In the Superior Court of the State of California in and for the County of San Mateo

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

Law and Motion Calendar Judge: HONORABLE ROBERT D FOILES Department 21

400 County Center, Redwood City Courtroom 2J

Friday, September 24, 2021

IF YOU INTEND TO APPEAR ON ANY CASE ON THIS CALENDAR, YOU MUST DO EITHER #1 OR #2, AND YOU MUST DO #3 OF THE FOLLOWING:

1. EMAIL [email protected] BEFORE 4:00 P.M. CONTEMPORANEOUSLY COPIED TO ALL PARTIES OR THEIR COUNSEL OF RECORD. IF BY EMAIL, IT MUST INCLUDE THE NAME OF THE CASE, THE CASE NUMBER, AND THE NAME OF THE PARTY CONTESTING THE TENTATIVE RULING

2. YOU MUST CALL (650) 261-5121 BEFORE 4:00 P.M. AND FOLLOW THE INSTRUCTIONS ON THE MESSAGE.

3. You must give notice before 4:00 P.M. to all parties of your intent to appear pursuant to California Rules of Court 3.1308(a)(1). Failure to do both items 1 or 2, and 3 will result in no oral presentation.

At this time, appearances can be by Zoom Video or by Personal Appearance. Sign in using your first and last name. Mute your line until your case is called. RECORDING OF A COURT PROCEEDING IS PROHIBITED.

PERSONAL APPEARANCES ALLOWED.

Zoom Video Information: NEW CREDENTIALS BELOW (AS OF 07/13/21): https://sanmateocourt.zoomgov.com/ Meeting ID: 161 328 2775 Password: 392539 Please note: Zoom Meeting can be joined directly from Judge Foiles’ page on the court’s website.

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

Case Title / Nature of Case

September 24, 2021 Law and Motion Calendar PAGE 2 Judge: HONORABLE ROBERT D FOILES, Department 21 ______

9:00 LINE: 1 21-CIV-00454 SONIA MARISOL CRUZ VS. SM FOSTER CITY SCHOOL DISTRICT

SONIA MARISOL CRUZ JOSE Z. MARIN SAN MATEO FOSTER CITY SCHOOL DISTRICT ERICA C. GONZALEZ

MOTION TO COMPEL RESPONSES TO FORM INTERROGATORIES FOR MONETARY SANCTIONS BY PLAINTIFF W.R.C., A MINOR CHILD, BY AND THROUGH GUARDIAN AD LITEM, SONIA MARISOL CRUZ TENTATIVE RULING:

The motion is DENIED without prejudice for failure to hold an Informal Discovery Conference prior to filing the motion as required by Local Rule 3.700. The motion may be re-noticed, if necessary, after the conclusion of an Informal Discovery Conference.

September 24, 2021 Law and Motion Calendar PAGE 3 Judge: HONORABLE ROBERT D FOILES, Department 21 ______

9:00 LINE: 2 21-CIV-00582 DANIEL JAY GLATT, ET.AL. VS. JAGDEV RAM, ET.AL.

DANIEL JAY GLATT MICHAEL MENGARELLI JAGDEV RAM CHARLES J. SMITH

MOTION TO SET ASIDE ENTRY OF DEFAULT UNDER CCP 473 & 473.5 BY DEFENDANTS JAGDEV RAMAND PRITO RAM, TRUSTEE, JUAN C. GARCIA NAVARRO, DBA CARLOS TREE SERVICE TENTATIVE RULING:

Defendants Jagdev Ram’s, Prito Ram’s, and Juan C. Garcia Navarro, dba Carlos Tree Service’s Motion to Set Aside Default, filed 8-4-21, is DENIED WITHOUT PREJUDICE. Code Civ. Proc. Sect. 473.

Code Civ. Proc. Sect. 473(b) states: “Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted …” Here, the moving defendants have not filed copies of their proposed Answers or other pleading proposed to be filed.

Further, the moving defendants have not filed a Proof of Service (POS) for the Motion. Although the supporting attorney Declaration of Charles Smith includes a proper POS, the POS attached to the Motion itself refers to service of an “Answer” to the Complaint.

The Court notes that it exercises a liberal policy of granting relief from default, particularly in cases involving attorney fault. Having reviewed the Motion, while it is procedurally defective, it appears that if re-filed properly, it likely will be granted. Rather than engage in further motion practice, defense counsel may want to speak with Plaintiff’s counsel regarding the possibility of an agreement to set aside the defaults. See The Rutter Group: Civ. Proc. Before Trial, Sect. 5:293 (“Since relief is mandatory when an ‘attorney affidavit of fault’ is filed, most of these cases should be handled outside of court. Before filing your motion, contact opposing counsel and attempt to resolve the matter.”).

