTED. Order on
mandatory Judicial Council Form must
include all information for client’s last
known address and contact information,
and be promptly served per CCP. Case
Management Conference remains as set on
3/15/16 at 10 a.m. in Department 6.
SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 6, Honorable Theodore C. Zayner Presiding
Maggie Marin, Courtroom Clerk
191 North First Street, San Jose, CA 95113
Telephone: 408-882-2160
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW AND MOTION TENTATIVE RULINGS
LINE 13 2013-1-CV-239638 Hartmeier v.
Producepoint
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Plaintiff’s Motion to Enforce Settlement
Agreement under Code of Civil Procedure
§664.6. No Opposition. GRANTED.
Plaintiff’s Counsel to submit proposed
Order.
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Case Name: Steven Than v. Kevin Nguyen Vuong, et al.
Case No.: 2015-1-CV-287724
As an initial matter the Court notes that the Demurrer and Motion to Strike by former
Defendant Rubin Lishan Chen (lines 2 and 3) are off calendar as Chen was dismissed from this
action on February 18, 2016.
This is an action alleging fraud in the purchase of real estate. Currently before the
Court is the Motion to Quash Service of Summons by Defendants Kevin Nguyen Vuong
(“Vuong”), Suong Thao Phung (“Phung”) and K&S Realty, Inc. (collectively, “Defendants”).
“When a defendant challenges the court’s personal jurisdiction on the ground of
improper service of summons the burden is on the plaintiff to prove . . . the facts requisite to an
effective service.” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413; see also Lebel
v. Mai (2012) 210 Cal.App.4th 1154, 1163.) In meeting this burden, the filing of a proof of
service creates a rebuttable presumption that service was proper, so long as the proof of service
complies with applicable statutory requirements. (California Evidence Code §647; Dill v.
Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1442 (“Dill”); Floveyor Internat., Ltd.
v. Super. Ct. (1997) 59 Cal.App.4th 789, 795; Hearn v. Howard (2009) 177 Cal.App.4th 1193,
1205.) The rebuttable presumption can only be dispelled by contradictory evidence. (See Craig
v. Brown & Root (2000) 84 Cal.App.4th 416, 421 (“Craig”).) Once the presumption is
dispelled, the trier of fact shall determine the existence or non-existence of the fact from the
evidence and any appropriate inferences that may be drawn from it. (Bonzer v. City of
Huntington Park (1993) 20 Cal.App.4th 1474, 1479.) Thus, once the presumption of proper
service is gone, the trier of fact must weigh the evidence and decide whether or not service was
effected pursuant to the applicable statutory requirements. (See Craig, supra, 84 Cal.App.4th at
421-22 [“‘[I]f a party proves that a letter was mailed, the trier of fact is required to find that the
letter was received in the absence of any believable contrary evidence. However, if the adverse
party denies receipt, the presumption is gone from the case. The trier of fact must then weigh
the denial of receipt against the inference of receipt arising from proof of mailing and decide
whether or not the letter was received.’”].)
“‘It is well settled that strict compliance with statutes governing service of process is
not required. Rather, in deciding whether service was valid, the statutory provisions regarding
service of process should be liberally construed to effectuate service and uphold the
jurisdiction of the court if actual notice has been received by the defendant.’ (Summers v.
McClanahan (2006) 140 Cal.App.4th 403, 410-411.) Substitute service shall be “liberally
construed to effectuate service and uphold jurisdiction if actual notice has been received by the
defendant . . .” (Bein v. Brechtel-Jochim Group, Inc. (1992) 6 Cal.App.4th 1387, 1392.) “[A]
finding of substantial compliance can only be sustained where (1) the record shows partial or
colorable compliance with the requirement on which the objection is predicated; (2) the service
relied upon by the plaintiff imparted actual notice to the defendant that the suit was pending
and that he was bound to defend; and (3) the manner and objective circumstances of service
were such as to make it highly likely that it would impart such notice.” (Carol Gilbert, Inc. v.
Haller (2009) 179 Cal.App.4th 852, 855.)