September 24, 2021 Law and Motion Calendar PAGE 4 Judge: HONORABLE ROBERT D FOILES, Department 21 ______

9:00 LINE: 3 21-CIV-01962 MICHAEL SZELENYI VS. ANDREW OLDHAM, ET.AL.

MICHAEL SZELENYI DHAIVAT H. SHAH ANDREW OLDHAM ADAM L. PEDERSEN

HEARING ON DEMURRER TO PLAINTIFF MICHAEL SZELENYI’S FIRST AMENDED COMPLAINT BY DEFENDANTS ANDREW OLDHAM, JENNIFER OLDHAM, OLDHAM PROFESSIONAL GROUP TENTATIVE RULING:

A. Demurrer to Entire Complaint

Demurrer to all causes of action on the ground that Plaintiff failed to make a demand to the Board of Directors is overruled. A plaintiff claiming demand futility must show particularized facts creating a reasonable doubt that (1) the directors are disinterested in and independent of the challenged transaction; or (20 the challenged transaction was otherwise the product of a valid exercise of business judgment. (Charter Township of Clinton Police & Fire Retirement System v. Martin (2013) 219 Cal.App.4th 924, 935-940; Bader v. Anderson (2009) 179 Cal. App. 4th 775, 787.) The test is disjunctive.

A director is not “disinterested” if the alleged facts demonstrate a potential personal benefit or detriment to the director as a result of the challenged transaction. (Bader, supra, at 792.) Directors are not “independent” when the wrongdoing was committed by a director who so dominated the board that it would be “inconceivable” that any demand would result in corporate action against the dominant director. (Id.) Demand on the board would clearly be futile where a majority of the directors are alleged to have been involved in the wrongful conduct. Here, a demand on the board would in effect be a request to the directors that they sue themselves. (Reed v. Norman (1957) 152 Cal. App. 2d 892, 898–99.) reVIS had just three directors, two of whom are the alleged wrongdoers. The Complaint alleges that Defendants OLDHAM and SIEM are the ones who breached their duties to reVIS. Those allegations are sufficient to allege that a demand upon the Board would have been futile, since Defendants OLDHAM and SIEM are not realistically likely to have authorized suit against themselves.

The Complaint sufficiently alleges that a pre-litigation demand to the Board would have been futile. Demurrer for lack of standing is overruled. September 24, 2021 Law and Motion Calendar PAGE 5 Judge: HONORABLE ROBERT D FOILES, Department 21 ______

B. Demurrer to First and Second Causes of Action (Breach of Fiduciary Duty, Breach of Duty of Loyalty)

Demurrers to the first and second causes of action (breach of fiduciary duty, breach of duty of loyalty) are overruled.

1. The FAC Sufficiently Alleges Facts Constituting a Breach

The alleged breach was the contracting away of reVIS’s contract benefits, to the detriment of reVIS, a corporation of which Defendants are officers. The entire transaction was effected without Defendants’ presenting it to a disinterested board (i.e., Plaintiff). (FAC ¶¶ 17- 22.) If proven, these allegations could support a finding that Defendants breached their fiduciary duties to the corporation.

2. The FAC Sufficiently Rebuts the Business Judgment Rule

When a claim alleges breach of a fiduciary duty, the complaint must allege facts to rebut the presumption of the business judgment rule. The presumption can be rebutted by allegations of facts which, if proven, would establish fraud, bad faith, overreaching or an unreasonable failure to investigate material facts. (Lee v. Interinsurance Exch. (1996) 50 Cal. App. 4th 694, 715.) The Complaint sufficiently alleges facts, which, if proven, could constitute bad faith and overreaching on the part of Defendants. (FAC ¶¶ 17-22.) Further, the FAC alleges that Defendants took control of reVIS’s management, database, and email software services in order to take control of real estate leads for OPG’s benefit and to reVIS’s detriment. (FAC ¶ 27.) If proven, the allegations would rebut the presumption of the business judgment rule.

C. Fourth Cause of Action (Waste)

Demurrer to the fourth cause of action is overruled. To state a claim for waste that is legally sufficient to overcome the presumption of the business judgment rule, a plaintiff must allege facts showing that the benefit received by the corporation in the form of increased productivity and loyalty was such that “‘no person of ordinary, sound business judgment would deem it worth that which the corporation has paid.’“ (Grobow v. Perot (Del. 1988) 539 A.2d 180, 189.) The complaint must allege facts showing that “no person of ordinary sound business judgment could view the benefits received as a fair exchange for the consideration paid by the corporation.” (Marciano v. Nakash (Del.Supr. 1987) 535 A.2d 400, 405, fn. 3.) As set forth above, the complaint sufficiently alleges a rebuttal of the business judgment rule presumption.