The motion to quash is DENIED as to Defendant K&S Realty, Inc. Defendant K&S
Realty (“K&S”) has failed to rebut the presumption of proper service created by the filing of
the proof of service by Plaintiff. K&S was served via substitute service on its agent for service
of process (Defendant Kevin Vuong) designated to the California Secretary of State at the
address provided to the Secretary of State. There is no requirement of reasonable diligence
before a business entity can be served via substitute service and Defendants have offered no
evidence that K&S was not served at the proper address for its designated agent for service of
process or that substitute service was not made on a competent adult at that address.
The Motion is also DENIED as to Defendant Vuong. Regardless of whether Defendant
Vuong was properly served via substitute service in his individual capacity at K&S Realty’s
place of business, he had actual notice of this lawsuit as the designated agent for service of
process for Defendant K&S, which was properly served via substitute service at the address
provided to the Secretary of State as required under Corporations Code §1502 with a copy then
mailed to that address. Accordingly Plaintiff has shown “substantial compliance” with the
service statutes sufficient to defeat the motion as it relates to Defendant Vuong.
Finally the motion is also DENIED as to Defendant Phung. While the two attempts at
personal service during business hours was enough to demonstrate reasonable diligence before
attempting substitute service on Phung, Ms. Phung’s denial in her declaration that she received
a copy of the Complaint in the mail is sufficient evidence to dispel the rebuttable presumption
of proper substitute service. At this point the Court becomes the trier of fact and must weigh
the evidence before it and decide whether or not substitute service was effected. Weighing
Defendant Phung’s denial against the declarations of Plaintiff’s counsel Sarah Hammerstad and
Plaintiff’s process server Anthony Kevin Andrada (attached as exhibits E & F to the
Hammerstad Declaration), the Court finds that Plaintiff has demonstrated sufficient proof of
proper service on Defendant Phung with the summons and Complaint by substitute service –
and that Defendant Phung (and Defendant Vuong) actually received copies mailed to 3005
Silver Creek Road #182, San Jose, CA 95121. The declarations of due diligence by Mr.
Andrada in particular are persuasive, as they set forth specific facts supporting Plaintiff’s
version of events that Defendant Phung’s declaration does not address.
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Case Name: Sanchez v. Brittain
Case Number: 2013-1-CV-243575
Defendants’ Motion to Compel Physical Examination
Defendants bring this motion to compel, on shortened time, and request that Plaintiff
Thomas Sanchez submit to a third medical examination by a physician selected by Defendants.
Both parties acknowledge that Plaintiff has previously been examined – upon request and
agreement between counsel – by two physicians with different medical specialties selected by
Defendants. Plaintiff has been examined by an orthopedic surgeon and by a neuropsychologist.
This request and motion for a third medical examination is noticed for a physician who is a
specialist in neurology.
The Court has carefully reviewed and considered all papers and arguments submitted,
which enlighten the Court as to the nature and extent of the physical injuries claimed by
Plaintiff. The Court acknowledges that the statutes authorizing one physical examination in any
personal injury action (Code of Civil Procedure §§2032.210, et seq.) and a motion to compel a
physical examination “for good cause shown” (CCP §§2032.310, 2032.320) do not necessarily
preclude multiple examinations, if good cause were to be shown. (See Shapiro v. Superior
Court (1990) 224 Cal.App.3d 1249, 1255.)
The Court finds that sufficient good cause has not been demonstrated to justify an order
that Plaintiff undergo a third medical examination by a physician/specialist chosen by the
Defendants. Nothing appears to have changed in the nature and extent of Plaintiff’s condition
and claimed injuries, aside from their duration. Plaintiff has continued to be treated by the
same medical providers since the subject motor vehicle collision in 2011, who apparently have
made recent recommendations for additional treatment. Defendants have previously had
Plaintiff examined by two physicians, whose respective specialties appear sufficient to
encompass the totality of Plaintiff’s claimed injuries. Moreover, Defendants and their medical
experts – which could include the designated neurologist – presumably will have full access to
all of Plaintiff’s medical records, diagnostic test results, imaging studies and any other
pertinent clinical records, and may appropriately be asked at trial to offer expert opinions.
Defendants’ motion to compel is DENIED. Defendants’ request for sanctions is
DENIED. The Notice of Motion contains no basis for monetary sanctions. CCP §2032.050,
cited in the papers, is inapposite. CCP §§2031.410 and 2032.420 do not apply, as there has
been no failure to comply with either an appropriate request or a court order for examination.
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