D. Fifth Cause of Action (Breach of Contract) September 24, 2021 Law and Motion Calendar PAGE 6 Judge: HONORABLE ROBERT D FOILES, Department 21 ______

Demurrer to the fifth cause of action is overruled. The case on which the Demurrer relies pertains to real property leases. (Kern Sunset Oil Co. v. Good Roads Oil Co. (1931) 214 Cal. 435, 440.) The demurrer cites no authority applying Kern Sunset Oil to contracts in general. Further, waiver always rests upon intentional relinquishment of a known right after knowledge of the facts. (DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe & Takeout III, Ltd. (1994) 30 Cal. App. 4th 54, 60.) The Complaint does not allege that Plaintiff or reVIS intentionally relinquished any contract rights.

E. Sixth Cause of Action (Intentional Interference with Economic Advantage)

Demurrer to the sixth cause of action is overruled. The complaint sufficiently alleges prospective relationships with specified entities. (FAC ¶ 29.) The complaint also alleges acts that are wrongful independent of the tort of intentional interference

F. Eighth Cause of Action

Demurrer to the eighth cause of action is overruled. Defendants’ demurrer relies on law that was superseded in 1992. (Moving P&A at 13.) A single act may be sufficient to constitute an unfair business practice. (Madrid v. Perot Sys. Corp. (2005) 130 Cal. App. 4th 440, 463.)

G. Ruling

The demurrer of Defendants Andrew OLDHAM and Jennifer OLDHAM is overruled as to the entire complaint and to each cause of action. Defendants Andrew OLDHAM and Jennifer OLDHAM shall file their Answer or Answers no later than October 22, 2021, or two weeks after service of written notice of this ruling, whichever date is later.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiff shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.

September 24, 2021 Law and Motion Calendar PAGE 7 Judge: HONORABLE ROBERT D FOILES, Department 21 ______

9:00 LINE: 4 21-CIV-01962 MICHAEL SZELENYI VS. ANDREW OLDHAM, ET.AL.

MICHAEL SZELENYI DHAIVAT H. SHAH ANDREW OLDHAM ADAM L. PEDERSEN

MOTION TO STRIKE PORTIONS OF PLAINTIFF MICHAEL SZELENYI’S FIRST AMENDED COMPLAINT BY DEFENDANTS ANDREW OLDHAM, JENNIFER OLDHAM, OLDHAM PROFESSIONAL GROUP TENTATIVE RULING:

Defendants motion to strike is denied as to all matters.

A. Punitive Damages. The pleading alleges that Defendants intentionally and wrongfully caused reVIS to cease performing under the Existing Agreement and begin performing under the Revised Agreement, resulting in a materially adverse change in commissions to reVIS, without justification. (FAC ¶¶ 17-22.) The allegations sufficiently describe “conduct which is intended by the defendant to cause injury to the [corporation].” (Civ. Code § 3294, subd. (c).)

B. Attorney’s Fees. In a shareholder derivative action attorney’s fees to a plaintiff shareholder are recoverable when the derivative action results in a benefit to the corporation. Defendants’ Reply argues that fees are recoverable only by someone other than the shareholder bringing the suit. The sole authority cited by the Reply (Patrick v. Placer Corp) does not support that argument. Further, this argument is newly presented in the Reply, not the moving papers. Regardless, a motion to strike must be based “on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code of Civ. Proc. § 437.) Defendants’ contentions that reVIS is “all but disbanded with Plaintiff no longer a director and the only remaining directors being the Individual Defendants” and that “there is no entity that would profit or benefit from Plaintiff bringing this derivative action” are not reflected in the Complaint.

September 24, 2021 Law and Motion Calendar PAGE 8 Judge: HONORABLE ROBERT D FOILES, Department 21 ______

9:00 LINE: 5 21-UDL-00132 REDWOOD HOLDINGS, LLC VS. JANICE L. GENVO, ET.AL.

REDWOOD HOLDINGS, LLC SAM CHANDRA JANICE L. GENVO PRO PER

MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, FOR SUMMARY ADJUDICATION BY PLAINTIFF REDWOOD HOLDINGS, LLC TENTATIVE RULING:

Plaintiff’s request for judicial notice is granted. The court takes judicial notice of the recorded documents as to the fact the documents were recorded, the date of execution and recordation, the parties to the instruments and the legally operative language. Fontenot v. Wells Fargo Bank (2011) 198 Cal.App.4th 256.

The motion for summary judgment is granted. Plaintiff has met its burden to show that there is no defense to the action as it has proved each element of its cause of action for unlawful detainer. CCP §437c(p)(1). See Undisputed Material Facts 1-6; Declaration of Olivia Reyes; Declaration of Todd Brenneck; Exhibits 1-9.

Although defendant appeared at the initial hearing on the motion and the matter was continued so that she could present her opposition, she has not provided any argument or evidence to show the existence of a triable issue.

September 24, 2021 Law and Motion Calendar PAGE 9 Judge: HONORABLE ROBERT D FOILES, Department 21 ______

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POSTED: 3:00 PM